New BIA Decision Makes the First Motion to Reopen More Important Than Ever

Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026): What immigrants with removal orders—and their attorneys—must understand

A motion to reopen can give an immigrant a critical opportunity to challenge a removal order, present previously unavailable evidence, seek newly available immigration relief, or expose serious mistakes made by prior counsel. But under a significant new precedent from the Board of Immigration Appeals, most immigrants cannot simply file another motion if the first one fails.

On August 18, 2026, the BIA issued Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026). The Board held that, subject to limited exceptions, a noncitizen is permitted to file only one motion to reopen in total—whether that motion is filed with the Immigration Court or with the BIA.

Even more importantly, the BIA held that the numerical limit generally cannot be equitably tolled because of ineffective assistance of counsel. In other words, although attorney misconduct may sometimes excuse a late filing, the Board concluded that it does not automatically restore the right to file a second motion.

For immigrants facing deportation, this decision delivers a serious warning: your first motion to reopen may be your only motion.

Do not waste that opportunity on a rushed, incomplete, or poorly supported filing. Before submitting anything, speak with an experienced New York immigration attorney who understands removal defense, BIA appeals, federal court litigation, and the complicated exceptions governing motions to reopen.

What Is a Motion to Reopen?

A motion to reopen asks an Immigration Judge or the BIA to reopen completed immigration proceedings so that new facts and evidence can be considered.

It is not simply a request to argue the same case again. A proper motion usually must identify new facts and support them with affidavits, records, applications, or other evidence. The evidence ordinarily must be material and must not have been available—or reasonably discoverable—during the earlier proceedings.

A motion to reopen may become relevant when, for example:

• An immigrant did not receive proper notice of a hearing.
• Prior counsel provided ineffective assistance.
• Material evidence was unavailable during the original case.
• Conditions in the immigrant’s country materially changed.
• A criminal conviction was legally vacated.
• A new form of immigration relief became available.
• The Department of Homeland Security agrees to a joint motion.
• An immigrant becomes eligible for relief as a qualifying battered spouse, child, or parent.
• A serious procedural or constitutional violation affected the proceedings.

As a general rule, a motion to reopen must be filed within 90 days of the final administrative decision. The ordinary rule also permits only one motion to reopen. These requirements appear in INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7), and the applicable regulations.

There are important exceptions, but they are technical and fact-specific. The EOIR Policy Manual explains that motions involving changed country conditions, certain in absentia orders, joint filings, and qualifying battered spouses, children, or parents may receive special treatment.

What Happened in Matter of M-M-L-J-?

The respondent in Matter of M-M-L-J- was a citizen of Jordan who entered the United States in 2010 as an F-1 student. He was later charged with failing to comply with the conditions of his nonimmigrant status.

An Immigration Judge ordered him removed and denied his application for special-rule cancellation of removal. The BIA dismissed his appeal in March 2020.

After that decision, the respondent filed multiple motions to reopen:

1. His first motion relied on an I-130 petition filed by his second wife.
2. His second motion alleged ineffective assistance of former counsel.
3. His third motion relied on an I-130 petition filed by his third wife, a naturalized United States citizen.
4. His fourth motion again invoked the I-130 petition and ineffective assistance of counsel.

The BIA denied the fourth motion. It concluded that the respondent had already exceeded the statutory numerical limit and had not established a basis for the Board to reopen the proceedings on its own initiative.

The published decision is available directly from the Department of Justice: Matter of M-M-L-J-, 29 I&N Dec. 843.

The BIA’s Central Holding: One Motion Means One Motion

INA § 240(c)(7)(A) states that a noncitizen may file one motion to reopen, subject to a statutory exception involving certain battered spouses, children, and parents.

In Matter of M-M-L-J-, the Board interpreted this language strictly. It held:

“An alien is permitted to file only one motion to reopen, whether with the Immigration Court or the Board of Immigration Appeals, subject to the limited statutory exception for battered spouses, children, and parents.”

This means that a person ordinarily does not receive one motion before the Immigration Judge and another motion before the BIA. The numerical limit applies across the administrative proceedings.

That distinction can be decisive. A person who files an inadequate motion with the Immigration Court may later discover additional evidence, a better legal theory, or attorney errors. But unless an exception applies, the later motion may be rejected as number-barred before the BIA ever reaches its underlying merits.

This is why a motion to reopen should not be treated as a simple form or routine filing. It is a major piece of appellate litigation that may represent the person’s only statutory chance to reopen the case.

Equitable Tolling May Excuse Time—but the BIA Says It Does Not Excuse Number

Equitable tolling is a legal doctrine that can, in appropriate circumstances, excuse a missed deadline. In immigration cases, it is often raised when ineffective assistance of counsel, fraud, or another extraordinary circumstance prevented a person from filing on time despite reasonable diligence.

The respondent in Matter of M-M-L-J- argued that ineffective assistance should equitably toll both the filing deadline and the numerical limitation.

The BIA disagreed.

Relying heavily on the Fifth Circuit’s decision in Garcia Morin v. Bondi, the Board distinguished between:

• A time limitation regulating when a motion may be filed; and
• A numerical restriction regulating how many motions may be filed.

The Board held that the one-motion limit is a substantive restriction reflecting Congress’s interest in the finality of immigration proceedings. It therefore concluded that equitable tolling does not generally apply to the numerical bar.

This creates a dangerous situation for immigrants harmed by prior counsel. An ineffective-assistance claim may potentially excuse an untimely first motion, but under the new BIA precedent, it may not authorize a second or fourth motion after the statutory opportunity has already been used.

The New Decision Contains an Important New York Qualification

The rule must be analyzed carefully in cases arising in New York.

New York immigration cases fall within the jurisdiction of the United States Court of Appeals for the Second Circuit. In Zhao v. INS, 452 F.3d 154 (2d Cir. 2006), the Second Circuit recognized equitable tolling of both the time and numerical limitations in an ineffective-assistance context.

The BIA acknowledged Zhao in its new decision, along with decisions from the Seventh and Ninth Circuits that have applied equitable tolling to the numerical bar “in some fashion.”

The Board nevertheless stated that it was persuaded by the Fifth Circuit’s more recent analysis. But it also explained that its new rule will be applied in circuits that have not already decided the issue. Under the BIA’s established approach, it follows controlling federal appellate law in cases arising within that circuit.

That makes jurisdiction extremely important.

A motion arising from proceedings in New York may require a different analysis from one arising in a state governed by the Fifth or Sixth Circuit. A qualified New York immigration lawyer must evaluate both the BIA precedent and controlling Second Circuit authority instead of assuming that one nationwide answer applies to every case.

At the same time, no immigrant should assume that Zhao guarantees reopening. Equitable tolling requires a carefully developed showing. The applicant may need to establish extraordinary circumstances, compliance with the procedural requirements for an ineffective-assistance claim, resulting prejudice, and reasonable diligence throughout the period sought to be tolled.

What Exceptions May Still Permit Another Motion?

The phrase “only one motion” is powerful, but it is not the end of every case. Statutes, regulations, and precedent recognize several circumstances in which the ordinary time or numerical limits may not apply.

1. Changed country conditions

A person may be able to file a motion seeking asylum, withholding of removal, or protection under the Convention Against Torture based on materially changed conditions in the country of removal.

The evidence must ordinarily be material and must not have been available or discoverable at the earlier hearing. A change in the immigrant’s personal circumstances, standing alone, is not necessarily the same as changed conditions in the country.

Significantly, Matter of M-M-L-J- expressly declined to decide whether its number-bar holding applies to motions based on changed country conditions, because the respondent had not made such a request. That reservation must not be overlooked.

A strong motion should connect reliable, current country evidence to the applicant’s individual risk. Simply attaching articles or a new country report without explaining that connection is usually insufficient.

2. Joint motions to reopen

When DHS agrees to join a motion, the ordinary time and numerical limitations generally do not apply under the regulations.

But DHS is not required to agree. Counsel usually must present a compelling request supported by a complete procedural history, proof of eligibility, positive equities, and a persuasive explanation of why reopening is appropriate.

A request for DHS consent is not itself a motion, and DHS’s silence should not be treated as approval.

3. Special protections for battered spouses, children, and parents

INA § 240(c)(7)(C)(iv) contains special rules for certain qualifying battered spouses, children, and parents. The statute imposes specific eligibility and filing requirements, so the exception must be evaluated carefully.

4. In absentia removal orders

Special rules apply when a person was ordered removed after failing to appear at a hearing. Depending on the circumstances, reopening may be sought because the person did not receive proper notice or because exceptional circumstances caused the failure to appear.

Deadlines, evidentiary requirements, and stay provisions differ from those governing an ordinary motion to reopen.

5. Sua sponte reopening

Immigration Judges and the BIA possess discretionary authority to reopen proceedings on their own initiative. This is commonly called sua sponte reopening.

However, it is not a substitute for an otherwise defective motion. The BIA repeatedly emphasizes that this authority is reserved for truly exceptional situations and is not designed merely to cure missed deadlines or avoid regulatory restrictions.

In Matter of M-M-L-J-, the respondent labeled his request as one seeking sua sponte reopening. The Board examined its substance and concluded that he was really attempting to obtain another statutory motion through equitable tolling. It also found no exceptional situation warranting discretionary reopening.

A recent marriage, approved petition, sympathetic circumstances, or hardship may be relevant, but those factors do not automatically require the BIA to act sua sponte.

Why an Approved I-130 May Not Be Enough

One of the most dangerous misconceptions is that marriage to a U.S. citizen—or even approval of an I-130 petition—automatically eliminates a removal order.

It does not.

An approved I-130 generally confirms the qualifying family relationship. It does not automatically reopen Immigration Court proceedings, erase a removal order, waive inadmissibility, or establish eligibility for adjustment of status.

Before filing a motion based on a family petition, counsel should examine:

• Whether the I-130 is pending or approved.
• Whether the marriage occurred before or after proceedings began.
• Whether the person is eligible to adjust status.
• Whether the Immigration Court or USCIS would have jurisdiction.
• Whether unlawful presence or another inadmissibility ground applies.
• Whether a waiver is required and available.
• Whether the person entered with inspection or has another statutory basis for adjustment.
• Whether prior statements, applications, marriages, or criminal history create additional problems.
• Whether the motion satisfies the time and numerical requirements.

In Matter of M-M-L-J-, successive marriages and I-130 filings did not overcome the numerical bar. That history illustrates why strategy must be evaluated before the first motion is filed.

Five Mistakes That Can Destroy a Motion to Reopen

Filing before obtaining the complete record

An attorney should usually review the Immigration Judge’s decision, the BIA decision, prior motions, hearing records, applications, evidence, and filing history. Without that record, counsel may miss a jurisdictional problem, a prior motion that counts against the numerical limit, or an argument already rejected.

Submitting evidence without explaining its legal significance

A collection of documents is not a legal argument. The motion should identify the new facts, explain why the evidence was previously unavailable, connect it to the requested relief, and demonstrate how reopening could change the result.

Ignoring Matter of Lozada

An ineffective-assistance claim generally requires attention to the framework established in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Depending on the case, this may involve an affidavit describing the representation agreement and misconduct, notice to former counsel with an opportunity to respond, and a disciplinary complaint or a persuasive explanation for not filing one.

The applicant must also usually demonstrate prejudice and reasonable diligence.

Filing in the wrong place

Jurisdiction depends on the procedural posture. A motion may belong before the Immigration Judge or the BIA. When an appeal is pending, a filing characterized as a motion to reopen may instead be treated as a motion to remand.

Filing in the wrong forum can consume valuable time and create avoidable complications.

Assuming that filing stops removal

An ordinary motion to reopen generally does not automatically stay execution of a removal order. A stay request may need to be filed separately, and the governing rules must be evaluated immediately.

Why You Need an Experienced New York Immigration Attorney

After Matter of M-M-L-J-, the first motion to reopen must be approached as though it may be the client’s only chance.

An experienced New York immigration attorney should do more than prepare a form. Counsel must reconstruct the procedural history, identify every possible exception, determine which court has jurisdiction, research controlling circuit law, preserve appellate issues, obtain supporting evidence, and present a coherent theory of prejudice and eligibility.

If reopening is denied, counsel must also evaluate whether an appeal to the BIA or a petition for review in the appropriate federal circuit court is available. These remedies have strict deadlines and different standards of review.

The best deportation lawyer for a particular case is not the person who promises an easy approval. It is the attorney who identifies the risks honestly, understands how BIA precedent interacts with federal appellate law, and builds the strongest legally supportable record from the beginning.

Do Not Use Your Only Motion Without a Complete Strategy

A removal order does not always mean that every legal option is gone. But a motion to reopen is not unlimited, and the BIA’s newest precedent makes strategic preparation more important than ever.

If you already have a removal order, received ineffective representation, married a U.S. citizen, obtained an approved petition, fear returning because conditions in your country have changed, or missed an immigration hearing, have your complete history reviewed before filing anything.

The Law Office of Alena Shautsova represents immigrants in complex removal defense matters, motions to reopen, BIA appeals, and related immigration litigation. A carefully prepared motion may offer an important path forward. A premature filing may use the only statutory motion available.

To schedule a paid consultation with an experienced New York immigration lawyer, visit www.shautsova.com or call 917-885-2261.

This article provides general information and does not create an attorney-client relationship. Motion-to-reopen rules vary according to the facts, procedural history, jurisdiction, and controlling law.