A Motion to Reopen on New Facts

A motion to reopen is for facts the officer never had. It must state those facts and support them with affidavits or documentary evidence, and it goes to the office that made the latest decision, generally within thirty days. A motion that restates the original case more forcefully is dismissed rather than weighed.

What counts as a new fact

The regulation asks for the new facts to be provided in the reopened proceeding, supported by affidavits or other documentary evidence. Two elements sit in that sentence: something factual that was not part of the proceeding, and material proving it.

A fact does not have to have come into existence after the decision. A civil record that existed all along but could not be obtained inside a response window can qualify, provided the motion explains why it was unavailable then and available now. A change in circumstances after the decision certainly qualifies, provided the change bears on the ground the refusal actually rested on.

What does not qualify is a document that was already in the file, presented again with a better explanation. That is an argument about the existing record, which belongs in a motion to reconsider rather than a motion to reopen. Choosing the wrong container for a good argument is a common way to lose it, and the window rarely allows a second attempt in the correct one.

Motions against an abandonment denial

A case denied for failure to respond has its own rules, and they are narrower. Such a denial cannot be appealed, but a motion to reopen is available. The motion has to be filed with evidence that the decision was in error for one of three reasons.

The first is that the evidence requested was not material to the issue of eligibility. The second is that the required initial evidence was in fact submitted with the request, or that the request for evidence or appearance was complied with during the period allowed. The third is that the request was sent to an address other than the one on the filing or the notice of representation, or that a change of address or of representative had been notified in writing before the request issued.

Each of those is a factual claim requiring proof. The third, in particular, is won or lost on records: the written notification of the change, the date it was sent, and the address the agency used. That is why address updates should be kept as documents rather than remembered as events.

The second ground turns on the retained copy of the filing. Where the argument is that the evidence had already been supplied, the motion needs the page, the exhibit number and ideally the delivery record, set against what the decision says was missing. Without those, the claim is an assertion against a written finding, and written findings win that contest.

The first ground is the least used and the hardest. Arguing that the requested evidence was not material to eligibility means accepting that it was not supplied and contending that it never mattered. That works only where the element it addressed was already established by other means, which has to be demonstrated from the record rather than stated.

Assembling the motion

Start from the operative ground in the decision, identified in the way described in reading a denial notice and finding the real reason. State the new fact, attach what proves it, and explain in one paragraph why that fact defeats the ground. Anything not doing one of those three jobs can come out.

Structure the submission so the new fact is visible in the first paragraph. A reader who has to reach page four to discover what is new will read the whole thing as a complaint about the earlier decision. Naming the fact, the exhibit and the effect at the top makes the rest of the motion an elaboration rather than a search.

Documentary evidence is stronger than testimony, and the ordering rules apply here as they do at filing: primary evidence where it exists, secondary where it does not, sworn statements last. Where the new fact is the arrival of a record that was previously unavailable, the earlier unavailability should be evidenced too, using the approach in proving a record that does not exist or cannot be obtained.

Sworn statements have a defined and limited role, described in letters of support and what an officer does with them. They can carry a motion where documents genuinely cannot exist, and they weaken one where a document was simply not obtained in time.

Filing it correctly

Use the prescribed form, pay the required fee, and send it to the address published for that form rather than the address the original filing used. A motion rejected for an incorrect fee or a wrong address inside a thirty-day window is generally a motion lost, and there is rarely time to file a second one.

Everything intended to be considered has to be inside the submission. A motion that promises further material invites a decision on what has arrived, and the same single-submission logic described in answering with one complete package applies to a motion as much as to a response.

Where the case involved a representative who missed the window, or a notice that went to an address nobody was watching, the motion is as much about proving what happened as about the underlying facts, and that combination is worth putting to a motion to reopen filing counsel while the window is still open rather than after it closes.