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Chapter 4. Motions to Reopen and Reconsider

4.1       Motions to Reopen and Reconsider Generally

If the Administrative Appeals Office (AAO) issues an unfavorable decision, the appellant[112] may file a motion to reopen the proceeding, a motion to reconsider the decision, or a combined motion to reopen and reconsider. The AAO may also reopen a proceeding or reconsider one of its prior decisions on its own motion.[113]

Unlike appeals, which ask a different authority to review and reverse a decision, motions request a review by the authority that issued the latest decision in the proceeding.[114]  Therefore, a U.S. Citizenship and Immigration Services (USCIS) field office has jurisdiction over motions relating to its decisions, and the AAO has jurisdiction over motions relating to its decisions.

A motion to reopen is based on documentary evidence of new facts.[115]  Alternatively, a motion to reconsider is based on a claim of incorrect application of law or policy to the prior decision.[116]

The regulations for motions to reopen and motions to reconsider are located at 8 C.F.R. § 103.5.

4.2      Motions to Reopen

A motion to reopen must state new facts and be supported by documentary evidence.[117]  Resubmitting previously provided evidence or reasserting previously stated facts will not meet the requirements of a motion to reopen. See Chapter 3.8(b) for more information about requirements for documentary evidence.

4.3      Motions to Reconsider

A motion to reconsider must establish that the AAO based its decision on an incorrect application of law or policy, and that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision.[118]  The AAO will not consider new facts or evidence in a motion to reconsider.

A motion to reconsider must be supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or statement of USCIS or Department of Homeland Security policy. Citing to an authority that is not relevant to the issues raised on motion will not meet the eligibility requirements of a motion to reconsider.

4.4      Combined Motions to Reopen and Reconsider

Appellants may file a combined motion to reopen and reconsider.  The AAO will consider each motion independently. The AAO may grant both motions, grant one motion but deny the other, or deny both motions.

4.5      Limitations on the Ability to File a Motion

(a)      Rejected Appeals

The AAO will deny a motion to reopen or reconsider its rejection of an appeal. When the AAO rejects an appeal, the appeal does not retain a filing date and there is no merits-based decision for the AAO to review. For more information about rejections of appeals, see Chapter 3.14(d).

(b)      Abandoned Appeals

A motion to reopen an appeal that the AAO dismissed due to abandonment must establish that the decision was in error because:[119]

  • The requested evidence was not material to the decision;
  • The appellant submitted the required initial evidence or additional information to the AAO before the deadline; or
  • The AAO incorrectly sent the request for additional information or appearance to the wrong address of record.

For more information on the dismissal of an appeal due to abandonment, see Chapter 3.14(b).

(c)      Legalization, Special Agricultural Workers, and the Legal Immigration Family Equity Act Legalization Provisions

USCIS decisions pertaining to benefit requests under section 245 of the Immigration and Nationality Act (the Act) (Legalization), section 210 of the Act (Special Agricultural Workers), and the Legal Immigration Family Equity Act legalization provisions are not subject to further review through the filing of a motion.[120]  However, USCIS may reopen or reconsider its prior decision on its own motion.[121]

4.6      Filing Requirements for Motions

(a)      Parties Eligible to File a Motion

Only persons or entities with legal standing in the proceeding (or their representative of record) may file a motion.[122]  In general, the beneficiary of a petition is not a party to the proceeding and does not have standing to file a motion.[123]  See Chapter 3.7(a) for more information about persons or entities with standing in a proceeding.

(b)      Form I-290B, Notice of Appeal or Motion

Appellants must file a motion on Form I-290B, Notice of Appeal or Motion.  Form I-290B and the instructions for completing the form are available at www.uscis.gov/i-290b.

On Form I-290B, appellants must select whether they are submitting a motion to reopen, a motion to reconsider, or a combined motion to reopen and motion to reconsider.

(c)      Timing

Appellants must file a motion within 30 days of the unfavorable decision (or 33 days if the decision is mailed).[124]  See Chapter 3.7(c) for more information about calculating time periods.

The AAO may excuse the failure to timely file a motion to reopen if the appellant demonstrates that the delay was reasonable and was beyond his or her control.[125]  The regulations provide no corresponding discretion to excuse an untimely motion to reconsider.

(d)      Where to File

Do not mail motions directly to the AAO.  The correct filing address for a motion is listed at www.uscis.gov/i-290b-addresses.  Any motions mailed to the AAO will be returned, will not be considered filed, and will not retain a filing date.

(e)      Filing Fee and Fee Waiver Requests

Motions must contain the required filing fee or a fee waiver request.  Filing fees are listed at the USCIS Forms webpage and at the What is the Filing Fee? section of the Form I-290B instructions (PDF, 254.78 KB).  There is no additional fee for a combined motion to reopen and motion to reconsider.

In certain categories of cases, USCIS may waive the fee for Form I-290B if the appellant can show an inability to pay.  For information about which fees may be waived and how to request a fee waiver, see Form I-912, Request for Fee Waiver (PDF, 486.04 KB) and Form I-912 instructions (PDF, 255.77 KB), 8 C.F.R. § 103.7(c), and www.uscis.gov/fees.

(f)      Required Statement Regarding Judicial Proceedings

All motions must be accompanied by a statement about whether or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding.[126]

4.7      Briefs and Additional Evidence

(a)      Motion Filed by Appellant

Appellants are not required to submit a brief with their motions; however, if they choose to submit a brief or additional evidence, they must do so concurrently with their motions.[127]

(b)      Service or Sua Sponte Motion

The AAO may reopen a proceeding or reconsider a decision on its own motion (sometimes called a Service motion or a sua sponte motion).  If the AAO reopens on its own motion and the new decision may be unfavorable to the appellant, the AAO will notify the appellant and provide 30 days to submit a brief.[128]  The AAO may extend the deadline for submitting a brief upon request if the appellant shows good cause.[129]  See Chapter 3.8(c) for more information on requests to extend the deadline for submitting briefs and additional evidence.

4.8      Effect of Filing a Motion or Subsequent Application or Petition

Unless USCIS directs otherwise, the filing of a motion to reopen or reconsider (or the filing of a subsequent application or petition) does not delay the execution of any decision in a case or extend a previously set departure date.[130]

4.9      Expedite Requests

An appellant may request expedited processing for a motion.  For more information on expedite requests, see Chapter 6.3.

4.10    Requests for Oral Argument

The AAO generally adjudicates decisions based on the record of proceedings without oral argument.  However, the AAO may grant a written request for oral argument where a case involves an issue of particular significance and the AAO determines that it would benefit from supplemental argument.  For more information on oral argument requests, see Chapter 6.5.[131]

4.11    Requests for Evidence and Notices of Intent to Deny

Prior to issuing a new decision, the AAO may issue a request for evidence (RFE) or notice of intent to deny (NOID).  For more information about RFEs and NOIDs, see Chapter 3.13.

4.12    Withdrawing a Motion

Appellants may withdraw a motion by submitting a written request via mail or fax before the AAO issues a decision.  The procedure for withdrawing a motion is the same as the procedure for withdrawing an appeal. See Chapter 3.12 for more information about withdrawals.

Footnotes


[112] [^] For simplicity, this Practice Manual refers to all persons or entities with legal standing in a proceeding as “appellants,” including those who file a motion to reopen or reconsider an AAO decision.

[113] [^] 8 C.F.R. § 103.5(a)(5).

[114] [^] 8 C.F.R. § 103.5(a)(1)(ii).

[115] [^] 8 C.F.R. § 103.5(a)(2).

[116] [^] 8 C.F.R. § 103.5(a)(3).

[117] [^] 8 C.F.R. § 103.5(a)(2).

[118] [^] 8 C.F.R. § 103.5(a)(3).

[119] [^] 8 C.F.R. § 103.5(a)(2).

[120] [^] 8 C.F.R. § 103.5(b).

[121] [^] Id.

[122] [^] 8 C.F.R. § 103.5(a)(1)(iii)(A).

[123] [^] 8 C.F.R. § 103.3(a)(1)(iii)(B).

[124] [^] If a notice is served by mail, three days are automatically added to the stated period to perform the specified act.  8 C.F.R. § 103.8(b).

[125] [^] 8 C.F.R. § 103.5(a)(1)(i).

[126] [^] 8 C.F.R. § 103.5(a)(1)(iii)(C).

[127] [^] The requirement that a motion be complete upon filing is different from appeals, where the appellant may choose to have a 30-day period following the filing of the appeal to submit a brief and supporting evidence.

[128] [^] 8 C.F.R. § 103.5(a)(5)(ii).  The regulations provide three additional days for an appellant to respond when a notice is served by mail.  8 C.F.R. § 103.8(b).

[129] [^] 8 C.F.R. § 103.5(a)(5)(ii).

[130] [^] 8 C.F.R. § 103.5(a)(1)(iv).

[131] [^] 8 C.F.R. § 103.5(a)(7) states that the oral argument provisions for appeals at 8 C.F.R. § 103.3(b) also apply to motions.