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Motions to Reopen: The Number and Time Bars, and the Changed-Country-Conditions Door

INA §240(c)(7) gives a respondent one motion to reopen, filed within 90 days. The statutory exception for changed country conditions is the door that asylum, withholding, and CAT motions continue to walk through.

By Fola Editorial · · 6 min read

What changed

INA § 240(c)(7), codified at 8 U.S.C. § 1229a(c)(7), governs motions to reopen filed with the immigration judge or the BIA. The default rules are restrictive: one motion to reopen per respondent, filed within 90 days of the final administrative order. The regulations implement the statute at 8 C.F.R. § 1003.2 (BIA motions) and 8 C.F.R. § 1003.23 (IJ motions). Procedural guidance is in the EOIR Policy Manual.

Three statutory exceptions to the number and time bars matter for daily practice.

First, the changed-country-conditions exception at INA § 240(c)(7)(C)(ii). A motion to reopen to apply for asylum, withholding of removal, or CAT protection may be filed at any time and is not subject to the number bar if the motion is based on changed country conditions in the country of nationality or removal, and the evidence is material and was not available and could not have been discovered or presented at the prior hearing. The BIA’s framework is set in Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007), and refined in Matter of J-G-, 26 I&N Dec. 161 (BIA 2013), and Matter of A-N-, 28 I&N Dec. 240 (BIA 2021).

Second, the in-absentia exception at INA § 240(b)(5)(C). A respondent ordered removed in absentia may file a motion to reopen at any time based on lack of notice under § 239(a), and within 180 days based on exceptional circumstances. The motion is not subject to the number bar.

Third, the joint motion exception at 8 C.F.R. § 1003.2(c)(3)(iii) and § 1003.23(b)(4)(iv). A motion filed jointly by the respondent and DHS is exempt from the number and time bars. Joint motions have become a meaningful settlement tool when DHS exercises prosecutorial discretion under successive policy memoranda.

The Supreme Court added a fourth doctrinal avenue in Mata v. Lynch, 576 U.S. 143 (2015), holding that the courts of appeals have jurisdiction to review the BIA’s denial of equitable tolling on a motion to reopen — a doctrine the Court had previewed in Holland v. Florida, 560 U.S. 631 (2010). Equitable tolling is now recognized in most circuits where ineffective assistance of counsel under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), prevented timely filing.

Sua sponte reopening under 8 C.F.R. §§ 1003.2(a) and 1003.23(b)(1) remains available but is reserved for “exceptional situations.” See Matter of J-J-, 21 I&N Dec. 976 (BIA 1997); Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999). The sua sponte denial is largely unreviewable in the circuits under Kucana v. Holder, 558 U.S. 233 (2010), and its progeny — though several circuits permit limited review where the BIA misapplied its own framework.

Why it matters

The changed-country-conditions exception is the most important door in removal-defense practice for clients whose claims have matured after a prior denial. Two recurring patterns dominate.

First, a respondent denied asylum years ago whose country of removal has since deteriorated — a coup, an outbreak of generalized violence, a targeted campaign against a religious or ethnic group, a regime change that exposes the respondent to retaliation — has a viable motion under § 240(c)(7)(C)(ii). The BIA’s threshold under S-Y-G- is whether the country conditions have materially changed between the time of the prior hearing and the motion, in a way that creates a new well-founded fear or new likelihood of harm.

Second, a respondent whose individual circumstances have changed in ways that intersect with country conditions — for example, conversion to a religion now persecuted in the country of removal, public political activity in the United States that has become known to the home government, or LGBTQ identity in a country whose enforcement environment has hardened — also has a viable claim. The motion must distinguish between changed personal circumstances (which alone do not satisfy the exception) and changed country conditions that interact with personal circumstances (which can).

Equitable tolling is the doctrine that quietly rescues many missed-deadline cases. The Lozada framework requires (1) an affidavit setting forth the agreement with prior counsel, (2) evidence that prior counsel was informed of the allegations and given an opportunity to respond, and (3) a complaint with the appropriate state bar disciplinary authority (or a reasoned explanation for not doing so). A clean Lozada package combined with diligence in pursuing the new motion is the typical equitable-tolling showing.

Sua sponte reopening is the long-shot doctrine for compelling humanitarian cases that do not fit any statutory or equitable framework. The threshold is high, the standard is opaque, and the denial is largely unreviewable. It is the last resort, not the first.

Way forward

A motion-to-reopen workup that survives both the BIA and likely circuit review:

  1. Confirm the procedural posture. Identify the final order, the date of the final order, the venue (IJ or BIA), and any prior motions. The motion is filed with the body that issued the last administrative decision (BIA if the BIA decided the appeal; IJ if the IJ’s order is the last administrative action).

  2. Identify the exception relied upon. For changed-country-conditions motions, document the prior country-conditions record from the original hearing and the current country-conditions record with specificity. State Department reports, expert declarations, NGO reports, and contemporaneous news coverage are the standard documentary package.

  3. For in-absentia motions, document the notice failure or the exceptional circumstance, and the date the respondent learned of the order.

  4. For joint motions, negotiate the PD posture with DHS counsel and confirm the joint-filing agreement in writing before filing.

  5. For equitable-tolling motions, build the Lozada package: client affidavit, notice to prior counsel, prior counsel’s response, and bar complaint (or reasoned explanation). Document diligence from the moment the client learned of the issue to the filing of the motion.

  6. Attach the proposed application for relief (Form I-589, I-485, EOIR-42A/42B, etc.) with all supporting evidence. The motion must establish prima facie eligibility for the underlying relief; conclusory motions get denied.

  7. Preserve every issue for circuit review. After Mata, the BIA’s denial of equitable tolling is reviewable; after Santos-Zacaria v. Garland, 598 U.S. 411 (2023), exhaustion is a claim-processing rule but still required in practice. Brief the motion as the petition for review will need it briefed.

Disclaimer

This article is general information about U.S. immigration law, not legal advice. Motions to reopen are technical and fact-specific. Anyone considering a motion to reopen should consult a licensed immigration attorney or a DOJ-recognized representative. Verify against the EOIR Policy Manual and the implementing regulations before relying on any specific procedural rule.

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