B-S-H-: The VAWA Waiver Buys Time, Not a Second Motion

You have a final order of removal. Your U.S. citizen spouse has abused you. You file the special motion to reopen that Congress wrote for people in your position, and the Board of Immigration Appeals says your evidence falls short. So you gather more and file again.

That second motion can be over before anyone weighs the new evidence. A survivor gets one motion to reopen under the Violence Against Women Act. It is due within a year of the final order, and the law lets the agency forgive a late filing for extraordinary circumstances or extreme hardship to the person’s child. The Board has now held that this forgiveness reaches only the deadline. It does nothing about the limit of one.

The case is Matter of B-S-H-, 29 I&N Dec. 313, Interim Decision 4140 (BIA Nov. 19, 2025). Its practical lesson is about timing and proof: The first motion has to be the one that is ready.

A marriage during the appeal, then a final order

The man is from India. The Department of Homeland Security began removal proceedings against him in 2016. An immigration judge denied his applications for relief, and on November 22, 2022, the Board affirmed. That date started the clocks that decide this case. The Second Circuit later denied his petition for review.

He alleged that he married a U.S. citizen while that appeal was still before the Board, and that sometime after the wedding she began abusing him and exploiting his immigration status. He filed a self-petition with U.S. Citizenship and Immigration Services under the Violence Against Women Act, or VAWA, which lets a person abused by a citizen spouse seek status without the spouse’s help.

In November 2023, about a year after the final order, he moved to reopen. He wanted a chance to adjust status based on the self-petition, and he claimed eligibility for special rule cancellation of removal, a separate form of relief for battered spouses. He later supplemented the motion with evidence that USCIS had issued a prima facie determination on his self-petition.

A USCIS letter did not carry the first motion

The Board denied that motion on October 10, 2024. It found that he had not made a prima facie showing, meaning enough evidence to suggest he could qualify if the case were reopened. The self-petition was still pending. A prima facie determination from USCIS, the Board said, is preliminary and does not indicate that USCIS will approve the petition. And on cancellation, he had not shown the required hardship or the required battery or extreme cruelty.

The Board later stood by its view of the USCIS letter, reading the VAWA regulation, 8 C.F.R. § 204.2(c)(6), to say that a prima facie determination does not establish eligibility, is not evidence in support of the petition, and does not relieve the self-petitioner of proving the case.

That matters for anyone holding such a letter, because the same letter can do real work elsewhere. The VAWA reopening statute says the filing of a motion under this provision stays removal for a “qualified alien,” and the definition it points to, 8 U.S.C. § 1641(c)(1)(B), covers a person whose petition has been approved or is pending and “sets forth a prima facie case.” The motion itself has to establish that status. So, as we read the two provisions together, a prima facie finding may help on the question of a stay while doing little to prove the motion itself. The evidence of abuse, of the marriage and of everything else the relief requires has to be in the motion.

The label on the second filing did not control

In November 2024 he filed again and called it a motion to reconsider. The Board looked past the title: “Although labeled a motion to reconsider, the respondent’s motion is both a motion to reconsider and a motion to reopen.”

The difference is what the filing asks for. A motion to reconsider says the earlier decision was wrong on the record that already existed. A motion to reopen asks for a new hearing based on new or previously unavailable evidence. This man did both. He attacked the October 2024 decision, and he also sought to submit more evidence for his still-pending self-petition and cancellation claim. The new evidence is what made it a motion to reopen as well, whatever the caption said.

The reconsideration half failed on the merits. He argued the Board had wrongly found that jurisdiction over his adjustment application lies only with USCIS. The Board answered that it had never said so. It also stood by its treatment of the USCIS letter and the rest of the evidence. “Disagreement with the result,” the Board wrote, “is not sufficient to establish error in our prior decision.”

Two limits, one waiver

The reopening half is the reason to read this case. The immigration statute limits these motions in two separate ways, and the opinion turns on keeping them apart.

The first limit is time. An ordinary motion to reopen is due within 90 days of the final order. A VAWA motion gets a year. And under 8 U.S.C. § 1229a(c)(7)(C)(iv)(III), the agency “may, in the Attorney General’s discretion, waive this time limitation in the case of an alien who demonstrates extraordinary circumstances or extreme hardship to the alien’s child.”

The second limit is number. Under § 1229a(c)(7)(A), a person may file “one motion to reopen,” except that this limit “shall not apply so as to prevent the filing of one motion to reopen described in subparagraph (C)(iv),” the VAWA provision. An earlier ordinary motion therefore does not use up the VAWA motion. But the VAWA motion is itself one.

The November 2024 filing ran into both limits. It came about two years after the November 2022 final order, so it was late. And it was his second VAWA motion, so it was over the number. The waiver might have answered the first problem. The Board held that it could not answer the second.

Why the waiver stops at the deadline

The Board gave three reasons, all from the words of the statute.

First, the VAWA provision opens by lifting “[a]ny limitation under this section on the deadlines for filing such motions.” Deadlines are the time rules in subparagraph (C). The limit of one sits somewhere else, in subparagraph (A).

Second, the waiver clause says the agency may waive “this time limitation.” It says nothing about how many motions a person may file.

Third, subparagraph (A) itself grants “one motion to reopen described in subparagraph (C)(iv).” A second VAWA motion is outside that grant.

So the Board held that “the extraordinary circumstances or extreme hardship waiver for motions to reopen only applies to temporal limitations for filing a motion to reopen to apply for relief under VAWA and not to the numerical limitation on such motions.” His motion was barred by the limit of one, and no showing of hardship could change that.

The best word for the other side is “any,” and in our view the Board’s answer to it is hard to beat: “Any limitation” is followed by “on the deadlines.” The Board reported that only one federal appeals court had addressed the question, and it had come out the same way in an unpublished decision, Wane v. Attorney General, No. 23-3229, 2024 WL 4200583 (3d Cir. Sept. 16, 2024).

What counts as a second motion

A person can trip the limit without meaning to, and the mechanism is a word like “supplement.” Nine months before B-S-H-, the Board decided Matter of D-E-B-, 29 I&N Dec. 83 (BIA 2025). A man there had filed an ordinary, timely motion to reopen, based on his former lawyer’s performance and his family ties. More than 18 months after his final order, he filed a “supplement” raising VAWA for the first time. The Board called the two filings “wholly unrelated.” A claim of abuse by a spouse is “fundamentally different” from a claim that the spouse petitioned for him or would suffer hardship. The supplement was “in fact a second motion to reopen,” and it had missed the one-year deadline.

D-E-B- also shows how far the time waiver goes when it is available. That man had not yet used a VAWA motion, so the waiver was at least open to him. The Board did not stop to weigh his daughter’s hardship. It denied reopening as a matter of discretion, pointing to a harassment conviction involving a foot-long butcher’s knife. A waiver request does not guarantee a look at the hardship.

Read together, the two decisions draw a usable line. The man in B-S-H- added the USCIS notice to his pending VAWA motion as a supplement, and nothing in the opinion treats that addition as a separate motion. In our reading, more evidence for the same claim, filed while the motion is still undecided, is the safer course. A new claim dressed as a supplement, or a new filing after denial, is a second motion.

He asked the Board to reopen on its own, and it refused

He had one more request. He also urged the Board to use its power to reopen a case on its own, known as sua sponte reopening, under 8 C.F.R. § 1003.2(a) (2025). Repeating its earlier decisions, the Board called that power an “extraordinary remedy reserved for truly exceptional situations,” not “a general remedy for any hardships created by enforcement of the time and number limits.” Looking at the whole case, it found nothing exceptional, declined to reopen, and denied his request for a stay of removal as moot.

That ruling rests on the 2025 text of the regulation. A lawyer should confirm the operative text of the paragraph before relying on a request for sua sponte reopening. See Later developments.

What the Ninth Circuit adds for California cases

Four points of federal law affect what a California reader can do with this rule.

The first is how hard the time waiver is to win. Magana-Magana v. Bondi, 129 F.4th 557 (9th Cir. 2025), involved a woman who had been abused by partners for much of her life. Her VAWA motion came years after her final order, and she argued that the severity of the abuse was itself extraordinary. The court held it could review the Board’s extraordinary-circumstances ruling, because applying that standard to settled facts is a legal question. But its review is deferential, and she lost: “The ‘extraordinary circumstances’ demanded by the statute must constitute something more than abuse.” The court added that nothing in the record tied extraordinary circumstances to the more than a year that passed after her divorce proceedings began. In practical terms, a late first motion has to explain what kept the person from filing, not only what was done to her.

The second is equitable tolling. The Ninth Circuit “recognizes equitable tolling of deadlines and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.” That is Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003), and Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011), repeated it. Sun v. Mukasey, 555 F.3d 802, 806 (9th Cir. 2009), applied tolling to the one-year VAWA deadline for a battered spouse whose lawyer wrongly thought the petition had to be approved first. She filed more than two years after her final order. The court held the deadline tolled and sent the case back for the Board to consider her motion on its merits, because she moved within a month of learning of the error.

Two cautions go with that. Magana-Magana assumed without deciding that tolling is available for late VAWA motions, called the point “an open question,” and did not discuss Sun. A lawyer should cite Sun, a published decision tolling this very deadline, and expect the government to answer with the “open question” language. The panel also left open the government’s argument that tolling applies only to ineffective assistance of counsel. It held her tolling claim unexhausted because she had never raised tolling, or diligence, with the Board. And it added that it would have denied tolling anyway: She was “years late,” including years when she no longer lived with or was married to her husband, and diligence must be shown “not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well.”

B-S-H- is about the statutory waiver and does not mention tolling. Note the words “numerical limits” in Iturribarria, which described Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002), as tolling numerical limits because of attorney fraud. Applying that general tolling rule to a second VAWA motion is an argument, not a settled path. The government can be expected to say the statute’s limit of one leaves no room for it. A prior denial by itself does not establish tolling: The claim still needs a filing obstacle such as fraud or serious error and the required diligence. And a tolling win does not end the case. Iturribarria showed a prima facie right to tolling, having hired new counsel promptly and learned of his lawyer’s conduct within a month of the Board’s denial. He still lost, because he could not show her conduct changed the outcome. Avagyan won on one ground and lost on another, depending on when she first had reason to suspect her lawyers. For how the court treats diligence when an earlier filing would have been pointless, see our Avila-Morales analysis.

The third is the limited review of sua sponte denials. Magana-Magana repeated that the Board’s refusal to reopen on its own is a discretionary decision courts cannot review. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016), allows review only for legal or constitutional error, and Lona v. Barr, 958 F.3d 1225, 1227 (9th Cir. 2020), calls that “one narrow exception.” A claim that the Board misread the law can be reviewed. A complaint about how it weighed your circumstances cannot.

The fourth is who decides what the statute means. Immigration judges and the Board must follow B-S-H-. A federal court exercises “independent judgment” on the question under Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 412 (2024). The text gives a challenger little to work with, but the issue is one a court may decide fresh if you preserve it.

A jointly filed motion stands apart from all of this. The immigration-court rule, 8 C.F.R. § 1003.23(b)(4)(iv), says time and number limits do not apply to a motion “agreed upon by all parties and jointly filed.” The government has no duty to agree. The Board’s own parallel rule, in § 1003.2, was among the provisions the 2024 rule changed, so the same check applies there.

Making the one motion count

• Write down the date of your final order and count one year. Here the Board measured from its own decision affirming the judge. Waiting for a better record past that date means depending on a discretionary waiver.
• Do not rely on the USCIS prima facie letter to prove the motion. Put the declaration, proof of the marriage, and evidence of abuse and any hardship into the motion. The statute lets the motion go in with a self-petition “that has been or will be filed,” and Sun confirms that a lawyer who waits for approval has made a mistake. Approval is not the gatekeeper. Proof is.
• If you are seeking cancellation too, address each requirement. The first motion here failed on both hardship and cruelty.
• Add evidence while the motion is pending, and keep it on the same claim. File it as a supplement promptly. Do not use a supplement to raise a new form of relief.
• After a denial, choose the correct motion. A motion to reconsider has a 30-day deadline and must point to errors in the existing record. Attach new evidence and the Board may treat it as a motion to reopen, which is exactly what happened here.
• If more than a year has passed and you have never filed a VAWA motion, the waiver is still in play. In the Ninth Circuit, abuse alone will not meet the standard, so explain specifically what kept you from filing or what hardship your child faces, and be ready to answer anything in your record that could lead to a denial in discretion.
• Stay in the United States. The statute requires physical presence when the motion is filed.
• If someone else ruined your first motion, act now, and raise “equitable tolling” expressly with the Board. The court looks at your diligence before and after the obstacle, and the argument is lost if it is never raised.

Later developments. After this analysis’s March 25, 2026 date, a federal court in Texas v. Department of Justice, No. 7:26-cv-00070, ECF 5 (N.D. Tex. June 22, 2026), vacated the 2024 rule that had revised § 1003.2(a). The district court denied intervention on August 21 and a stay on September 2; the Fifth Circuit denied a stay and summary reversal of the intervention ruling on September 29. The Board continued to invoke its own-motion authority under § 1003.2(a) in Matter of M-M-L-J-, 29 I&N Dec. 843, 845–48 (BIA Aug. 18, 2026). That decision also held that equitable tolling does not excuse the general limit on the number of reopening motions. The Board said it would apply that rule in circuits that have not decided the question and acknowledged Ninth Circuit decisions allowing tolling of numerical limits. The motion there did not invoke the VAWA exception. A California lawyer evaluating a second VAWA motion must therefore address both the Board’s later reasoning and the governing Ninth Circuit authority.