Motions to Reopen in Immigration Court: How to Challenge an Old or In Absentia Removal Order in 2026

If You Have an Old Removal Order, There May Still Be a Path Forward

If you are reading this because ICE recently knocked on your door, or because a relative was just detained on an old removal order, or because you only learned years later that a deportation order was entered against you while you were absent, please take a breath. The fact that an order exists does not always mean the case is over. Federal regulations and the Immigration and Nationality Act both provide a specific procedure called a motion to reopen, and for in absentia orders that procedure can be used at any time, with an automatic stay of removal in many cases.

I am Jacob Binnall, a humanitarian immigration attorney in Massachusetts. I represent people in removal proceedings every week, including many who arrived in this country years ago, missed a single court date, and never knew an order had been entered until ICE showed up. According to recent data analyzed by NPR, the number of in absentia removal orders issued in Fiscal Year 2025 nearly tripled compared to the prior year, topping 50,000. Many of those orders are being acted on right now. This guide explains how a motion to reopen works, what the deadlines are, when removal is automatically stayed, and what evidence you need to put together a credible motion.

What a Motion to Reopen Actually Is

A motion to reopen is a written request asking an Immigration Judge or the Board of Immigration Appeals to reopen a closed case so that new facts, new evidence, or new legal arguments can be considered. The authority for these motions sits in two places. For motions filed with an Immigration Judge before whom proceedings were held, the controlling regulation is 8 CFR 1003.23. For motions filed with the Board of Immigration Appeals after the Board issued a decision, the controlling regulation is 8 CFR 1003.2. The statutory basis is INA section 240(c)(7), codified at 8 U.S.C. 1229a(c)(7).

A motion to reopen is different from a motion to reconsider. A motion to reconsider, governed by INA section 240(c)(6) and 8 CFR 1003.23(b)(2), argues that the judge made a legal or factual error based on the existing record. A motion to reopen argues that there is new evidence or a new factual development that was not available before. The two motions have different deadlines and different requirements, and they are sometimes filed together.

The General Rule: 90 Days, One Motion

Under INA section 240(c)(7)(A) and 8 CFR 1003.23(b)(1), the general rule for a motion to reopen is straightforward. A respondent may file only one motion to reopen, and it must be filed within 90 days of the final administrative order of removal. If the Immigration Judge issued the order and there was no appeal, the 90 days runs from the date of the judge's order. If the Board of Immigration Appeals affirmed or issued its own decision, the 90 days runs from the date of the BIA decision.

The 90-day deadline and the one-motion limit are strictly enforced. Filing late or filing a second motion under the general rule will usually result in denial. The good news is that there are several important statutory and regulatory exceptions to both limits, and many of the people who come to my office for help with a motion to reopen fit into one of those exceptions.

Exception 1: Rescinding an In Absentia Removal Order

This is the most important exception for people who are detained after years of believing they had no immigration case. An in absentia order is an order entered when a respondent fails to appear at a removal hearing. Under INA section 240(b)(5)(C) and 8 CFR 1003.23(b)(4)(ii), there are two pathways to rescind an in absentia order, each with different deadlines.

Lack of Notice or Custody

A motion to rescind an in absentia order based on lack of proper notice may be filed at any time. There is no deadline. The respondent must show that they did not receive written notice of the hearing as required by INA section 239(a)(1) (the Notice to Appear) or 239(a)(2) (a subsequent change of hearing notice), or that they were in federal or state custody and the failure to appear was through no fault of their own. This is the rule in 8 CFR 1003.23(b)(4)(ii).

Notice problems are very common. Many people gave a temporary address at the border, moved within weeks, never received forwarded mail from the immigration court, and never learned that a hearing had been scheduled. Others were given an NTA with no time or place listed, in violation of the Supreme Court's holding in Pereira v. Sessions, 585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021). After the Supreme Court's 2024 decision in Campos-Chaves v. Garland, 144 S. Ct. 1637, the legal framework for notice-based motions has narrowed, but the core rule still applies: if the government did not give you the notice required by either INA section 239(a)(1) or 239(a)(2), you can move to rescind.

Exceptional Circumstances

A motion to rescind an in absentia order based on exceptional circumstances must be filed within 180 days of the order under INA section 240(b)(5)(C)(i). The term "exceptional circumstances" is defined at INA section 240(e)(1) and means circumstances beyond the respondent's control, such as battery or extreme cruelty to the respondent or a child or parent, serious illness of the respondent, or serious illness or death of a spouse, child, or parent. Ordinary inconvenience, a forgotten date, or a traffic delay typically will not qualify.

The Automatic Stay

Under 8 CFR 1003.23(b)(4)(ii), filing a motion to rescind an in absentia removal order automatically stays the removal of the respondent pending the Immigration Judge's decision on the motion. This is one of the most powerful procedural tools in immigration law. If your loved one is in ICE custody on an in absentia order and the motion is filed properly, the deportation flight is supposed to be stopped while the judge decides whether to reopen. A parallel automatic stay rule for older pre-1997 deportation cases sits at 8 CFR 1003.23(b)(4)(iii)(C).

Exception 2: Changed Country Conditions

Under INA section 240(c)(7)(C)(ii) and 8 CFR 1003.23(b)(4)(i), there is no time or numerical limit on a motion to reopen that seeks asylum, withholding of removal, or protection under the Convention Against Torture, when the motion is based on changed country conditions arising in the country to which removal has been ordered. The evidence supporting the motion must be material and must not have been available or discoverable at the prior hearing.

This exception is not a do-over for cases that were poorly prepared the first time. The respondent must show what has actually changed in conditions inside the country, not simply what has changed in their personal situation. Examples include a coup or change in government, the emergence of a new persecutor group, a documented increase in violence against people sharing your protected characteristic, or a new policy of persecution that did not exist when the case was heard. Country reports from the State Department, reports from organizations such as Human Rights Watch and Amnesty International, news articles, and expert affidavits are typical forms of supporting evidence.

Exception 3: Joint Motions With DHS

Under 8 CFR 1003.23(b)(4)(iv), a motion to reopen filed jointly with the Department of Homeland Security is not subject to the 90-day deadline or the one-motion limit. This is sometimes called prosecutorial discretion in motion form. The ICE Office of the Principal Legal Advisor (OPLA) may agree to a joint motion when, for example, the respondent has since become eligible for relief such as adjustment of status through a new marriage to a U.S. citizen, or has earned an approved U-Visa or T-Visa petition. The current ICE OPLA policy on prosecutorial discretion has been narrowed in recent years, but joint motions still happen, especially in cases involving compelling humanitarian equities.

Exception 4: VAWA and Battered Spouse Motions

Under INA section 240(c)(7)(C)(iv), a respondent who has been battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident spouse or parent has a special motion to reopen rule. The motion may be filed within one year of the order of removal, with discretion to waive that deadline in cases of extraordinary circumstances or extreme hardship to the respondent's child. The motion may seek to apply for VAWA cancellation of removal, adjustment of status as a VAWA self-petitioner, or other VAWA-based relief.

Exception 5: Sua Sponte Reopening

Under 8 CFR 1003.23(b)(1) and 1003.2(a), the Immigration Judge and the BIA each have authority to reopen a case on their own motion (sua sponte) at any time. The case law makes clear, however, that sua sponte authority is reserved for "truly exceptional" situations. It is not a backdoor around the 90-day deadline. In recent years, the Attorney General has further restricted sua sponte authority, and the Board has been quite stingy with this remedy. A sua sponte request is sometimes the right strategy in unusual cases, but it should not be the only argument in a motion if any other exception is available.

Ineffective Assistance of Counsel: The Lozada Motion

Many old removal orders are the product of bad lawyering, notario fraud, or no lawyer at all. A motion to reopen based on ineffective assistance of counsel is governed by Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and requires three specific procedural showings. First, an affidavit from the respondent describing the agreement entered into with prior counsel and what prior counsel did or did not do. Second, evidence that prior counsel was informed of the allegations and given an opportunity to respond. Third, a statement of whether a complaint has been filed with the appropriate state bar disciplinary authorities, and if not, why not. In addition, the respondent must show prejudice, meaning a reasonable probability that the outcome would have been different but for prior counsel's errors.

The deadline for a Lozada motion is generally 90 days from the final order, but the time limit can be equitably tolled in many circuits, including the First Circuit, where the respondent did not discover the ineffective assistance until later despite due diligence. Equitable tolling is a fact-specific argument, and you should expect the government to oppose it.

What Goes Into a Motion to Reopen

A well-prepared motion to reopen contains the following components.

• A written motion that identifies the respondent, the case number, the date of the final order, and the legal basis for reopening (which exception applies)
• A memorandum of law arguing the legal grounds for reopening, with citations to the INA, the regulations, and controlling case law
• Sworn declarations from the respondent and any other witnesses who can speak to the facts
• Documentary evidence supporting the new facts, such as country conditions reports, medical records, police reports, marriage certificates, approval notices, school records, or correspondence
• A new application for the relief sought (for example, a Form I-589 if the motion is based on changed country conditions, or a Form I-485 if the motion is based on a new marriage)
• Proof of service on the opposing party (the ICE OPLA office for the relevant court)
• The filing fee or a fee waiver request on Form EOIR-26A

The 2026 Filing Fees

On January 21, 2026, the Department of Justice published an inflation adjustment notice at 91 Federal Register 2561 setting out the FY 2026 EOIR filing fees under the One Big Beautiful Bill Act (OBBBA), Public Law 119-21, signed July 4, 2025. The fees took effect February 1, 2026. For a motion to reopen or reconsider filed with an Immigration Judge, the total fee is $1,065 ($920 OBBBA fee plus the $145 base regulatory fee). For a motion to reopen or reconsider filed with the Board of Immigration Appeals, the total fee is $1,030 ($920 OBBBA fee plus the $110 base regulatory fee). A motion to reopen an in absentia removal order filed under INA section 240(b)(5)(C)(ii) is statutorily exempt from the new OBBBA fee.

If you cannot afford the filing fee, EOIR provides a fee waiver process. The request is filed on Form EOIR-26A, with a sworn declaration of inability to pay. The fee waiver request must be filed together with the motion. Filings postmarked on or after February 1, 2026 without the proper fee or an applicable fee waiver request will be rejected.

What Happens After You File

Under 8 CFR 1003.23(b)(1)(iv), the Immigration Judge sets and may extend the time for the opposing party (DHS through ICE OPLA) to respond to a motion to reopen. The current EOIR Immigration Court Practice Manual treats a motion as unopposed if no timely response is filed within the deadline the judge sets, with responses to motions to rescind in absentia orders generally due within ten days. The Immigration Judge or the BIA will then decide the motion on the papers, without a hearing in most cases. If the motion is granted, the case is reopened and a new hearing is scheduled (or the case is remanded). If the motion is denied, the respondent may appeal to the BIA (if the IJ denied) or file a petition for review with the federal court of appeals (if the BIA denied).

If a Loved One Was Just Detained on an Old Order

The first 24 to 72 hours after a detention are critical. If your relative was picked up on an old in absentia order, here is what to do immediately.

• Find out where your relative is being held. Use the ICE Online Detainee Locator at locator.ice.gov, which requires the person's A-number (alien registration number) or biographic information.
• Do not sign anything from ICE that asks the detainee to waive rights, stipulate to removal, or accept a "voluntary" deportation, without speaking to a lawyer first.
• Get the A-number. The A-number is the unique identifier ICE uses to track the case and is necessary for any motion, FOIA request, or court filing.
• Contact an immigration attorney immediately. Time is critical because ICE may attempt to remove the person within days. A motion to reopen with the proper legal basis, filed quickly, can trigger the automatic stay.
• Gather any old immigration documents, NTA, hearing notices, mail from the immigration court, and any prior attorney's contact information.

How a Motion Interacts With Other Forms of Relief

A successful motion to reopen does not, by itself, grant immigration status. It simply reopens the case so that the respondent can apply for whatever relief they are eligible for: asylum, withholding of removal, cancellation of removal, adjustment of status based on a family petition, a U-Visa or T-Visa, VAWA cancellation, and so on. The motion is a procedural vehicle. The substantive case follows. This is why an experienced attorney will often combine the motion to reopen with the underlying application for relief, so the judge sees from the first filing that the case is real and that reopening serves a purpose.

How to Pick the Right Lawyer for a Motion to Reopen

Not every immigration attorney handles removal defense. A good motion to reopen is a serious litigation document. The lawyer should be willing to do the following. Read the underlying record carefully, including the original NTA, hearing notices, and any prior orders. Order the Record of Proceedings (ROP) from EOIR using Form EOIR-59 if needed. Identify the specific legal exception or exceptions that apply. Draft a clear, evidence-based motion supported by documentary proof. Be willing to seek emergency stays in federal court if a removal is imminent. If a lawyer promises a quick result without reviewing the record or charges a flat fee in the first call without understanding the case, find someone else.

Frequently Asked Questions About Motions to Reopen

Final Thoughts From a Massachusetts Immigration Attorney

An old removal order is not always the end. The procedural tools in 8 CFR 1003.23, 8 CFR 1003.2, and INA section 240(c)(7) exist precisely for situations where notice failed, where counsel failed, where the country fell apart, or where the respondent has since become eligible for a real form of relief. The hard part is doing the work quickly and well, especially when a loved one is already in detention and a removal flight may be days away. Every motion I file is built on documentary evidence, a clear legal theory, and an honest assessment of what is possible.

If you or a family member has an old removal order and you are worried about what comes next, please reach out. The consultation is free and confidential. We will look at the record, talk about which exception might apply, and figure out the right path forward.