Motion to Reopen a Removal Order: What Counts as New Evidence?

Read the statutory requirements for motions to reopen.

Related case analysis: INS v. Abudu: A Motion to Reopen Needs More Than New Allegations.

After a removal order, a new threat, witness or official record may give you reason to seek another look at your case. The immediate question is how that evidence changes the earlier decision—and whether the motion can be filed in time. Start with the order and the proposed evidence together, so urgent collection efforts answer the actual problem in the record.

Identify the finding the new evidence could change

Read the decision’s stated reasons before asking witnesses for more declarations. If a claim failed because the evidence did not connect a threat to a protected ground, another document showing that violence occurred may leave the same gap. Ask what the witness actually knows about the reason for the threat and how that knowledge addresses the finding.

Use a short evidence chart with four entries for each item: The fact it supports, the earlier finding it could affect, when the information became available and why it could not have been presented before. Keep the original record beside the new material. This exposes both a useful new fact and a document that merely retells an old one.

Separate new evidence from eligibility for relief

The statute requires a motion to state the new facts to be proved at a hearing and to support them with affidavits or other evidence. 8 U.S.C. section 1229a(c)(7)(B) supplies that requirement. For a motion before the Board, 8 C.F.R. section 1003.2(c)(1) also addresses prior availability, materiality and the underlying application for relief.

A declaration should explain the witness’s knowledge. Counsel can then connect that account to the legal requirement in dispute. An attorney’s summary of what someone might say is not the same record as the witness’s own supported statement.

In INS v. Abudu, 485 U.S. 94 (1988), the Board had two independently sufficient reasons for refusing reopening. The Supreme Court upheld the failure-to-explain ground even though a timely initial application with the same allegations would have required an evidentiary hearing. Abudu states that contrast. Our analysis of the later government official’s visit examines that particular record; this guide focuses on preparing your proposed evidence.

Check the deadline while collecting the evidence

The ordinary statutory rule permits one motion within 90 days of entry of the final administrative removal order, subject to exceptions. The changed-country-conditions provision has its own requirements: Material evidence concerning conditions in the relevant country that was unavailable and could not have been discovered or presented at the previous proceeding. Section 1229a(c)(7) identifies those rules and other specified situations.

Bring the complete order, service record and any appeal decisions promptly. A request for a missing record does not itself establish a filing exception. Counsel needs to identify the applicable route and what evidence remains missing while assessing the available time. Keep the date an event occurred separate from the date you obtained a document about it.

Explain the earlier obstacle with specific facts

For each declaration or record, identify its author, creation date, relevant event and acquisition history. Explain an actual obstacle: A witness whose location became known later, a record released after an earlier request, or a development that occurred after the hearing. Those are issues to document, not assumptions that establish reopening by themselves.

When relying on changed country conditions, compare the earlier evidence with the later evidence. Identify the particular change and how it affects the person’s claim. A current report is easier to assess when the reader can see what it adds to the earlier country record. Preserve the source, date and complete relevant text.

Prepare the filing for the tribunal handling it

Identify whether the immigration judge or the Board entered the decision being challenged. The Board’s reopening rule requires the appropriate relief application and supporting documentation when seeking permission to submit that application. Its filing provisions address English or certified translations, representation and service.

Reconsideration asks for correction of an error in the existing decision; reopening presents new facts. If both are relevant, explain each ground separately and check the requirements for each. Keep the receipt, proof of service and exact version filed with the evidence chart. Our analysis of Abudu’s independent denial grounds explains why answering only one reason may leave another untouched.

Assess removal risk separately from the evidence packet

Tell counsel about detention, reporting dates, travel arrangements and any removal notice. The Board’s stay provision generally states that filing a motion does not stop execution of the decision and identifies exceptions. The statute also supplies particular stay protections for qualifying motions. The type of order, motion and decision-maker therefore matters.

Request a specific review of the stay question alongside the motion. Keep any stay order and its scope with the case papers. A pending motion and a granted stay are different records; the evidence packet should not obscure that practical risk.

Check what each proposed exhibit adds

• Name the earlier finding the evidence could change and the fact it supports.
• Separate the event date, the witness’s knowledge and the document’s creation or release date.
• Document the actual reason the evidence could not have been presented earlier.
• Check the requested relief, filing route, deadline or exception, application and stay question together.