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Chapter 5 - Motions Before the Immigration Court

5.8 - Motions to Reconsider

(a) Purpose — A motion to reconsider either identifies an error in law or fact in the immigration judge’s prior decision or identifies a change in law that affects an immigration judge’s prior decision and asks the immigration judge to reexamine their ruling.  A motion to reconsider is based on the existing record and does not seek to introduce new facts or evidence.

(b) Requirements — The motion should be filed with a cover page labeled “MOTION TO RECONSIDER” and comply with the deadlines and requirements for filing.  See subsection (c), below, Chapter 5.2 (Filing a Motion), Appendix E (Cover Pages).  If the respondent is represented by a practitioner of record or has received document assistance from a practitioner, the motion must be accompanied by a Form EOIR-28 or Form EOIR-61.  See Chapter 2.1 (Representation and Appearances Generally).  To ensure that the immigration court has the respondent’s current address, a change of address form (EOIR-33/IC) should be filed with the motion.  A filing fee 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 immigration judge’s final administrative order.  8 C.F.R. § 1003.23(b)(1).  (For cases decided by the immigration court before July 1, 1996, the motion to reconsider was due on or before July 31, 1996.  8 C.F.R. § 1003.23(b)(1).

         Responses to motions to reconsider are due within ten (10) days after the motion was received by the immigration court, unless otherwise specified by the immigration judge.

(d) Number Limits — As a general rule, a party may file only one motion to reconsider.  See 8 C.F.R. § 1003.23(b)(1).  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. § 1003.23(b)(1).

(e) 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.

          (2) DHS motions — For cases in removal proceedings, the Department of Homeland Security (DHS) is not subject to time and number limits on motions to reconsider.  See 8 C.F.R. § 1003.23(b)(1).  For cases brought in deportation or exclusion proceedings, DHS is subject to the time and number limits on motions to reconsider, unless the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum.  See 8 C.F.R. § 1003.23(b)(1).

          (3) Other — In addition to the regulatory exceptions for motions to reconsider, exceptions may be created in accordance with special statutes, case law, directives, or other special legal circumstances.  The immigration judge may also reconsider proceedings at any time on its own motion.  8 C.F.R. § 1003.23(b)(1).

(f) Identification of Error — A motion to reconsider must state with particularity the errors of fact or law in the immigration judge’s prior 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.  For citation guidelines, see Chapter 4.19(f) (Citation), Appendix I (Citations).

(g) Motions Filed Prior to Deadline for Appeal — A motion to reconsider filed prior to the deadline for filing an appeal does not stay or extend the deadline for filing the appeal.

(h) Motions Filed while an Appeal is Pending — Once an appeal is filed with the Board of Immigration Appeals, the immigration judge no longer has jurisdiction over the case.  See Chapter 5.2(a) (Where to File).  Thus, motions to reconsider should not be filed with an immigration judge after an appeal is taken to the Board.

(i) Automatic Stays — A motion to reconsider does not automatically stay an order of removal or deportation.  See Chapter 8 (Stays).

(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 5.7(k) (Criminal Convictions).