By Richard T. Herman, Esq.
Herman Legal Group
Published August 18, 2026
The Board of Immigration Appeals issued a major new precedent on August 18, 2026 that changes how immigrants and their attorneys must evaluate repeat motions to reopen.
In Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026), Interim Decision #4235, the BIA held that the statutory rule generally allowing an immigrant one motion to reopen is a numerical limitation that cannot be overcome through equitable tolling. That is true, the Board held, even when the immigrant alleges ineffective assistance by a former attorney.
The decision draws an important distinction between two rules that are often discussed together. The familiar 90-day filing deadline for most motions to reopen may, in appropriate circumstances, be subject to equitable tolling. But according to M-M-L-J-, equitable tolling does not give a respondent another ordinary statutory motion after the one-motion allowance has already been used.
That makes the first motion to reopen more consequential—and potentially more dangerous to file incompletely—than ever before.
For immigrants who already have a final removal order, however, the decision should not be reduced to the statement that “you only get one chance.” Important statutory and regulatory reopening mechanisms remain, federal circuit law is not uniform, and the Board deliberately left one especially important question unresolved: what happens to qualifying motions based on changed country conditions?
This guide explains the decision, what it changes, what it does not change, and the issues immigration lawyers should examine before concluding that a case can—or cannot—be reopened.
Matter of M-M-L-J- holds that equitable tolling does not overcome the statutory numerical limit on motions to reopen.
Under INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7), a respondent generally may file one motion to reopen removal proceedings. The BIA concluded that this numerical restriction is fundamentally different from the 90-day filing deadline: a deadline controls when a motion can be filed, while the number bar controls how many ordinary statutory motions Congress permits.
The BIA therefore held that an immigrant cannot obtain a second ordinary motion to reopen merely by showing that equitable tolling would otherwise be justified, including because former counsel provided ineffective assistance.
But M-M-L-J- does not answer every reopening question. It does not eliminate regulatory exceptions, does not erase contrary controlling circuit precedent, and expressly does not decide whether its interpretation of the statutory number bar applies to motions seeking asylum or related protection based on changed country conditions.
| Issue | Answer after M-M-L-J- |
|---|---|
| Case | Matter of M-M-L-J-, 29 I&N Dec. 843 |
| Decision date | August 18, 2026 |
| Tribunal | Board of Immigration Appeals |
| Precedent? | Yes — published BIA precedent |
| General numerical rule | One motion to reopen |
| 90-day deadline equitably tollable? | Potentially, depending on applicable law |
| Number bar equitably tollable? | No under M-M-L-J- where contrary circuit law does not control |
| Ineffective assistance creates another motion? | No, according to the BIA |
| Changed-country-conditions motions? | Expressly left unresolved by M-M-L-J- |
| Joint motions? | Existing regulatory exception remains; M-M-L-J- did not eliminate it |
| Sua sponte reopening? | Still exists, but BIA treats it as extraordinary |
| Special battered-spouse/child/parent rule? | Express statutory exception remains |
| Immediate significance in Ohio? | High because the Sixth Circuit had not resolved number-bar tolling |
The respondent was a citizen of Jordan who entered the United States in 2010 as an F-1 student. He later failed to comply with the conditions of his student status and was placed in removal proceedings. After proceedings involving an application for special-rule cancellation of removal, the Immigration Judge ordered him removed, and the BIA dismissed his appeal in March 2020.
After the removal order became final, the respondent repeatedly sought reopening.
His first motion relied on a pending Form I-130 filed by his second wife, who was a lawful permanent resident. His second motion alleged ineffective assistance by former counsel. The BIA denied both in October 2020, including because the ineffective-assistance claim failed to satisfy applicable requirements and failed to establish prejudice. The Sixth Circuit later denied his petition for review.
The respondent later married a third wife, a naturalized U.S. citizen. He filed another motion to reopen based on the I-130 she filed for him. The BIA denied that third motion in October 2025.
He then filed the motion that produced Matter of M-M-L-J-—his fourth motion to reopen. He again relied on the I-130 filed by his U.S.-citizen wife and again alleged ineffective assistance of former counsel. Although he characterized his request as seeking the Board’s sua sponte reopening authority, the BIA concluded that the substance of his argument sought equitable tolling of the statutory time and number limitations.
The Board denied the motion.
To understand why the decision matters, it is important to separate two different restrictions.
Under federal law and EOIR regulations, an ordinary motion to reopen generally must be filed within 90 days of the final administrative removal order and, subject to exceptions, a respondent generally receives one motion to reopen. The current Immigration Court regulation at 8 C.F.R. § 1003.23 states both rules. EOIR’s current Immigration Court Practice Manual and BIA Practice Manual likewise explain the reopening process.
For a broader explanation of how reopening works, see Herman Legal Group’s guide to how to win a motion to reopen a removal order and our guide to filing a motion to reopen with the Immigration Court.
Before filing, however, lawyers must now ask two independent questions:
Is the motion timely?
and
Has the respondent already used the statutory motion to reopen?
M-M-L-J- makes clear that successfully answering the first question does not necessarily solve the second.
This distinction is the doctrinal heart of Matter of M-M-L-J-.
A statute of limitations tells a litigant when a claim must be brought. Equitable tolling traditionally can extend certain deadlines when extraordinary circumstances prevented timely filing and the litigant acted with the diligence required under the governing law.
A numerical limitation answers a different question: how many times may the litigant invoke the procedure?
The BIA relied heavily on the Fifth Circuit’s reasoning in Garcia Morin v. Bondi and the Supreme Court’s decision in Jones v. Hendrix. The Supreme Court distinguished ordinary statutes of limitations from restrictions on second or successive collateral proceedings, explaining that numerical restrictions embody a legislative judgment about balancing finality against error correction.
The BIA imported that reasoning into immigration reopening law.
In the Board’s view, the number limitation in INA § 240(c)(7)(A) is therefore not merely a procedural clock that equity can pause. It represents Congress’s substantive decision to limit repeat attempts to reopen completed removal proceedings.
That is why M-M-L-J- allows an important distinction:
A respondent may have a persuasive reason for filing late and still lack the right to file another ordinary motion because the one-motion allowance has already been used.
Yes—but M-M-L-J- significantly changes the analysis when a prior motion to reopen has already been filed.
Ineffective assistance of immigration counsel can still provide a basis for seeking reopening, and the doctrine associated with Matter of Lozada remains important. Herman Legal Group has a separate guide explaining ineffective assistance of counsel in immigration cases.
In fact, the BIA reinforced Lozada only weeks before M-M-L-J- in Matter of L-R-M-C- & V-A-M-M-, 29 I&N Dec. 757 (BIA 2026). The Board held there that a motion relying on ineffective assistance must include a copy of the disciplinary complaint and proof it was filed, or explain why no complaint was filed.
That recent precedent makes the combined message of the two 2026 decisions especially important.
A poorly prepared first motion can create two separate problems. Counsel must satisfy the substantive and procedural requirements of an ineffective-assistance claim, while also recognizing that filing the motion may consume the respondent’s ordinary statutory motion to reopen.
Under M-M-L-J-, ineffective assistance can potentially support equitable tolling of the time deadline, depending on controlling law and the facts. But ineffective assistance does not, under the Board’s new interpretation, equitably restore a statutory motion that has already been used.
That makes competent preparation of the first motion extraordinarily important.
Imagine that an immigrant receives a final removal order and later hires an attorney to seek reopening.
The attorney quickly files a motion based on one theory but fails to obtain the complete immigration record, overlooks prior-counsel ineffectiveness, fails to attach the correct relief application, neglects important evidence, or does not investigate another available reopening ground.
The motion is denied.
A second lawyer later discovers a much stronger case.
Before M-M-L-J-, that lawyer might have attempted to argue that equitable tolling should permit another motion because attorney misconduct prevented the respondent from meaningfully pursuing reopening the first time.
The BIA has now sharply restricted that argument.
For that reason, counsel should ordinarily investigate all plausible reopening theories before filing the first statutory motion. That may include reviewing the complete EOIR record, prior USCIS records, prior counsel’s file, immigration and criminal history, prior notices, family petitions, current eligibility for relief, possible Lozada issues, changed circumstances, changed country conditions, and the controlling law of the federal circuit.
The lesson of M-M-L-J- is not simply “file quickly.”
It is file strategically.
This may become the most litigated issue generated by Matter of M-M-L-J-.
The Board included an unusually important reservation in footnote 2. It noted that the respondent was not requesting asylum or related protection based on changed country conditions and therefore stated that it was not deciding whether the number bar applies to those motions.
That matters because the statutory and regulatory texts are not identical.
INA § 240(c)(7)(C)(ii) provides a changed-country-conditions exception to the ordinary time limitation for certain motions seeking asylum or related relief.
The regulations go further.
The current Immigration Court regulation, 8 C.F.R. § 1003.23(b)(4)(i), expressly states that the time and numerical limitations do not apply to qualifying motions based on material changed country conditions where the evidence was unavailable and could not have been discovered or presented previously.
The corresponding BIA reopening regulation, 8 C.F.R. § 1003.2, contains the Board-level reopening rules.
M-M-L-J- repeatedly reasons that Congress expressly authorized one statutory exception to the numerical cap—the special rule for certain battered spouses, children, and parents—and that courts and the Board should not invent additional equitable exceptions.
Yet the existing regulations expressly address changed-country-conditions reopening.
The Board avoided resolving that tension in M-M-L-J-.
Practitioners therefore should not read M-M-L-J- as holding that a respondent who previously filed a motion can never file a qualifying changed-country-conditions motion. The Board expressly declined to decide that issue.
Nor should practitioners assume the issue is necessarily settled in the respondent’s favor everywhere. Circuit law matters, and the statutory/regulatory interaction may now receive increased scrutiny.
This is an area to watch closely.
M-M-L-J- is important, but it is not a universal prohibition on every second filing that could result in reopening.
Several distinct mechanisms must still be analyzed.
INA § 240(c)(7)(C)(iv) contains a specific statutory rule for qualifying battered spouses, children, and parents.
The BIA expressly acknowledged that exception in the holding of M-M-L-J-.
Whether a particular respondent satisfies its requirements requires a separate statutory analysis.
As explained above, M-M-L-J- expressly reserved the number-bar question for qualifying changed-country-conditions motions. Current regulations continue to provide special treatment for qualifying asylum, withholding, and Convention Against Torture reopening based on materially changed country conditions.
The current Immigration Court regulation expressly provides that ordinary time and numerical limitations do not apply to a motion agreed upon by all parties and jointly filed. See 8 C.F.R. § 1003.23(b)(4)(iv).
Nothing in M-M-L-J- purports to eliminate the existing joint-motion mechanism.
That means a respondent who appears number-barred may still need counsel to evaluate whether DHS would have a basis to join reopening. DHS agreement is discretionary, so a joint motion is not something a respondent can demand. But after M-M-L-J-, the possibility of a joint motion may become even more strategically important.
Removal orders entered when a respondent failed to appear are governed by specialized rules.
The EOIR Practice Manual’s section on in absentia motions explains that a respondent may seek rescission within 180 days based on qualifying exceptional circumstances and may seek rescission at any time in specified circumstances involving lack of proper notice or custody through no fault of the respondent. Different numerical and stay rules apply.
An attorney analyzing a final in absentia order therefore should not mechanically apply the ordinary 90-day reopening framework.
Immigration Judges and the BIA retain regulatory authority to reopen proceedings on their own initiative.
But M-M-L-J- emphasized that this sua sponte authority is different from equitable tolling. The Board treats it as an extraordinary remedy for exceptional circumstances, not as a routine mechanism for avoiding the time or number rules.
That limitation has become especially important under recent precedent.
Not by itself.
The respondent in M-M-L-J- relied on an I-130 filed by his naturalized U.S.-citizen third wife. The existence of that family relationship did not permit him to evade the number bar, and the Board declined to reopen sua sponte.
That result follows another significant 2026 precedent, Matter of Yadav, 29 I&N Dec. 438 (BIA 2026). In Yadav, the BIA held that a valid marriage to a U.S. citizen entered after a removal order does not, standing alone, constitute an exceptional situation warranting sua sponte reopening.
This distinction is critical.
An I-130 determines whether a qualifying family relationship exists. It does not by itself:
Herman Legal Group explains the family-petition process in our Form I-130 guide, but a person with both an I-130 and a final removal order generally requires a separate analysis of the removal-order problem.
Another reason this decision requires careful analysis is that immigration law is not completely uniform across the federal circuits.
The BIA acknowledged that the Second, Seventh, and Ninth Circuits have previously applied equitable tolling to the number limitation “in some fashion.” It cited Zhao v. INS in the Second Circuit, Ramos-Braga v. Sessions in the Seventh Circuit, and Ray v. Gonzales in the Ninth Circuit.
The Board disagreed with the reasoning underlying those decisions, particularly after the Supreme Court’s later reasoning in Jones v. Hendrix. But the BIA also reaffirmed that it follows controlling federal circuit law in cases arising within that circuit.
The result is an important jurisdictional distinction.
The Fifth Circuit held in Garcia Morin v. Bondi that the numerical limitation cannot be equitably tolled. The BIA relied heavily on that reasoning in M-M-L-J-.
The BIA expressly stated that the Sixth Circuit had permitted equitable tolling of time-barred motions but had not decided whether equitable tolling applies to the numerical bar.
Because M-M-L-J- says its rule will govern in circuits that have not yet spoken, the new BIA rule is particularly important in the Sixth Circuit unless and until controlling Sixth Circuit law establishes otherwise.
The Board itself identified prior precedent in these circuits recognizing number-bar tolling in some form. Attorneys practicing there must examine the precise current circuit rule rather than simply assuming that M-M-L-J- supersedes binding court-of-appeals authority.
Do not assume.
The BIA announced that it will apply M-M-L-J- in circuits that have not yet spoken, making a current circuit-law review an essential part of analyzing any repeat motion to reopen.
The Sixth Circuit covers Ohio, Michigan, Kentucky, and Tennessee.
That gives the new decision immediate importance to removal cases arising from Immigration Courts within those states because the BIA specifically identified the Sixth Circuit as having not yet resolved whether the statutory number bar itself can be equitably tolled.
For respondents in Ohio—including cases involving the Cleveland Immigration Court—M-M-L-J- therefore should be part of the analysis before filing a second motion based on ineffective assistance or another equitable-tolling theory.
For information about local procedure and removal defense, see Herman Legal Group’s 2026 Cleveland Immigration Court Guide.
The same basic concern applies throughout the Sixth Circuit: practitioners must distinguish tolling of the 90-day filing deadline from tolling of the one-motion number bar.
Yes. M-M-L-J- is authoritative administrative precedent, but it is not the final word on what the federal statute means for every court.
The BIA itself acknowledges that controlling circuit precedent governs cases arising within that circuit.
Federal judicial review is also especially significant after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which ended Chevron deference and requires courts to exercise their independent judgment when interpreting statutes. Herman Legal Group has a detailed guide to Loper Bright and immigration law.
That does not mean M-M-L-J- will be overturned. The Fifth Circuit has already adopted substantially the same interpretation, and the BIA notes that the Supreme Court denied certiorari in Garcia Morin.
But the disagreement between the BIA’s reasoning and preexisting circuit authority creates a significant appellate question:
Is INA § 240(c)(7)(A)’s one-motion rule a substantive limitation that equity cannot alter, or a nonjurisdictional claim-processing rule that can sometimes be equitably tolled?
M-M-L-J- answers that question in favor of finality.
Some federal appellate precedent points the other way.
That legal conflict deserves close attention.
The Board also clarified an important conceptual point about sua sponte reopening.
Under 8 C.F.R. § 1003.23 and the corresponding Board regulation, Immigration Judges and the BIA possess authority to reopen certain cases on their own initiative.
But that authority is separate from equitable tolling.
The Board said that sua sponte reopening remains limited to exceptional circumstances and is not intended as a routine cure for filing defects or a method of circumventing the reopening regulations.
Recent 2026 precedent reinforces that restrictive approach. In addition to Yadav, the BIA held in Matter of Herrera-Nunez, 29 I&N Dec. 695 (BIA 2026) that equities acquired years after a removal order did not establish an exceptional situation warranting sua sponte reopening.
Practitioners therefore should not treat a request for sua sponte reopening as merely a second statutory motion under another name.
M-M-L-J- addresses motions to reopen, not motions to reconsider.
The distinction matters.
A motion to reopen generally asks the tribunal to consider new facts or evidence that were material and previously unavailable.
A motion to reconsider generally argues that the prior decision contained an error of fact or law or that a subsequent legal development changes the analysis. EOIR provides a separate practice-manual section on motions to reconsider.
The two procedural vehicles have different deadlines and numerical rules.
Before filing anything after a removal order, counsel should therefore determine whether the client’s problem is genuinely new evidence, an error in the existing decision, attorney misconduct, new eligibility, a changed legal rule, changed country conditions, an in absentia order, or some combination of these.
Choosing the wrong procedural vehicle can have lasting consequences.
The answer depends on which tribunal has administrative jurisdiction over the case.
As a general rule, if the Immigration Judge entered the decision and no BIA appeal transferred jurisdiction, the motion is filed with the Immigration Court that has administrative control of the record. If the BIA decided the case and retains the relevant jurisdiction, the motion generally must be filed with the Board.
EOIR’s current Immigration Court filing guidance and BIA filing guidance explain important jurisdictional variations, including what happens after remand or when an appeal was dismissed as untimely.
HLG’s motion-to-reopen filing guide provides additional practical guidance.
This jurisdiction question should be resolved before filing because sending the motion to the wrong tribunal does not necessarily preserve a deadline.
Usually, no.
The current Immigration Court regulation states that filing an ordinary motion to reopen generally does not automatically stay execution of the removal order. A respondent may need to seek a separate stay.
Special rules exist for certain proceedings, including some in absentia reopening situations. EOIR’s current guidance describes those exceptions and the circumstances in which an automatic stay exists.
For a person who is detained or facing imminent removal, this distinction can be critical. A legally strong motion to reopen and a legally sufficient strategy to prevent removal while the motion is pending are not necessarily the same thing.
The decision changes the risk calculation before the first motion is filed.
Counsel should ordinarily determine:
The most important point is that the first statutory motion should be treated as a scarce procedural asset.
Because this decision is new, overly broad summaries are likely to appear.
M-M-L-J- does not hold that:
Those distinctions are central to understanding what the case actually decided.
Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026) is a published Board of Immigration Appeals precedent issued August 18, 2026. It holds that equitable tolling does not overcome the statutory numerical limitation on motions to reopen in jurisdictions where contrary controlling circuit precedent does not govern.
The general statutory rule permits one motion to reopen, subject to specialized statutory and regulatory provisions. M-M-L-J- holds that an immigrant does not receive one ordinary statutory motion before the Immigration Court and another before the BIA.
Yes. The ordinary deadline is generally 90 days after the final administrative removal order, although statutory, regulatory, and equitable exceptions may apply.
Potentially. M-M-L-J- specifically distinguishes equitable tolling of the filing deadline from tolling of the number bar. Whether a deadline is tolled depends on applicable circuit law and the facts of the particular case.
Under M-M-L-J-, not in a jurisdiction where the BIA’s new interpretation controls. The Board held that the number limitation is not subject to equitable tolling. Contrary controlling circuit precedent may require a different analysis.
Ineffective assistance may still support reopening and may support equitable tolling of a filing deadline under applicable law, but M-M-L-J- says ineffective assistance does not itself equitably overcome the one-motion statutory number bar.
In addition to the traditional Matter of Lozada framework, the BIA’s July 2026 decision in Matter of L-R-M-C- & V-A-M-M- requires the motion to include a copy of the disciplinary complaint and proof it was filed, or an explanation for why no bar complaint was filed.
The BIA expressly did not decide that question. Current regulations state that qualifying changed-country-conditions motions are exempt from the ordinary time and numerical limitations, making this an important area for future litigation and circuit-specific analysis.
Current EOIR regulations provide a separate exception for qualifying jointly filed motions. DHS must agree; the respondent cannot unilaterally create a joint motion.
Not by itself. M-M-L-J- involved an I-130 filed by the respondent’s naturalized U.S.-citizen wife, but the Board still denied reopening. Matter of Yadav separately holds that a post-removal-order marriage to a U.S. citizen does not itself create the exceptional situation required for sua sponte reopening.
No. An approved I-130 establishes a qualifying family relationship; it does not by itself cancel or reopen a removal order.
Yes, the BIA and Immigration Judges retain regulatory sua sponte authority, but current BIA precedent treats that authority as extraordinary and not as a general workaround for time or numerical restrictions.
Yes, it is particularly important in Ohio. The BIA expressly said that the Sixth Circuit had not resolved whether equitable tolling applies to the numerical bar, and the Board announced that its rule applies in circuits that have not yet spoken on the issue.
The analysis is more complicated. The BIA acknowledged prior cases in each of those circuits applying equitable tolling to the number bar in some fashion. Current controlling circuit law must therefore be researched before determining whether M-M-L-J- controls a particular case.
Generally no. Ordinary motions to reopen do not automatically stay removal, although specialized exceptions exist and a stay can sometimes be requested.
No. Matter of M-M-L-J- concerns reopening removal proceedings under the INA and EOIR’s Immigration Court/BIA framework. USCIS motions and appeals operate under a separate administrative framework.
M-M-L-J- is ultimately a decision about finality.
The Board adopted the view that Congress gave noncitizens a meaningful opportunity to seek reopening but deliberately placed a numerical limit on repeat attempts to reopen completed removal proceedings. By characterizing the one-motion rule as substantive rather than simply procedural, the BIA substantially reduces the ability to use equitable tolling as a remedy after that opportunity has already been consumed.
That matters most in the hardest cases: where an earlier lawyer made serious mistakes, where new family-based eligibility later develops, where an immigrant acquires an approved I-130 after a final removal order, or where a later attorney discovers a better reopening argument after another lawyer has already filed an unsuccessful motion.
But the case also leaves substantial questions alive.
Existing regulations continue to recognize specialized reopening mechanisms. Federal circuits do not speak with one voice. The changed-country-conditions question was expressly reserved. Joint motions remain in the regulations. Sua sponte authority remains, even though the BIA increasingly construes it narrowly.
For practitioners, that means a conclusion that a case is “number-barred” should often be the beginning of the analysis rather than the end.
Matter of M-M-L-J- makes the first motion to reopen more important than ever.
The BIA has held that equitable tolling cannot transform the statutory one-motion allowance into a second ordinary motion merely because the respondent suffered ineffective assistance or otherwise has an equitable argument for reopening.
But the decision is not a universal prohibition on subsequent reopening.
Attorneys must separately analyze controlling circuit law, changed country conditions, the special battered-spouse/child/parent provisions, in absentia rules, joint motions, sua sponte authority, motions to reconsider, jurisdiction, and any need for a stay of removal.
And because M-M-L-J- itself leaves one of the most important issues unresolved—how its statutory reasoning interacts with qualifying changed-country-conditions motions—the law in this area is likely to continue developing.
For anyone with a final removal order, especially someone who has already filed a motion to reopen, the complete procedural history should be reviewed before another filing is made.
Herman Legal Group represents immigrants in removal proceedings, BIA matters, motions to reopen, and complex post-order immigration cases. To discuss a particular matter, schedule a consultation with Herman Legal Group.
This article provides general information about U.S. immigration law and is not legal advice. Motions to reopen are highly fact-specific, and the applicable rules can depend on the procedural history, type of removal order, federal circuit, current statutes and regulations, and the relief sought.
