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).