Can I file a motion to reconsider and add new information?

A motion to reconsider ordinarily cannot be used to introduce new information or evidence. Under 8 C.F.R. § 1003.23(b)(1) and the EOIR Policy Manual, a motion to reconsider asks the Immigration Judge to re‑examine a decision because of an error of law or fact, or because the law has changed, and it must be based solely on the existing record.[1] If new evidence or facts have arisen, the appropriate vehicle is usually a motion to reopen, not a motion to reconsider.[2]

IRAC Analysis

Issue: Whether a party may file a motion to reconsider an order to pretermit and include new information when the prior motion was unopposed.

Rule: Per 8 C.F.R. § 1003.23(b)(1) and the EOIR Policy Manual, Chapter 4.8, a motion to reconsider must:

• Identify specific errors of fact or law in the prior decision; and
• Be based on the same record previously before the Immigration Judge.

A motion to reopen, by contrast, is intended for introducing “new facts” and must be supported by affidavits or other evidence that was previously unavailable and material to the outcome. See 8 C.F.R. § 1003.23(b)(3).[1][2]

Application:
If new evidence has come to light after an order to pretermit, the appropriate filing would be a motion to reopen, not a motion to reconsider. Even if the prior motion was unopposed, the form of relief sought determines the procedural vehicle — introduction of new information belongs in a motion to reopen. The Immigration Judge, however, has discretion under 8 C.F.R. § 1003.23(b)(1) to treat a mislabeled motion as the correct one depending on its substance.

If the motion seeks only to argue that the judge made a legal or factual error in the prior order (for example, misinterpreting eligibility law), a motion to reconsider would be proper. But if the goal is to supplement the record with newly discovered or previously unavailable evidence, that evidence can only be considered through a motion to reopen, filed within 90 days of the order, unless an exception applies.

Conclusion:
You may file a motion to reconsider an order to pretermit only to correct errors in law or fact within the existing record. To add new information, you must instead file a motion to reopen. The fact that the prior motion was unopposed does not change these procedural rules or allow new evidence in a motion to reconsider.

Federal Comparison:
Similarly, Fed. R. Civ. P. 59(e) and Fed. R. Civ. P. 60(b) distinguish between motions to alter or amend a judgment (reconsideration) and motions for relief based on new evidence or mistake (reopening). The same logic applies in immigration proceedings.[3][4]