C.F.R. » Title 8 » CHAPTER V—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, DEPARTMENT OF JUSTICE › SUBCHAPTER A—GENERAL PROVISIONS › PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW › Subpart C—Immigration Court—Rules of Procedure

8 C.F.R. § 1003.23

Reopening or reconsideration before the immigration court

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(a) Pre-decision motions. Unless otherwise permitted by the immigration judge, motions submitted prior to the final order of an immigration judge shall be in writing and shall state, with particularity the grounds therefor, the relief sought, and the jurisdiction. The immigration judge may set and extend time limits for the making and replying to of motions and replies thereto. A motion shall be deemed unopposed unless timely response is made.

(b) Before the Immigration Court—(1) In general. An immigration judge may upon the immigration judge's own motion at any time, or upon motion of DHS or the alien, reopen or reconsider any case in which the judge has rendered a decision, unless jurisdiction is vested with the Board of Immigration Appeals. Subject to the exceptions in this paragraph (b)(1) and paragraph (b)(4), a party may file only one motion to reconsider and one motion to reopen proceedings. A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before July 31, 1996, whichever is later. A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later. A motion to reopen or to reconsider shall not be made by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. The time and numerical limitations set forth in this paragraph (b)(1) do not apply to motions by DHS in removal proceedings pursuant to section 240 of the Act. Nor shall such limitations apply to motions by DHS in exclusion or deportation proceedings, when the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum in accordance with § 1208.22(e) of this chapter.

(i) Form and contents of the motion. The motion shall be in writing and signed by the affected party or the attorney or representative of record, if any. The motion and any submission made in conjunction with it must be in English or accompanied by a certified English translation. Motions to reopen or reconsider shall state whether the validity of the exclusion, deportation, or removal order has been or is the subject of any judicial proceeding and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. In any case in which an exclusion, deportation, or removal order is in effect, any motion to reopen or reconsider such order shall include a statement by or on behalf of the moving party declaring whether the subject of the order is also the subject of any pending criminal proceeding under the Act, and, if so, the current status of that proceeding.

(ii) Filing. Motions to reopen or reconsider a decision of an immigration judge must be filed with the immigration court having administrative control over the Record of Proceeding. If necessary under § 1003.32, a motion to reopen or a motion to reconsider shall include a certificate showing service on the opposing party of the motion and all attachments. If the moving party is not DHS, service of the motion shall be made upon the ICE Office of the Principal Legal Advisor for the field location in which the case was completed. If the moving party, other than DHS, is represented, a Form EOIR-28, Notice of Appearance as Attorney or Representative Before an Immigration Judge must be filed with the motion. For any motion requiring a fee, that motion must be accompanied by proof of payment of the required filing fee in a manner and form authorized by EOIR or a fee waiver request pursuant to 8 CFR 1103.7(c). If filed in paper, the motion must be filed in duplicate with the immigration court.

(iii) Assignment to an immigration judge. If the immigration judge is unavailable or unable to adjudicate the motion to reopen or reconsider, the Chief Immigration Judge or a delegate of the Chief Immigration Judge shall reassign such motion to another immigration judge.

(iv) Replies to motions; decision. The immigration judge may set and extend time limits for replies to motions to reopen or reconsider. A motion shall be deemed unopposed unless timely response is made. The decision to grant or deny a motion to reopen or a motion to reconsider is within the discretion of the immigration judge.

(v) Stays. Except in cases involving in absentia orders, the filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case. Execution of such decision shall proceed unless a stay of execution is specifically granted by the immigration judge, the Board, or an authorized DHS officer.

(2) Motion to reconsider. A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the immigration judge's prior decision and shall be supported by pertinent authority. Such motion may not seek reconsideration of a decision denying a previous motion to reconsider.

(3) Motion to reopen. A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits and other evidentiary material. Any motion to reopen for the purpose of acting on an application for relief must be accompanied by the appropriate application for relief and all supporting documents. A motion to reopen will not be granted unless the immigration judge is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. A motion to reopen for the purpose of providing the alien an opportunity to apply for any form of discretionary relief will not be granted if it appears that the alien's right to apply for such relief was fully explained to them by the immigration judge and an opportunity to apply therefor was afforded at the hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. Pursuant to section 240A(d)(1) of the Act, a motion to reopen proceedings for consideration or further consideration of an application for relief under section 240A(a) of the Act (cancellation of removal for certain permanent residents) or 240A(b) of the Act (cancellation of removal and adjustment of status for certain nonpermanent residents) may be granted only upon demonstration that the alien was statutorily eligible for such relief prior to the service of a Notice to Appear, or prior to the commission of an offense referred to in section 212(a)(2) of the Act that renders the alien inadmissible or removable under sections 237(a)(2) or (a)(4) of the Act, whichever is earliest. The immigration judge has discretion to deny a motion to reopen even if the moving party has established a prima facie case for relief.

(4) Exceptions to filing deadlines—(i) Asylum and withholding of removal. The time and numerical limitations set forth in paragraph (b)(1) of this section shall not apply if the basis of the motion is to apply for asylum under section 208 of the Act or withholding of removal under section 241(b)(3) of the Act or withholding of removal under the Convention Against Torture, and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding. The filing of a motion to reopen under this section shall not automatically stay the removal of the alien. However, the alien may request a stay and, if granted by the immigration judge, the alien shall not be removed pending disposition of the motion by the immigration judge. If the original asylum application was denied based upon a finding that it was frivolous, then the alien is ineligible to file either a motion to reopen or reconsider, or for a stay of removal.

(ii) Order entered in absentia or in removal proceedings. An order of removal entered in absentia or in removal proceedings pursuant to section 240(b)(5) of the Act may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal, if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act. An order entered in absentia pursuant to section 240(b)(5) may be rescinded upon a motion to reopen filed at any time upon the alien's demonstration of lack of notice in accordance with section 239(a)(1) or (2) of the Act, or upon the alien's demonstration of the alien's Federal or State custody and the failure to appear was through no fault of the alien. However, in accordance with section 240(b)(5)(B) of the Act, no written notice of a change in time or place of proceeding shall be required if the alien has failed to provide the address required under section 239(a)(1)(F) of the Act. The filing of a motion under this paragraph (b)(4)(ii) shall stay the removal of the alien pending disposition of the motion by the immigration judge. An alien may file only one motion pursuant to this paragraph (b)(4)(ii).

(iii) Order entered in absentia in deportation or exclusion proceedings. (A) An order entered in absentia in deportation proceedings may be rescinded only upon a motion to reopen filed:

(1) Within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances beyond the control of the alien (e.g., serious illness of the alien or serious illness or death of an immediate relative of the alien, but not including less compelling circumstances); or

(2) At any time if the alien demonstrates that he or she did not receive notice or if the alien demonstrates that he or she was in federal or state custody and the failure to appear was through no fault of the alien.

(B) A motion to reopen exclusion hearings on the basis that the immigration judge improperly entered an order of exclusion in absentia must be supported by evidence that the alien had reasonable cause for his failure to appear.

(C) The filing of a motion to reopen under paragraph (b)(4)(iii)(A) of this section shall stay the deportation of the alien pending decision on the motion and the adjudication of any properly filed administrative appeal.

(D) The time and numerical limitations set forth in paragraph (b)(1) of this section shall not apply to a motion to reopen filed pursuant to the provisions of paragraph (b)(4)(iii)(A) of this section.

(iv) Jointly filed motions. The time and numerical limitations set forth in paragraph (b)(1) of this section shall not apply to a motion to reopen agreed upon by all parties and jointly filed.

[52 FR 2936, Jan. 29, 1987, as amended at 55 FR 30680, July 27, 1990. Redesignated at 57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 61 FR 18908, Apr. 29, 1996; 61 FR 19976, May 3, 1996; 61 FR 21228, May 9, 1996; 62 FR 10332, Mar. 6, 1997; 62 FR 15362, Apr. 1, 1997; 62 FR 17048, Apr. 9, 1997; 64 FR 8487, Feb. 19, 1999; 85 FR 81655, Dec. 16, 2020; 86 FR 70722, Dec. 13, 2021; 89 FR 46793, May 29, 2024; 90 FR 41888, Aug. 28, 2025; 91 FR 35374, June 11, 2026]
Notes of Decisions
Cited in 1,480 cases (162 in the last 5 years), 2003–2026 · leading case: Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009).
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Rosillo-Puga v. Holder, 580 F.3d 1147 (10th Cir. 2009). · cites it 59× “In his motion, Rosillo-Puga argued that, pursuant to 8 C.F.R. § 1003.23 (b)(1), the immigration court could reconsider or reopen his case "at any time" and that the IJ had discretion to do so sua sponte.”
Jaime Balerio Rubalcaba v. Merrick Garland, 998 F.3d 1031 (9th Cir. 2021). · cites it 26× “GARLAND SUMMARY ** Immigration The panel granted Jaime Balerio Rubalcaba’s petition for review of a decision of the Board of Immigration Appeals, vacated the BIA’s decision, and remanded, holding that the “departure bar” provision in 8 C.F.R. § 1003.23 (b)(1) does not apply in…”
Gonzalez-Alarcon v. Macias, 884 F.3d 1266 (10th Cir. 2018). · cites it 12× “See 8 C.F.R. § 1003.23 (b)(1) (setting a ninety-day deadline for motions to reopen and prohibiting such motions from individuals who previously departed the United States).”
William v. Gonzales, 499 F.3d 329 (4th Cir. 2007). · cites it 10× “[2] The First Circuit recently reached this same conclusion, moving past Chevron 's first step in upholding the validity of 8 C.F.R. § 1003.23 (b)(1) (2007), which bars immigration judges from considering motions to reopen and reconsider made after an alien's departure.”
Wilmer Garcia Carias v. Eric Holder, Jr., 697 F.3d 257 (5th Cir. 2012). · cites it 12× “” The Immigration Judge relied on the Attorney General’s departure regulation, 8 C.F.R. § 1003.23 (b)(1), in arriving at his conclusion.”
Singh v. Gonzales, 436 F.3d 484 (5th Cir. 2006). · cites it 7× “Rather, according to Singh, 8 C.F.R. § 1003.23 (b)(4)(ii) and 8 U.S.C.”
Xue Xian Jiang v. U.S. Attorney Gen., 568 F.3d 1252 (11th Cir. 2009). · cites it 6× “*1254 MARCUS, Circuit Judge: Xue Xian Jiang (“Jiang”), a native and citizen of China and mother of two children, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying her motion to reopen removal proceedings to file an asylum application based on…”
Bing Quan Lin v. U.S. Attorney Gen., 881 F.3d 860 (11th Cir. 2018). · cites it 4× “§ 1229a(b)(5)(C), (c)(7)(C)(i); 8 C.F.R. § 1003.23 (b)(1), (b)(4)(h). We have held that the 90-day deadline for a motion to reopen is a non-jurisdictional claim-processing rule and is, therefore, subject to equitable tolling.”
Zi-Xing Lin v. Alberto R. Gonzales, Attorney Gen., 473 F.3d 979 (9th Cir. 2007). · cites it 9× “We reverse and remand because (a) 8 C.F.R. § 1003.23 (b)(1) cannot be applied to the facts of this case, (b) no steps were taken by the Department of Homeland Security (“DHS”) to reinstate petitioner’s prior removal order under 8 C.”
Sergio Lugo-Resendez v. Loretta Lynch, 831 F.3d 337 (5th Cir. 2016). · cites it 3× “Under 8 C.F.R. § 1003.23 (b)(1), “[a] motion to reopen or to reconsider shall not be made [in the Immigration Court] by or on behalf of a person who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her departure from the United States.”
Reyes-Vargas v. Barr, 958 F.3d 1295 (10th Cir. 2020). · cites it 7× “_________________________________ In this appeal, we review a Board of Immigration Appeals (the “Board” or “BIA”) ruling that an Immigration Judge (IJ) had no jurisdiction under 8 C.F.R. § 1003.23 (b)(1) to move sua sponte to reopen Juvenal Reyes-Vargas’s removal proceedings.”
United States v. Richard Copeland, Also Known as Jamal Owen, 376 F.3d 61 (2d Cir. 2004). · cites it 4× “” 8 C.F.R. § 1003.23 (b)(1). Moreover as noted, the IJ did in fact address Copeland's claim on the merits, ruling that he was ineligible for Section 212(c) relief because his deportation proceeding began after the passage of AEDPA.”
Show all 1,480 citing cases →
— 8 C.F.R. § 1003.23(b) — 3 cases
Admilson Silverio-Da Silva v. Loretta Lynch, 675 F. App'x 487 (5th Cir. 2017).
Admilson Silverio-Da Silva v. Loretta Lynch (5th Cir. 2017).
Arrobo v. Attorney Gen. of the United States, 459 F. App'x 144 (3rd Cir. 2012).
— 8 C.F.R. § 1003.23(b)(1) — 12 cases
Bing Quan Lin v. U.S. Attorney Gen., 881 F.3d 860 (11th Cir. 2018). “§ 1229a(b)(5)(C), (c)(7)(C)(i); 8 C.F.R. § 1003.23 (b)(1), (b)(4)(h). We have held that the 90-day deadline for a motion to reopen is a non-jurisdictional claim-processing rule and is, therefore, subject to equitable tolling.”
Gonzalez-Alarcon v. Macias, 884 F.3d 1266 (10th Cir. 2018). “See 8 C.F.R. § 1003.23 (b)(1) (setting a ninety-day deadline for motions to reopen and prohibiting such motions from individuals who previously departed the United States).”
Fernando Menendez-Gonzalez v. William Barr, 929 F.3d 1113 (9th Cir. 2019).
Mendiola v. Holder, 585 F.3d 1303 (10th Cir. 2009).
Cincinnati Bar Assn. v. Sigalov, 2012 Ohio 3868 (Ohio 2012).
— 8 C.F.R. § 1003.23(b)(1)(2004) — 1 case
Ghanem v. Gonzales, 170 F. App'x 882 (5th Cir. 2006).
— 8 C.F.R. § 1003.23(b)(3) — 8 cases
Dolores Tapia-Martinez v. Alberto R. Gonzales, Attorney Gen. of United States, 482 F.3d 417 (6th Cir. 2007).
Nikolay Vladimir Ivanov Nora Mkrtychevna Ivanova v. Alberto Gonzales, Attorney Gen. of the United States of Am., 487 F.3d 635 (8th Cir. 2007).
Nikolay Vladimir Ivanov Nora Mkrtychevna Ivanova v. Alberto Gonzales, Attorney Gen. of the United States of Am., 476 F.3d 607 (8th Cir. 2007).
Ramiro Aguilar-Rivera v. Attorney Gen. United States (3rd Cir. 2021).
Mandeep Kaur v. Eric Holder, Jr., 500 F. App'x 622 (9th Cir. 2012).
— 8 C.F.R. § 1003.23(b)(4) — 2 cases
Saul Contreras-Rodriguez v. U.S. Attorney Gen., 462 F.3d 1314 (11th Cir. 2006).
Saleem Panjwani v. U.S. Attorney Gen., 300 F. App'x 681 (11th Cir. 2008).
— 8 C.F.R. § 1003.23(b)(4)(h) — 1 case
Maria Moreno De Rios v. Loretta E. Lynch, 674 F. App'x 768 (9th Cir. 2017).
— 8 C.F.R. § 1003.23(b)(4)(i) — 1 case
Singh v. Mukasey, 282 F. App'x 78 (2d Cir. 2008).
— 8 C.F.R. § 1003.23(b)(4)(ii) — 5 cases
Akwada v. Ashcroft, 113 F. App'x 532 (4th Cir. 2004).
Patel v. Gonzales, 496 F.3d 829 (7th Cir. 2007).
Sarker v. Attorney Gen., 228 F. App'x 175 (3rd Cir. 2007).
Martinez-Galeas v. Garland (5th Cir. 2022).
Patel, Shehzad Q. v. Kiesler, Peter D. (7th Cir. 2007).
— 8 C.F.R. § 1003.23(b)(4)(iii)(1) — 1 case
Yong Zhong Liu v. Bd. of Immigr. Reviews, 179 F. App'x 97 (2d Cir. 2006).
— 8 C.F.R. § 1003.23(b)(4)(iii)(A) — 1 case
Jose Cartajena-Hernandez v. Loretta E. Lynch, 649 F. App'x 497 (9th Cir. 2016).
— 8 C.F.R. § 1003.23(b)(4)(iii)(D) — 1 case
Bi Xiang Ye v. Gonzales, 174 F. App'x 626 (2d Cir. 2006).
— 8 C.F.R. § 1003.23(b)(8) — 1 case
Tamay-Ludizaca v. Attorney Gen. of the United States of Am., 553 F. App'x 148 (3rd Cir. 2014).
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