Motion to Reopen Removal Proceedings with the BIA — Loblack Strategy
Offices in Orlando & Plantation, Florida. Serving clients throughout Florida, the U.S. Virgin Islands, across the U.S., and globally. Virtual and in‑person consultations available.
How do I legally reopen my immigration case if the 90-day deadline has already passed?
Attorney Loblack files a precise Motion to Reopen under 8 C.F.R. § 1003.2(c) that establishes a strict statutory exception to the time bar, such as equitable tolling or changed country conditions, to restore BIA jurisdiction and halt deportation.
This page details the legal standards governing BIA Motions to Reopen, the statutory exceptions to the 90-day deadline under INA § 240(c)(7), and how Loblack Strategy builds the necessary evidentiary record to vacate a final removal order.
The Legal Standard Under 8 C.F.R. § 1003.2(c)
Filing a Motion to Reopen directly with the Board of Immigration Appeals is required when the BIA was the last administrative body to render a decision in your case. Under 8 C.F.R. § 1003.2(c), a Motion to Reopen must state new facts that will be proven at a subsequent hearing. Attorney Loblack structures these filings to establish that the new evidence is material and was not available—and could not have been discovered or presented—during the prior proceedings.
Overcoming Statutory Time and Number Bars
Under INA § 240(c)(7), respondents are generally restricted to filing exactly one Motion to Reopen within 90 days of the final administrative decision. However, Attorney Loblack regularly applies Loblack Strategy to establish recognized legal exceptions that restore the BIA's jurisdiction long after the 90-day window has closed:
1. Equitable Tolling and Ineffective Assistance of Counsel
If prior counsel's incompetence or fraud caused the loss of your case or caused you to miss a filing deadline, Attorney Loblack invokes equitable tolling. By strictly complying with the procedural requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), he proves that you exercised due diligence upon discovering the prior attorney's error, thereby legally pausing the 90-day statutory clock.
2. Changed Country Conditions
For individuals seeking asylum, withholding of removal, or CAT protection, the 90-day deadline and one-motion limit do not apply under 8 C.F.R. § 1003.2(c)(3)(ii). Attorney Loblack compiles extensive, objective country condition reports and expert declarations to demonstrate a material deterioration in the country of origin since the initial hearing.
3. The Board's Sua Sponte Authority
Under 8 C.F.R. § 1003.2(a), the BIA retains the discretionary authority to reopen a case on its own motion at any time. Attorney Loblack utilizes this avenue as a specialized mechanism for cases involving exceptional humanitarian circumstances or substantial changes in controlling law that render continued removal unconstitutional or unjust.
Loblack Strategy vs. What General Attorneys/Advisors Do
| Loblack Strategy | General Immigration Attorney Approach | Nonlawyer / Consultant Approach |
|---|---|---|
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Evidentiary Materiality Audit. Attorney Loblack meticulously proves that new evidence was previously unavailable and material under 8 C.F.R. § 1003.2(c), establishing a prima facie case for relief. |
Cumulative Submissions. General practitioners often submit evidence that was already available during the first trial, leading to an immediate statutory denial. |
Unauthorized Practice. Consultants cannot draft legal motions before the BIA, resulting in rejected filings and swift removal. |
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Strict Lozada Compliance. When asserting ineffective assistance of counsel, Attorney Loblack satisfies every procedural prong of Matter of Lozada to secure equitable tolling. |
Informal Blame. Standard attorneys make casual allegations against prior lawyers without filing bar complaints or formal affidavits, causing the BIA to reject the tolling claim. |
Procedural Ignorance. Notarios lack the legal knowledge required to execute federal malpractice claims under BIA precedent. |
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Concurrent Stay Litigation. Attorney Loblack immediately files an Emergency Motion for a Stay of Removal alongside the Motion to Reopen to prevent ICE deportation during review. |
Assumed Protection. Many attorneys mistakenly assume filing the motion stays deportation, leaving the client vulnerable to immediate physical removal. |
Complete Disenfranchisement. Reliance on non-lawyers routinely results in summary deportation while paperwork sits unreviewed. |
Real Case Highlight
Issue: A respondent faced an unexecuted removal order issued three years prior after former counsel failed to file a timely asylum application and omitted key evidence regarding political persecution.
Argument on Appeal: Attorney Loblack filed a Motion to Reopen directly with the BIA, arguing for equitable tolling of the 90-day deadline based on ineffective assistance of counsel under Matter of Lozada and changed country conditions.
Reframed Evidence: Attorney Loblack built a comprehensive evidentiary packet including:
- Detailed affidavits satisfying all procedural mandates of Matter of Lozada.
- Proof of a formal bar complaint filed against prior counsel.
- Updated human rights reports proving newly escalated targeting of the respondent's political organization.
Outcome: The Board of Immigration Appeals granted the Motion to Reopen, equitable tolled the statutory deadline, vacated the three-year-old removal order, and remanded the proceedings to the Immigration Court for a full hearing on the merits.
Learn more: visit the Loblack Strategy Center →
Where These Motions Most Often Go Wrong
Motions to Reopen before the BIA are strictly scrutinized. Attorney Loblack frequently takes over cases where prior filings were summarily denied due to procedural defaults. These are the specific points of failure we correct:
- Submitting Cumulative Evidence. Providing new documents that merely reiterate facts already in the record rather than demonstrating previously unavailable material facts.
- Failing to Attach the Application for Relief. Omitting the underlying application (such as Form I-589 for Asylum or Form I-485 for Adjustment) required by 8 C.F.R. § 1003.2(c)(1).
- Ignoring Due Diligence Requirements. Failing to prove that the respondent acted with reasonable promptness upon discovering prior counsel's ineffective assistance or new country conditions.
- Failing to Seek an Emergency Stay. Submitting a Motion to Reopen without an accompanying stay request, allowing ICE to execute the removal order while the motion is pending.
- Defective Bar Notice under Lozada. Failing to provide prior counsel with adequate notice and an opportunity to respond before filing an ineffective assistance claim.
Myths & Reality About BIA Motions to Reopen
| Pre-Retention Misconception | The Legal Reality |
|---|---|
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If my 90 days have passed, I can never file a Motion to Reopen. |
The 90-day window can be overcome through statutory exceptions such as changed country conditions or equitable tolling due to prior attorney ineffective assistance. |
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Filing a Motion to Reopen automatically stops ICE from deporting me. |
A Motion to Reopen confers no automatic stay; Attorney Loblack must separately litigate an Emergency Motion for a Stay of Removal with the BIA. |
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I can file as many Motions to Reopen as I want. |
INA § 240(c)(7) strictly limits respondents to one Motion to Reopen, making expert legal preparation essential for your single statutory opportunity. |
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I can just tell the BIA my previous attorney was bad. |
The BIA enforces strict procedural rules under Matter of Lozada ; claims without formal bar complaints and affidavits are summarily rejected. |
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I can submit a Motion to Reopen based on marriage without an approved I-130. |
Reopening based on a new marriage requires establishing prima facie eligibility, which usually demands a pending or approved petition and clear evidence of a bona fide relationship. |
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The BIA will reopen my case if I show general hardship. |
The BIA only reopens cases based on specific statutory grounds and material evidence that was previously unavailable during trial. |
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Any lawyer can file a BIA Motion to Reopen. |
BIA practice requires specialized knowledge of administrative standards of review, federal regulations, and appellate briefing techniques. |
Frequently Asked Questions
What is a Motion to Reopen before the BIA?
What is the deadline for filing a Motion to Reopen with the BIA?
How does Attorney Loblack overcome the 90-day deadline?
What is equitable tolling in immigration law?
What are the requirements of Matter of Lozada?
Does filing a Motion to Reopen stop deportation automatically?
How many Motions to Reopen am I allowed to file?
What qualifies as "changed country conditions"?
What is BIA sua sponte authority?
Must I attach a new application for relief to my Motion to Reopen?
Can I reopen my case based on a new marriage to a U.S. citizen?
What is a Joint Motion to Reopen?
How long does the BIA take to rule on a Motion to Reopen?
What happens if the BIA grants my Motion to Reopen?
What happens if the BIA denies my Motion to Reopen?
Can I file a Motion to Reopen if I was deported in absentia?
Why should I retain Attorney Peter Loblack for a BIA Motion to Reopen?
Why Clients Choose Attorney Peter Loblack for BIA Motions to Reopen
Overcoming a final order of removal demands exceptional litigation skill. Clients retain Attorney Loblack because he does not submit routine or template-based filings. Applying over 30 years of federal immigration experience and the rigorous Loblack Strategy, he conducts a forensic audit of prior proceedings, identifies statutory exceptions to time bars, compiles unassailable documentary evidence, and drafts authoritative legal briefs designed to compel the BIA to reopen proceedings.
Evaluating Your Eligibility for a BIA Motion to Reopen
A final removal order requires immediate, strategic legal evaluation. Attorney Loblack analyzes your administrative history, identifies applicable statutory exceptions, and drafts comprehensive Motions to Reopen alongside Emergency Stay applications. Schedule a consultation today.
Peter Loblack Esq., BS, MBA, JD, MPH (Harvard)
Former Federal Law Clerk | Admitted to Practice: U.S. Supreme Court, 11th Circuit Court of Appeals, U.S. District Court (S.D. Fla. & M.D. Fla.)
Peter Loblack Law Firm, PA
Orlando — 3657 Maguire Blvd., Suite 175, Orlando, FL 32803 | (407) 295-0099
Plantation — 6991 W Broward Blvd., Suite 112, Plantation, FL 33317 | (954) 327-8800
Representing clients across Florida, all 50 states, and globally. Virtual and in-person consultations available. You work directly with an experienced immigration attorney — not a call center or a nonlawyer.
Legal Disclaimer: The information on this page regarding 8 C.F.R. § 1003.2(c) and BIA Motion to Reopen procedures is for general informational purposes only and does not constitute formal legal advice. Browse other pages to explore our comprehensive immigration litigation services.