Joint Motions and Getting the Government to Agree
A motion both parties sign escapes limits that would otherwise defeat it outright. Obtaining that signature is a separate exercise from writing the motion, conducted outside the courtroom, and it succeeds or fails before anything is filed with anyone.
The rule in short
The time and numerical limits on motions to reopen before the Board do not apply to a motion agreed upon by all parties and jointly filed, and the parties remain free to contest the issues once proceedings are reopened. The equivalent regulation before the immigration judge contains no joint-motion exception, so a late motion there depends on the judge's own authority to reopen. Agreement is discretionary on the government's side and is never guaranteed.
A motion to reopen filed after the deadline is normally rejected without reaching its merits. One route around that has nothing to do with the strength of the case: if the other side signs the motion, the limits do not apply. Getting the signature is a task in itself, conducted before anything is filed and on a different footing from litigation.
What the regulation actually exempts
Before the Board of Immigration Appeals, the time and numerical limits on motions to reopen do not apply to a motion agreed upon by all parties and jointly filed. The regulation adds a sentence that matters: notwithstanding such agreement, the parties may contest the issues in a reopened proceeding.
That sentence removes the most common objection to agreement. Consenting to reopen is not a concession on the merits. The government can agree that a case should be looked at again and then oppose every application filed in it.
The same regulation lists three other exemptions: motions filed under specified provisions relating to abused spouses and children, motions to apply or reapply for protection based on changed conditions in the country, and certain motions filed by the government in older forms of proceedings.
The gap before the immigration judge
The regulation governing motions before the immigration court is structured differently, and it contains no joint-motion exception. Its exceptions cover protection claims based on changed country conditions, orders entered after a failure to appear, and the provisions relating to abused spouses and children.
What it does contain is a broader opening sentence: the judge may, on the judge's own motion at any time, reopen or reconsider any case in which the judge has rendered a decision. That authority is the route a late motion takes before the court, and a joint request is presented as an invitation to exercise it rather than as a claim to an exemption.
The distinction has a practical consequence. Before the Board, agreement lifts the limits as a matter of regulation. Before the judge, agreement makes the exercise of a discretionary authority far more likely but does not compel it.
| Route to a late motion | What it requires | Who controls the outcome |
|---|---|---|
| Joint motion before the Board | Agreement by all parties and joint filing | The government, then the Board's discretion |
| Changed country conditions | Protection relief, changed conditions, new material evidence | The adjudicator, on the evidence |
| Judge's own authority to reopen | A persuasive reason; nothing the person can demand | The judge alone |
| Ineffective assistance with tolling | Affidavit, notice to the former representative, complaint, prejudice | The adjudicator, and the circuit's approach to tolling |
| Government motion | The government's own decision to move | The government |
The exemption is written for a motion agreed upon by all parties and jointly filed. A motion the government does not oppose, or does not respond to, is not within it. That distinction is easy to lose in practice, because in other contexts, such as termination and administrative closure, non-opposition carries almost the same weight as agreement. In the reopening regulation it does not.
Making the request
The request is a short letter or email to the government lawyers handling the case, at the office covering the court where the case was completed. It should state the relief sought, attach the documents that support it, and explain in a paragraph why the case should be looked at again.
What tends to persuade is a discrete, documented change: a conviction vacated for a legal defect, an approved petition that makes a form of relief newly available, a decision of a court of appeals that changes the classification of an offense, or a defect in the prior proceeding evidenced by the record. What tends not to persuade is length, or an account of hardship unaccompanied by any change in the legal position.
Timing is the second variable. A request made weeks before a scheduled removal, with complete documents, can be considered. One made the day before cannot. Preparing the underlying documents first and approaching the government only when the package is complete is more effective than opening a conversation early and following up with paperwork.
Where the change is a vacated conviction, the certified order and the motion that produced it are the whole request, and their wording decides it, as described in vacating a conviction for immigration purposes.
The form of the eventual filing matters as well. A joint motion is a single document signed by both sides, stating the agreed relief and attaching the supporting material. A motion signed by one party with a letter of consent attached is a weaker version of the same thing and invites an argument about whether the exemption applies. Where agreement has been reached, the wording of the joint filing is worth settling with the other side before it is submitted.
Fees are the last practical point. Motion fees and the routes to a waiver are set by regulation, and a motion filed without the fee or an accompanying waiver request is not properly filed at all, however complete the rest of it is.
What agreement does not do
Agreement lifts the procedural limits. It does not decide the motion, which remains discretionary, and it does not grant anything. A reopened case returns to the calendar with the applications still to be filed, the evidence still to be assembled, and the government free to oppose.
Nor does agreement bind the government to anything afterward. A case reopened by consent can be litigated to a second removal order, and the fact that the government once agreed to reopen carries no weight in that litigation. The regulation says so directly by preserving the parties' right to contest the issues.
Agreement also does nothing about the departure rule. A motion may not be made by or on behalf of a person after departure, and any departure occurring after a motion is filed, including a removal carried out by the government, is treated as a withdrawal of the motion. A joint motion filed while removal arrangements are proceeding needs a stay request alongside it.
Where the objective is to end the case rather than to relitigate it, the government's agreement can also be directed at dismissal or termination, which run on their own rules and produce different results, compared in dismissal without prejudice and termination of proceedings. Where the case is a protection case and the country has changed, no agreement is needed at all, as set out in changed country conditions as an exception to the deadline. Choosing among these before approaching anyone is the assessment a late reopening immigration counsel makes, because a refused request weakens every route that follows it. Where the loss was caused by a representative rather than by circumstance, the separate framework in reopening for ineffective assistance applies instead.
Points to carry away
- A jointly filed motion escapes the time and numerical limits that apply before the Board.
- Agreeing to reopen does not concede anything; the parties may contest the issues afterward.
- The regulation governing motions before the immigration judge contains no joint-motion exception.
- An unopposed motion is not the same thing as one agreed upon and jointly filed.
- Departure from the United States after filing is treated as a withdrawal of the motion.
Questions readers ask
What makes a request to the government worth considering?
Requests that succeed tend to share features: a concrete legal development that changes the outcome, a vacated conviction, an approved petition making relief newly available, or a defect in the earlier proceeding that is documented rather than asserted. The request should be short, attach the supporting documents, state exactly what order is sought, and explain why reopening serves an interest beyond the person's own. Long narratives about hardship rarely move a decision of this kind.
Who is the request actually made to?
It goes to the government lawyers who handle the case, at the office covering the court where the case was completed, and where a case is on appeal it may go to counsel handling it at that level. The person deciding is a lawyer with a caseload rather than a policy office, so timing matters: a request made shortly before a scheduled removal is unlikely to receive attention, while one made with lead time and complete documents can be considered properly.
If the government refuses, is that the end?
No, but the remaining routes are narrower. A late motion can still be filed and argued on the judge's own authority to reopen, which is discretionary and not something the person can demand. Where the case involves protection and conditions in the country have changed, the statutory exception applies regardless of the government's position. Where a representative's failure caused the loss, that framework applies. Refusal closes one door rather than all of them.
Sources
- 8 C.F.R. § 1003.2 — Reopening or reconsideration before the BoardExempts a motion agreed upon by all parties and jointly filed from the time and numerical limits.
- 8 C.F.R. § 1003.23 — Reopening or reconsideration before the immigration courtContains the judge's own authority to reopen and the exceptions available before the court.
- 8 U.S.C. § 1229a — Removal proceedingsSets the statutory deadline and the one-motion limit that agreement is used to escape.
- 8 C.F.R. § 1239.2 — Cancellation of notice to appearGoverns the related step of dismissal on a government motion after reopening.
- 8 C.F.R. § 1003.18 — Docket managementRequires a joint or unopposed motion to terminate or close to be granted absent stated reasons.
- EOIR, Types of Appeals, Motions, and Required FeesIdentifies the motion types and the fees that attach to each.
Metro Law Advisors is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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