A Motion to Reconsider on a Point of Law

Reconsideration argues that the decision got the law wrong on the record it already had. The motion must state the reasons, cite pertinent precedent showing an incorrect application of law or policy, and establish that the decision was wrong on the evidence of record at the time. New documents do not help, and the window is thirty days with no excusal provision.

The two things it must establish

The regulation sets a double requirement, and motions fail on the second more often than the first. The motion must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or agency policy. It must also establish that the decision was incorrect based on the evidence of record at the time it was made.

The second requirement fixes the record. Whatever was in front of the officer is the universe for this motion, which is why adding documents is not merely unhelpful but actively unhelpful: it signals that the case being argued differs from the case that was decided.

The first requirement asks for authority. A motion that asserts an error without citing anything is a statement of disagreement. One that identifies the provision, shows how it has been applied elsewhere and explains the departure is doing what the regulation asks.

Precedent has a defined meaning here. Designated decisions serve as precedent in agency proceedings involving the same issues, so a published decision on the point is the strongest material available. Controlling court authority does the same work. A decision from a different context, cited because it sounds helpful, does not.

Published agency guidance matters as well, because the regulation covers an incorrect application of policy as much as of law. Where a decision departs from the agency's own published position on a question, that departure is a legitimate and often persuasive ground, and it is usually easier to demonstrate than a misreading of a statute.

What counts as a legal error

The line between error and disagreement is where these motions live. An officer who weighed the evidence and found it unpersuasive has made a judgment. An officer who applied a standard the regulation does not impose, required a document the rules do not require, or overlooked evidence the decision does not mention has done something different.

Identifying which category the decision falls into starts with locating the operative ground, using the approach in reading a denial notice and finding the real reason. A decision with an evidentiary ground rarely supports reconsideration, however unwelcome it is.

Building the argument

Structure it in three moves. State what the decision concluded, quoting the sentence. State the rule that should have been applied, with the provision and the authority. Then show, from the record as it stood, why applying the correct rule produces a different outcome.

Quote sparingly and precisely. A motion that reproduces three pages of a decision loses the sentence that matters inside the reproduction. One sentence quoted, followed by the provision it misapplied, does more than any amount of surrounding context.

Keep the tone flat. The reader is often the office that issued the decision, and a motion that reads as an accusation is harder to grant than one that reads as a correction. The strongest motions make it easy for someone to change position without conceding anything embarrassing.

Length is not the measure. A four-page motion that identifies one provision and one misapplication is more likely to succeed than a thirty-page one covering every disappointment in the case. Peripheral complaints dilute the argument that matters, and they cost the reader's attention at exactly the wrong point.

Timing and the absence of forgiveness

A motion to reconsider must be filed within thirty days of the decision it seeks to reconsider. Unlike a motion to reopen, there is no provision allowing that period to be excused where the delay was reasonable and beyond the filer's control. The date is the date.

An untimely appeal that meets the requirements of a motion may be treated as one, which occasionally rescues a filing that started life as something else. That is a saving provision rather than a plan, and it depends on the substance already satisfying the motion requirements.

Because the window is short and unforgiving, the choice of route has to be made quickly. The comparison between the two motions and an appeal is set out in a motion compared with an appeal after a refusal, and where the material is genuinely new the correct route is described in a motion to reopen on new facts.

When it is worth attempting

Reconsideration suits a decision that is wrong in a way another reader can see immediately: a provision misquoted, a requirement invented, a standard misstated, a controlling authority ignored. It suits a case where the evidence was always sufficient and the analysis went astray.

It suits far less a case where the evidence was thin and the officer said so. In that situation the better options are supplying what was missing through a motion to reopen or starting again with a complete record, and the comparison is set out in refiling instead of appealing.

Drafting a motion of this kind means reading authority and applying it to a written decision, which is legal work in the ordinary sense of the phrase. Where the ground is legal rather than documentary, engaging a motion to reconsider immigration attorney early in the thirty-day window is usually the difference between a motion that is decided and one that is dismissed.