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Motions

Motions in EOIR, Immigration Court.

Motions Generally

MOTIONS IN IMMIGRATION COURT

Motions to Reopen & Motions to Reconsider are NOT included in this motions section since those are motions that are filed after a final decision. Motions to Reopen and Reconsider are included in the Appeals & Post Order Relief section, which seemed more appropriate.

Motions must state with particularity the grounds on which the motion is based. In addition, motions must identify the relief or remedy sought by the filing party.

Immigration Court Practice Manual (ICPM)

(e) Evidence. — Statements made in a motion are not evidence. If a motion is based upon evidence that was not made part of the record by the Immigration Judge, that evidence should be submitted with the motion. Such evidence may include sworn affidavits, declarations under the penalties of perjury, and documentary evidence.

The Immigration Court will not suspend or delay adjudication of a motion pending the receipt of supplemental evidence. All evidence submitted with a motion must comply with the requirements of Chapter 3.3 (Documents).

(h) Visa Petitions - If a motion is based on an application for adjustment of status and there is an underlying visa petition that has been approved, a copy of the visa petition and the approval notice should accompany the motion.  When a petition is subject to visa availability, evidence that a visa is immediately available should also accompany the motion (e.g., a copy of the State Department’s Visa Bulletin reflecting that the priority date is “current”).

If a motion is based on adjustment of status and the underlying visa petition has not yet been adjudicated, a copy of that visa petition, all supporting documents, and the filing receipt (Form I-797) should accompany the motion.

Parties should note that, in certain instances, an approved visa petition is required for motions based on adjustment of status.  See, e.g., Matter of H‑A‑, 22 I&N Dec. 728 (BIA 1999), modified by Matter of Velarde, 23 I&N Dec. 253 (BIA 2002).

Filing fees for visa petitions are not paid to the Immigration Court and should not accompany the motion.  The filing fee for a visa petition is submitted to DHS when the petition is filed with DHS.


OPPOSITION TO MOTIONS

General Opposition to a Motion

Matter of Lamus, 25 I&N Dec. 61, 65 (BIA 2009) (concluding that a party’s opposition to a motion to reopen, “in and of itself, should [not] be dispositive of the motion without regard to the merit of that opposition”); Matter of Hashmi, 24 I&N Dec. 785, 791 (BIA 2009) (noting that the DHS’s “unsupported opposition” to a continuance “does not carry much weight”).

The Board in Matter of Avetisyan, determined for the first time that Immigration Judges and the Board have the authority to administratively close a case when appropriate, even if a party opposes it. Matter of Avetisyan, 25 I&N Dec. 688, 690-694 (BIA 2012). Matter of Avetisyan does not list court resources as a factor to consider in evaluating whether administrative closure is appropriate. In a similar context, we held that “[c]ompliance with . . . case completion goals . . . is not a proper factor in deciding a continuance request.” Matter of Hashmi, 24 I&N Dec. at 793–94.

Matter of C-B-, 25 I&N Dec. 888, 890 (BIA 2012) (noting that docket efficiency does not override an alien’s “invocation of procedural rights and privileges”).

Respondent's Right to Oppose Administrative Closure

To the extent that the Immigration Judge concluded that this matter does not present an “actual case[] in dispute,” we do not agree. An alien in removal proceedings has a right to seek asylum and related relief from persecution. See Matter of E-F-H-L-, 26 I&N Dec. 319, 321–23 (BIA 2014) (holding that an alien in removal proceedings generally has a right to a full evidentiary hearing on applications for relief from persecution); 8 C.F.R. § 1240.11(c)(3) (2016). Therefore, assuming that his application was properly filed and that he is eligible for the relief sought, the respondent has a right to a hearing on the merits of his claim. If his application is successful, he may be eligible for lawful status in the United States, while administrative closure provides him no legal status. This is not a case where an alien has filed for asylum with no intent to proceed on the application to a resolution.

MOTION LIMITS

Pre-decision motions (Motions filed during litigation and prior to the Judge's decision) are not number limited. You can file multiple motions for the same request so long as they are not frivolous. Pre-decision motions are time limited though. See the Time Limits Section for more information.

Post-decision motions (MTRO & MTRC) are time and number limited and discussed in more detail in the Motions to Reopen section.


MOTION BRIEFS

A brief is not required in support of a motion. However, if a brief is filed, it should accompany the motion. See 8 C.F.R. § 1003.23(b)(1)(ii). In general, motion briefs should comply with the requirements of Chapters 3.3 (Documents) and 4.19 (Pre-Hearing Briefs). A brief filed in opposition to a motion must comply with the filing deadlines for responses. See Chapter 3.1(b) (Timing of submissions).


CONTENTS OF ALL PRE-DECISION MOTIONS

(1) Form EOIR-28 (if required)
(2) Cover page (w/ the name of every respondent)
(3) If applicable, fee receipt (stapled to the filing) or motion for a fee waiver
(4) The filing
(5) Supporting documentation (if any) with table of contents
(6) If a motion, a proposed order for the Immigration Judge’s signature
(7) Proof of service

Motions must always be paginated by consecutive numbers placed at the bottom center or bottom right hand corner of each page. Whenever proposed exhibits or supporting documents are submitted, the filing party should include a table of contents with page numbers identified. See Appendix P (Sample Table of Contents).

* MOTIONS MUST HAVE COVER PAGE & CAPTION LIKE ALL OTHER SUBMISSIONS TO EOIR.

* MUST COMPLY WITH ALL OTHER REQUIREMENTS FOR AN EOIR SUBMISSION (single sided, white paper,


MULTIPLE MOTIONS

(Motions Requesting that the Court Do More Than One Thing)

Multiple Motions When multiple motions are filed, the motions should be accompanied by a cover letter listing the separate motions. In addition, each motion must include a cover page and comply with the deadlines and requirements for filing. See Chapter 5.2(b) (Form), Appendix F (Sample Cover Page).

Parties are strongly discouraged from filing compound motions, which are motions that combine two separate requests. Many Judges will deny or reject compound motions.

Further, time and number limits apply to motions even when submitted as part of a compound motion. For example, if a motion seeks both reopening and reconsideration, and is filed more than 30 days after the Immigration Judge’s decision (the deadline for reconsideration) but within 90 days of that decision (the deadline for reopening), the portion that seeks reconsideration is considered untimely.

SPECIFIC MOTIONS

(a) Motion to continue. — A request for a continuance of any hearing should be made by written motion. Oral motions to continue are discouraged. The motion should set forth in detail the reasons for the request and, if appropriate, be supported by evidence. See Chapter 5.2(e) (Evidence). It should also include the date and time of the hearing, as well as preferred dates that the party is available to re-schedule the hearing. However, parties should be mindful that the Immigration Court retains discretion to schedule continued cases on dates that the court deems appropriate.


The motion should be filed with a cover page labeled “MOTION TO CONTINUE” and comply with the deadlines and requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

The filing of a motion to continue does not excuse the appearance of an alien or representative at any scheduled hearing. Therefore, until the motion is granted, parties must appear at all hearings as originally scheduled.

(b) Motion to advance. — A request to advance a hearing date (move the hearing to an earlier date) should be made by written motion. Motions to advance are disfavored. Examples of circumstances under which a hearing date might be advanced include:

A motion to advance should completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced.

The motion should be filed with a cover page labeled “MOTION TO ADVANCE” and

comply with the deadlines and requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

(c) Motion to change venue. — A request to change venue should be made by written motion. The motion should be supported by documentary evidence. See Chapter 5.2(e) (Evidence). The motion should contain the following information: o the date and time of the next scheduled hearing o an admission or denial of the factual allegations and charge(s) in the Notice to Appear (Form I-862) o a designation or refusal to designate a country of removal o if the alien will be requesting relief from removal, a description of the basis for eligibility o a fixed street address where the alien may be reached for further hearing notification o if the address at which the alien is receiving mail has changed, a properly completed Alien’s Change of Address Form (Form EOIR-33/IC)

o a detailed explanation of the reasons for the request See generally Matter of Rahman, 20 I&N Dec. 480 (BIA 1992), 8 C.F.R. § 1003.20. The motion should be filed with a cover page labeled “MOTION TO CHANGE VENUE,” accompanied by a proposed order for change of venue, and comply with the deadlines and requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

The filing of a motion to change venue does not excuse the appearance of an alien or representative at any scheduled hearing. Therefore, until the motion is granted, parties must appear at all hearings as originally scheduled.

(d) Motion for substitution of counsel. — See Chapter 2.3(i)(Change in representation).

(e) Motion to withdraw as counsel. — See Chapter 2.3(i) (Change in representation).

(f) Motion for extension. — See Chapter 3.1(c)(iv) (Motions for extensions of filing deadlines).

(g) Motion to accept an untimely filing. — See Chapter 3.1(d)(ii) (Untimely filings).

(h) Motion for closed hearing. — See Chapter 4.9 (Public Access).

(i) Motion to waive representative’s appearance. — See Chapter 4.15 (Master Calendar Hearing).

(j) Motion to waive respondent’s appearance. — See Chapter 4.15 (Master Calendar Hearing).

(k) Motion to permit telephonic appearance. — See Chapter 4.15 (Master Calendar Hearing).

(l) Motion to request an interpreter. — See Chapter 4.15 (Master Calendar Hearing).

(m) Motion for video testimony. — See Chapter 4.15 (Master Calendar Hearing).

(n) Motion to present telephonic testimony. — See Chapter 4.15 (Master Calendar Hearing). (o) Motion for subpoena. — See Chapter 4.20 (Subpoenas).

(p) Motion for consolidation. — See Chapter 4.21 (Combining and Separating Cases). (q) Motion for severance. — See Chapter 4.21 (Combining and Separating Cases).

(r) Motion to stay removal or deportation. — See Chapter 8 (Stays).

(s) Motions in disciplinary proceedings. — Motions in proceedings involving the discipline of an attorney or representative are discussed in Chapter 10 (Discipline of Practitioners).

(t) Motion to recalendar. — When proceedings have been administratively closed and a party wishes to reopen the proceedings, the proper motion is a motion to recalendar, not a motion to reopen. A motion to recalendar should provide the date and the reason the case was closed. If available, a copy of the closure order should be attached to the motion. The motion should be filed with a cover page labeled “MOTION TO RECALENDAR” and comply with the requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page). To ensure that the Immigration Court has the alien’s current address, an Alien’s Change of Address Form (EOIR-33/IC) should be filed with the motion. Motions to recalendar are not subject to time and number restrictions.

(u) Motion to amend. — The Immigration Judge entertains motions to amend previous filings in limited situations (e.g., to correct a clerical error in a filing). The motion should clearly articulate what needs to be corrected in the previous filing. The filing of a motion to amend does not affect any existing motion deadlines. The motion should be filed with a cover page labeled “MOTION TO AMEND” and comply with the requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

(v) Other types of motions. — The Immigration Court entertains other types of motions as appropriate to the facts and law of each particular case, provided that the motion is timely, is properly filed, is clearly captioned, and complies with the general motion requirements. See Chapters 5.2 (Filing a Motion), Appendix F (Sample Cover Page).


TIME LIMITS

Untimely filings are treated as described in subsection (d)(ii), below. Failure to timely respond to a motion may result in the motion being deemed unopposed. See Chapter 5.12 (Response to Motion). Immigration Judges may deny a motion before the close of the response period without waiting for a response from the opposing party. See Chapter 5.12 (Response to Motion). “Day” is constructed as described in subsection (c), below. (i) Master calendar hearings. —

(A) Unrepresented, non-detained aliens. — For master calendar hearings involving unrepresented, non-detained aliens, filings must be submitted at least fifteen (15) days in advance of the hearing if requesting a ruling at or prior to the hearing. Otherwise, filings may be made either in advance of the hearing or in open court during the hearing.

When a filing is submitted at least fifteen days prior to a master calendar hearing, the response must be submitted within ten (10) days after the original filing with the Immigration Court. If a filing is submitted less than fifteen (15) days prior to a master calendar hearing, the response may be presented at the master calendar hearing, either orally or in writing.

(B) Represented, non-detained aliens. — In proceedings in which the Form EOIR-28 is filed at least fifteen (15) days prior to a master calendar hearing, the presence of the respondent and his or her representative at the hearing will be waived and the hearing vacated. The Immigration Judge will issue a scheduling order that establishes the deadlines by which the parties must submit written pleadings, any evidence related to the charges of removability, and any application(s) for relief or protection sought by the respondent.

In proceedings in which the Form EOIR-28 is filed less than fifteen (15) days prior to the master calendar hearing, or at the master calendar hearing itself, the representative and the respondent must appear at the scheduled hearing. If needed, the Immigration Judge will issue a scheduling order at the master calendar hearing.


Cases not yet filed with the Immigration Court

Except for requests for bond redetermination proceedings, the Immigration Court cannot entertain motions if a charging document (i.e., a Notice to Appear) has not been filed with the court. See Chapters 4.2 (Commencement of Removal Proceedings), 9.3(b) (Jurisdiction).


FILING FEES FOR MOTIONS

When Required

The following motions require a filing fee:

o a motion to reopen (except a motion that is based exclusively on a claim for asylum)

o a motion to reconsider (except a motion that is based on an underlying claim for asylum)

8 C.F.R. §§ 1003.23(b)(1), 1003.24, 1103.7. For purposes of determining filing fee requirements, the term “asylum” here includes withholding of removal (“restriction on removal”), withholding of deportation, and claims under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

Where a filing fee is required, the filing fee must be paid in advance to the Department of Homeland Security and the fee receipt must be submitted with the motion. If a filing party is unable to pay the fee, he or she should request that the fee be waived. See subsection (d), below.

When NOT required. —

The following motions do not require a filing fee: o a motion to reopen that is based exclusively on a claim for asylum

o a motion to reconsider that is based on an underlying a claim for asylum

o a motion filed while proceedings are pending before the Immigration Court

o a motion requesting only a stay of removal, deportation, or exclusion o a motion to recalendar

o any motion filed by the Department of Homeland Security o a motion that is agreed upon by all parties and is jointly filed (“joint motion”)

o a motion to reopen a removal order entered in absentia if the motion is filed under INA § 240(b)(5)(C)(ii)

o a motion to reopen a deportation order entered in absentia if the motion is filed under INA § 242B(c)(3)(B), as it existed prior to April 1, 1997

o a motion filed under law, regulation, or directive that specifically does not require a filing fee 8 C.F.R. §§ 1003.23(b)(1), 1003.24, 1103.7.

For purposes of determining filing fee requirements, the term “asylum” here includes withholding of removal (“restriction on removal”), withholding of deportation, and claims under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.


RESPONDING TO MOTIONS

Responses to motions must comply with the deadlines and requirements for filing. See 8 C.F.R. § 1003.23(a), Chapter 3 (Filing with the Immigration Court). A motion is deemed unopposed unless timely response is made. Parties should note that unopposed motions are not necessarily granted. Immigration Judges may deny a motion before the close of the response period without waiting for a response from the opposing party if the motion does not comply with the applicable legal requirements.

Examples include:

o Denial of a motion to withdraw as counsel of record that does not contain a statement that the attorney has notified the respondent of the request to withdraw as counsel or, if the respondent could not be notified, an explanation of the efforts made to notify the respondent of the request. See Chapter 2.3(i)(ii) (Withdrawal of counsel).

o Denial of a motion to change venue that does not identify the fixed address where the respondent may be reached for further hearing notification. See Chapter 5.10(c) (Motion to change venue), 8 C.F.R. § 1003.20(b).

Motion to Continue

REGULATIONS

A continuance may be granted for good cause pursuant to 8 C.F.R. §§ 1003.29, 1003.10(b).

Two regulations authorize continuances in removal cases: 8 C.F.R. § 1003.29, which permits IJs to continue a hearing for good cause shown, and 8 C.F.R. § 1240.6, which permits IJs to grant a “reasonable adjournment at his or her own instance” or for good cause shown by a requesting party. Though the regulations do not provide guidance as to what factors constitute “good cause” for a continuance, the BIA has laid out specific factors that an IJ must consider in evaluating whether “good cause” exists where the respondent is pursuing collateral relief.

CASE LAW

Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018)

Matter of Hashmi, 24 I&N Dec. 785, 790-91 (BIA 2009) (family-based petition)

Matter of Rajah, 25 I&N Dec. 127, 135-36 (BIA 2009) (an employment petition)

Matter of Sanchez Sosa, 25 I&N Dec. 807, 812-13 (BIA 2012) (U visa petition)


Practice Advisory for Matter of L-A-B-R

https://www.cliniclegal.org/resources/removal-proceedings/practice-advisory-matter-l-b-r-27-dec-405-ag-2018

Motion for Continuance Practice Advisory

Matter of L-A-B-R- and continuances to pursue collateral matters On August 16, 2018, Attorney General Sessions issued a decision in Matter of L-A-B-R-, a case addressing when “good cause” exists to grant a continuance for a respondent to pursue a collateral proceeding. The decision does not overturn previous case law establishing a multifactor test for determining “good cause,” but cautions against “unjustified continuances,” describing them as a “significant and recurring problem” and the L-A-B-R- decision as necessary guidance to protect against “abuse” of continuances. L-A-B-R emphasizes the holding in Matter of Hashmi, that an immigration judge should rely primarily on two factors in making a good cause determination:

Two Primary Factors for Continuances:

1) the likelihood the respondent will receive the collateral relief sought, and

2) whether the relief will materially affect the outcome of the removal proceedings.

Other factors to be considered in a decision to grant or deny a motion for continuance include:

1) the respondent’s diligence in seeking collateral relief;
2) DHS’s position on the motion;
3) administrative efficiency;
4) the length of continuance requested;
5) the number of hearings held and continuances granted previously; and
6) the timing of the continuance motion. Though the immigration judge must use discretion in balancing the relevant factors supporting a continuance grant, L-A-B-R states that due diligence may be absent when the respondent intends to pursue collateral relief at a future date or “appears to have unreasonably delayed filing for collateral relief” until just prior to a hearing. If there was a diligent good faith effort to proceed, however, the respondent will meet this prong. In addition, under L-A-B-R- DHS’ decision to consent, oppose or fail to take a position on a continuance motion should not be dispositive. Citing the 2017 EOIR memo, L-A-B-R emphasizes efficiency in the good cause analysis. Immigration judges’ interpretation of this part of the decision will be critical in how L-A-B-R.

See Administrative Closure pursuant to  8 CFR 1003.18 for what is essentially an indefinite continuance.

Motion to Administratively Close

Quick Summary

The Attorney General overruled Matter of Castro-Tum in Matter of Cruz-Valdez in 2021. Although Matter of Cruz-Valdez did not, in and of itself, establish a new administrative closure scheme, it restored the Board’s earlier decisions in Matter of Avetisyan and Matter of W-Y-U- to the status of binding precedents and instructed immigration judges to apply the administrative closure rules from those cases. Matter of Avetisyan and Matter of W-Y-U- are detailed below.

Admin Closure Factors

In sum the Board instructed immigration judges to consider the following factors in deciding whether to grant administrative closure in a given case:

  1. the reason it is sought
  2. the basis for any opposition <- The most important factor
  3. the likelihood the respondent will succeed (on any pending relief)
  4. duration
  5. responsibility of either party (if anyone contributed to current or anticipated delay) and
  6. the impact it will have on the outcome of the proceedings.


BIA Precedent and the Rules Have Been in Flux

Matter of W-Y-U- provided specific guidance to immigration judges on adjudicating motions for administrative closure where one party (most often the government) objects. In such cases, immigration judges should consider whether the opposing party provided a persuasive reason to proceed to resolving the removal proceedings on the merits.

Because Matter of S-O-G- & F-D-B- closely followed Matter of Castro-Tum, it was placed on shaky ground by the decision to overrule the latter. Moreover, one could argue it was effectively, if not expressly, abrogated by the direction in Matter of Cruz-Valdez to follow Matter of Avetisyan and Matter of W-Y-U with regard to motions to administratively close proceedings. It would be difficult to say the least to try to reconcile Matter of S-O-G- & F-D-B- with Avetisyan and W-Y-U-.

In Matter of Coronado Acevedo, Attorney General Garland made what was arguably implicitly clear in Matter of Cruz Valdez explicit and overruled Matter of S-O-G- & F-D-B-. While Matter of S-O-G- & F-D-B- is not identical to Matter of Castro-Tum, the Attorney General explained that its analysis followed directly from the central premises of the latter.

Admin Closure

Administrative Closure is a procedural mechanism in which the Court may take a case off of the the calendar for an indefinite period of time allowing for either party (DHS or Respondent) to request that the Court return the case to the Court's calendar at any time. It works as a continuance with no return date or return date to be set later once the parties are prepared for the case to be returned to the Court's calendar.

Administrative Closure is extremely useful in situations where a Respondent has a pending visa petition or waiver before USCIS. The proceedings can be administratively closed while USCIS adjudicates that petition/application and only scheduled for another hearing after it has either been approved or denied. Since neither party nor the judge can accurately predict how long it will take USCIS to adjudicate it administrative closure avoids the need for parties to return to court repeatedly just to continue the proceedings multiple times to achieve the same result.

Admin Closure is Particularly Useful in the Context of SIJS Approvals. If DHS opposes administrative closure because of the SIJS adjustment backlog, practitioners can use Matter of W-Y-U- to argue that DHS has not provided a persuasive reason for its opposition and that any reliance on its current enforcement priorities is irrelevant. Note that even before the Matter of W-Y-U- decision, the BIA, in unpublished decisions, has found administrative closure appropriate for children with approved SIJS petitions awaiting visa availability. See, e.g, J-A-A-G-, AXXX XXX 844 (BIA Mar. 8, 2017); A-L-M-D-, AXXX XXX 671 (BIA Oct. 26, 2016).

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

Summary of Matter of W-Y-U-

In Matter of W-Y-U-, the pro se respondent, a Chinese citizen, filed for asylum with the immigration court. The Department of Homeland Security asked the court to administratively close the respondent’s removal proceedings. The immigration court granted administrative closure over the respondent’s opposition, and the respondent then filed an interlocutory appeal to the BIA. He challenged the administrative closure of his case because he wanted to have his asylum claim heard by the immigration judge.

The BIA sustained the appeal and vacated the judge’s administrative closure decision. In its ruling, the BIA noted the following:

BIA's Full Decision at https://www.justice.gov/eoir/page/file/958526/dl

Factors Considered for Motion to Administratively Close

Matter of W-Y-U- is an important expansion of an earlier BIA precedent decision on administrative closure, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). In that case, the BIA ruled that immigration courts can grant administrative closure “in the exercise of independent judgment and discretion” even where one party opposes and overruled prior precedent on this issue. Matter of Avetisyan held that in deciding whether to administratively close proceedings, courts should weigh relevant factors, including but not limited to the following:

“(1) the reason administrative closure is sought;

“(2) the basis for any opposition to administrative closure;

“(3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings;

“(4) the anticipated duration of the closure;

“(5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and

“(6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared. . . ”

Id. at 696. Matter of W-Y-U- holds that when a court is considering a contested request for administrative closure, the most important of these factors is whether the party opposing closure has provided a persuasive reason for the case to proceed. It also clarifies that DHS’s position on how the respondent falls within its current enforcement priorities is not a factor that immigration courts can consider.

While Matter of Avetisyan provides a list of factors to be considered, we now clarify that decision and hold that the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.


Important Public Interest in Finality of Immigration Proceedings

There is an important public interest in the finality of immigration proceedings. INS v. Abudu, 485 U.S. 94, 107 (1988) (“There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.”). That interest is particularly clear here, since it is the respondent who is opposed to continuing administrative closure for an indefinite period and requests that his case proceed to a conclusion on the merits. An unreasonable delay in the resolution of the proceedings may operate to the detriment of aliens by preventing them from obtaining relief that can provide lawful status or, on the other hand, it may “thwart the operation of statutes providing for removal” by allowing aliens to remain indefinitely in the United States without legal status. Ukpabi v. Mukasey, 525 F.3d 403, 408 (6th Cir. 2008) (discussing the competing interests to be considered in evaluating a motion for continuance). The considerations regarding administrative closure should apply equally to respondents and the DHS.

Admin Closure, a Tool for Immigration Court.

Practice Advisory

AG Eliminates Precedent Restricting Administrative Closure

On November 17, 2022, U.S. Attorney General Merrick Garland published an immigration precedent decision in the Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022) [PDF version]. The Attorney General overruled a prior Attorney General precedent, Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) [PDF version], which had been published by former Attorney General Jeff Sessions in 2018. Matter of S-O-G- & F-D-B- limited the circumstances in which an immigration judge could dismiss or terminate removal proceedings through administrative closure. This decision generally disfavored alien respondents by precluding immigration judges from dismissing proceedings to allow them to obtain status or other forms of relief without departing or being removed from the United States. Matter of Coronado Acevedo is generally favorable to aliens in proceedings insofar as it returns the understanding of the immigration judge’s authority to dismiss proceedings to what it was before the Attorney General decision in Matter of S-O-G- & F-D-B- and Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version], the latter of which was previously vacated by Attorney General Garland in Matter of Cruz-Valdez, 27 I&N Dec. 271 (A.G. 2018) [PDF version].


Motion to Terminate

Motion to Terminate

As the Attorney General has stated, and as provided in the INA and Regulations, “[i]mmigration judges . . . possess the authority to terminate removal proceedings where the charges of removability against a respondent have not been sustained.” See Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018); see INA § 240(c)(1)(A).  The Immigration Judge “shall decide whether the alien is removable”); 8 C.F.R. § 1240.12(c) and may  “direct . . . the termination of the proceedings”). Termination is proper “‘when the DHS cannot sustain the charges [of removability] or in other specific circumstances consistent with the law and applicable regulations.’” See Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 169 (BIA 2017) (quoting Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012)) (alterations in original). Because the single charge of removability can no longer be sustained, this Court should terminate proceedings.

This honorable Court has the authority to terminate these removal proceedings over the objection of the Department of Homeland Security. The Attorney General expressly addressed this in Matter of Coronado Acevedo, explaining that the reason for the issuance of that decision was to ensure that Immigration Judges could use termination in situations, “where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa; or where, as here, termination is necessary for the respondent to be eligible to seek immigration relief before USCIS.” See Matter of Coronado Acevedo, 28 I&N Dec. 648 at 651 (A.G. 2022)(emphasis added).  The Attorney General further states, “Pending the outcome of the rulemaking process, immigration judges and the Board should be permitted to consider and, where appropriate, grant termination in these types of limited circumstances.” Id. at 652. The decision addresses the exact circumstances present in this case and finds that termination in such a scenario is squarely within the Court’s authority.

Motion for Severance

BASICS

The Immigration Court Practice Manual states that it should be titled "Motion for Severance" and should follow the regular rules regarding the timing of motions.


STATUTORY AUTHORITY

An Immigration Judge has the discretion to consolidate or sever proceedings, when appropriate, under 8 CFR §1240.1(a)(iv) (“take any other action consistent with applicable law and regulations as may be appropriate”) and the Immigration Court Practice Manual, Chapter 4.21(b). Consolidation is appropriate when hearings share substantially similar evidence and material issues. See 28 C.F.R. § 68.16

CASE LAW

An Immigration Judge has the discretion to consolidate or sever proceedings, when appropriate, under 8 CFR §1240.1(a)(iv) (“take any other action consistent with applicable law and regulations as may be appropriate”) and the Immigration Court Practice Manual, Chapter 4.21(b).  Consolidation is appropriate when hearings share substantially similar evidence and material issues. See 28 C.F.R. § 68.16; Matter of Taerghodsi, 16 I. & N. Dec. 260, 262-63 (BIA 1977). An Immigration Judge may consolidate proceedings for purposes of judicial efficiency and convenience only if it does not deny a respondent the right to fully litigate their claims. Id. at 263. The Board, in Matter of Taerghodsi addressed this issue:

We conclude, therefore, that it is within the power of the immigration judge to consolidate proceedings, if such consolidation does not serve to deny the respondent the right to fully and clearly litigate his claims. Necessarily, then, each case in which there has been a consolidation must be considered on its own record, with scrutiny of the respondent's opportunity at the hearing to have his case clearly presented before the immigration judge. Cf. Williams v. United States, 416 F.2d 1064, 1068 (8 Cir. 1969); Tillman v. United States, 406 F.2d 930, 934 (5 Cir. 1969).

Id. at 263.


EXAMPLE MOTION FOR SEVERANCE


UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW

IMMIGRATION COURT

201 VARICK ST

NEW YORK, NY


In the Matter of:

     

REDACTED

                                                                       &

REDACTED

REDACTED

                      Respondents

In Removal Proceedings

 

    

             File No.:   A (lead)
              

                               A (rider)

                                A

 

RIDER RESPONDENTS’ MOTION FOR SEVERANCE

The Rider Respondents in this case, redacted(hereinafter, "Rider Respondents"), through their counsel, hereby move this Court to sever their removal proceedings from that of the lead respondent, redacted hereinafter, "Lead Respondent").

All three Respondents are scheduled for an individual hearing on May 6, 2025, at 8:30 AM before Immigration Judge redacted. The Rider Respondents are requesting severance because USCIS has approved their Form I-360 petitions for special immigrant juvenile status under section 1101(a)(27)(J) of the Immigration and Nationality Act, and granted them deferred action. (See Exhibit A: Copies of the Form I-360 Approval Notices). As a result, the Rider Respondents are prima facie eligible for adjustment of status upon visa availability pursuant to INA §§245(h), 245(a). Rider Respondents’ eligibility for adjustment of status is further detailed in a concurrently filed Motion to Terminate or Administratively Close in the Alternative pursuant to  Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022). 

Given the Rider Respondents’ grant of deferred action and categorization as special immigrant juveniles, it is no longer in their best interest to remain as riders on the Lead Respondent's asylum application. An Immigration Judge has the discretion to consolidate or sever proceedings, when appropriate, under 8 CFR §1240.1(a)(iv) (“take any other action consistent with applicable law and regulations as may be appropriate”) and the Immigration Court Practice Manual, Chapter 4.21(b).  Consolidation is appropriate when hearings share substantially similar evidence and material issues. See 28 C.F.R. § 68.16; Matter of Taerghodsi, 16 I. & N. Dec. 260, 262-63 (BIA 1977). An Immigration Judge may consolidate proceedings for purposes of judicial efficiency and convenience only if it does not deny a respondent the right to fully litigate their claims. Id. at 263. The Board, in Matter of Taerghodsi addressed this issue:

We conclude, therefore, that it is within the power of the immigration judge to consolidate proceedings, if such consolidation does not serve to deny the respondent the right to fully and clearly litigate his claims. Necessarily, then, each case in which there has been a consolidation must be considered on its own record, with scrutiny of the respondent's opportunity at the hearing to have his case clearly presented before the immigration judge. Cf. Williams v. United States, 416 F.2d 1064, 1068 (8 Cir. 1969); Tillman v. United States, 406 F.2d 930, 934 (5 Cir. 1969).

Id. at 263.


Since the Rider Respondents' and Lead Respondent's cases no longer require substantially similar evidence and are not substantially related, severance is necessary to ensure the Rider Respondents' right to fully litigate their claims. Id. The Rider Respondents are seeking different relief than the Lead Respondent.  The Rider Respondents will not be providing testimony in the Lead Respondent’s case and the Lead Respondent would not  need to provide any testimony in the Rider Respondents’ case.  Further, all three Respondents were put into removal proceedings through the issuance of a Notice to Appear charging them as removable pursuant to INA § 212(a)(6)(A)(i) as aliens that are present in the United States without having been admitted or paroled.  See the Notice to Appear.  The Lead Respondent is inadmissible under INA § 212(a)(6)(A)(i)  as conceded in pleadings. The Rider Respondents, however, are no longer inadmissible under that charge since they have been paroled pursuant to INA §§245(h) and 1101(a)(27)(J)  as special immigrant juveniles. See also 8 C.F.R. § 1245.1(a). Whether the Rider Respondents may be ordered removed based on a ground of inadmissibility which Congress expressly exempted special immigrant juveniles, is a fundamental aspect of the Rider Respondents’ case that is completely divorced from the Lead Respondent’s. 

The two cases–the Lead Respondent’s and the Rider Respondents’–involve independent facts that do not overlap or rely on the same witnesses. Additionally, the cases present unique questions of law. Since the cases have virtually no overlap, their consolidation does not benefit either party nor the Court. Keeping the Rider Respondents’ case consolidated with the Lead Respondent may raise due process concerns regarding their ability to fully litigate their claims. Id. The Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018) factors for establishing good cause for a continuance and the Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) factors for establishing grounds for administrative closure pending factors outside the parties’ control  would both be significantly impacted by the inclusion the Lead Respondent in the analysis.  Further, the Rider Respondents 

Severance will not prejudice the Department or delay the Lead Respondent's proceedings, which will not be affected by the severance of the Rider Respondents. For these reasons, the Rider Respondents, through counsel, request that this Court grant this Motion for Severance.

            Respectfully submitted,


redacted

                                                                                        by ________________________     
redacted


Motion to Withdraw

Motion to Withdraw as Attorney of Record

A motion to withdraw as counsel must comply with Matter of Rosales (BIA 1988).

Counsel must file a motion with the Court providing:

  1. Evidence that counsel attempted to contact the Respondent at their last known address with the following information: Date, time, and place, of scheduled hearing.
  2. The Respondent's last known address.

If those requirements are not met then the motion to draw may only be conditionally granted.



Matter of Rosales, Interim Decision #3064 (BIA 1988)

A-27188547 | Decided by Board April .21, 1988

(1) Where an attorney asks to withdraw from representation of an alien, his request for withdrawal should include evidence that he attempted to advise his client, at his last known address, of the date, time, and place of the scheduled hearing, and he should also provide the immigration judge with the alien's last known address, assuming it is more current than any address previously provided to the immigration judge.

(2) Unless these requirements are met, counsel's withdrawal should be only conditionally granted, that is, granted for all purposes except receipt of service of documents.