5.7 - Motions to Reconsider

(a) Purpose

A motion to reconsider either identifies an error in law or fact in a prior Board decision or identifies a change in law that affects a prior Board decision and asks the Board to re-examine its ruling.  A motion to reconsider is based on the existing record and does not seek to introduce new facts or evidence.

(b) Requirements

Motions to reconsider must comply with the general requirements for filing a motion.  See Chapter 5.2 (Filing a Motion).  A filing fee, fee receipt, or a fee waiver request may be required.  See Chapter 3.4 (Filing Fees).

(c) Time Limits

A motion to reconsider must be filed within 30 days of the Board’s decision.  8 C.F.R. § 1003.2(b)(2).  (For cases decided by the Board before July 1, 1996, the motion to reconsider was due on or before July 31, 1996.)  8 C.F.R. § 1003.2(b)(2).

(d) Number Limits

As a general rule, a party may file only one motion to reconsider.  See 8 C.F.R. § 1003.2(b)(2).  Motions filed prior to July 31, 1996, do not count toward the one-motion limit.  Although a party may file a motion to reconsider the denial of a motion to reopen, a party may not file a motion to reconsider the denial of a motion to reconsider.  8 C.F.R. § 1003.2(b)(2).

(e) Summary Affirmance Orders

A motion to reconsider may not be based solely on an argument that an immigration judge’s decision should not have been affirmed without opinion.  See 8 C.F.R. § 1003.2(b)(3).

(f) Exceptions to the Limits on Motions to Reconsider — 

          (1) Respondent motions — There are no exceptions to the time and number limitations on motions to reconsider when filed by a respondent.  However, if a fee waiver request does not establish the inability to pay the required fee, the Board will grant 15 days to re-file the rejected motion with the filing fee or new fee waiver request, and any applicable filing deadline is tolled during the 15-day cure period.  See Chapter 3.4 (Filing fees), Chapter 5.6(e)(7) (Fee waiver denied).

          (2) DHS motions — DHS motions to reconsider are subject to certain limitations.  See 8 C.F.R. § 1003.2(b)(2).

          (3) ECAS system outage (electronic filing) — System outages may occur that make electronic filing through ECAS unavailable and may impact filing deadlines for a case where electronic filing is mandatory.  If EOIR determines that an unplanned outage has occurred, filing deadlines that occur on the last day for filing in a specific case will be extended until the first day of system availability that is not a Saturday, Sunday, or legal holiday.  See 8 C.F.R. § 1003.2(g)(5).  Note that planned system outages will not impact filing deadlines since these can be proactively addressed by the parties.  EOIR will maintain an ECAS Outage Log that will note planned and unplanned ECAS system outages.

          (4) Other — Exceptions to the time and number limits on motions to reconsider may be created by statute, published case law, or regulations.  The Board may also reconsider proceedings at any time on its own initiative.  8 C.F.R. § 1003.2(a).

(g) Identification of Error

A motion to reconsider must state with particularity the errors of fact or law in the prior Board decision, with appropriate citation to authority and the record.  If a motion to reconsider is premised upon changes in the law, the motion should identify the changes and, where appropriate, provide copies of that law.  See Chapter 4.6(d)(6) (Statutes, rules, regulations, and other legal authorities and sources).

(h) Motions Filed While an Appeal is Pending

Once an appeal is filed with the Board, the immigration judge no longer has jurisdiction over the case.  See Chapter 4.2(a)(2) (Appeal to the Board vs. motion before the immigration judge).  Thus, motions to reconsider should not be filed with an immigration judge after an appeal is taken to the Board.  A motion to reconsider that is filed with the Board during the pendency of an appeal is generally treated as a motion to remand for further proceedings before an immigration judge.  8 C.F.R. § 1003.2(b)(1).  See Chapter 5.8 (Motions to Remand).

(i) Automatic Stays

A motion to reconsider does not automatically stay an order or removal or deportation.  See Chapter 6 (Stays and Expedite Requests).

(j) Criminal Convictions

When a criminal conviction has been overturned, vacated, modified, or disturbed in some way, the proper motion is a motion to reopen, not a motion to reconsider.  See Chapter 5.6(j) (Criminal Convictions).