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

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