[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.23]

[Page 30-32]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
            Subpart C--Immigration Court--Rules of Procedure
 
Sec. 3.23  Reopening or reconsideration before the Immigration Court.

    (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 therefore, the relief sought, and the 
jurisdiction. The Immigration Judge may set and extend time limits for 
the making 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 his or her own motion at any time, or upon motion of the 
Service or the alien, reopen or reconsider any case in which he or she 
has made a decision, unless jurisdiction is vested with the Board of 
Immigration Appeals. Subject to the exceptions in this paragraph 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 do not apply 
to motions by the Service in removal proceedings pursuant to section 240 
of the Act. Nor shall such limitations apply to motions by the Service 
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 Sec. 208.22(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

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Judge must be filed with the Immigration Court having administrative 
control over the Record of Proceeding. 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 the 
Service, service of the motion shall be made upon the Office of the 
District Counsel for the district in which the case was completed. If 
the moving party, other than the Service, is represented, a Form EOIR-
28, Notice of Appearance as Attorney or Representative Before an 
Immigration Judge must be filed with the motion. The motion must be 
filed in duplicate with the Immigration Court, accompanied by a fee 
receipt.
    (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 his or her delegate 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 officer of the Service.
    (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 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 him or her by the Immigration Judge and an opportunity to 
apply therefore 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) (cancellation of removal for certain 
permanent residents) or 240A(b) (cancellation of removal and adjustment 
of status for certain nonpermanent residents) may be granted only if the 
alien demonstrates that he or she 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) of the Act or (a)(4), 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

[[Page 32]]

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 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 if the alien demonstrates that 
he or she did not receive notice in accordance with sections 239(a)(1) 
or (2) of the Act, or 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. 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 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.
    (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]