Filing A Motion

Filing A Motion in the United States

Filing a Motion in relation to Immigration Courts

(information based on the DoJ Manual)

Where to file

The Immigration Court may entertain motions only in those cases in which it has jurisdiction. See (in this American law platform, in relation to immigration courts and judges) Where to File. If the Immigration Court has jurisdiction, motions are filed with the Immigration Court having administrative control over the Record of Proceedings. See (in this American law platform, in relation to immigration courts and judges) Filing.

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 (in this American law platform, in relation to immigration courts and judges) Commencement of Removal Proceedings, and Jurisdiction.

Cases pending before the Immigration Court

If a charging document has been filed with the Immigration Court but the case has not yet been decided by the Immigration Judge, all motions must be filed with the court.

Cases already decided by the Immigration Court

No appeal filed

Where a case has been decided by the Immigration Judge, and no appeal has been filed with the Board of Immigration Appeals, motions to reopen and motions to reconsider are filed with the Immigration Court. Parties should be mindful of the strict time and number limits on motions to reopen and motions to reconsider. See (in this American law platform, in relation to immigration courts and judges) Motions to Reopen, Motions to Reconsider, and Motions to Reopen In Absentia Orders.

Appeal filed

Where a case has been decided by the Immigration Judge, and an appeal has been filed with the Board of Immigration Appeals, the parties should consult the Board American Encyclopedia of Law for guidance on where to file motions. The Board American Encyclopedia of Law is available on the Executive Office for Immigration Review website. See (in this American law platform, in relation to immigration courts and judges) also Where to File.

Form

There is no official form for filing a motion before the Immigration Court. Motions must be filed with a cover page and comply with the requirements for filing. See (in this American law platform, in relation to immigration courts and judges) Filing with the Immigration Court. In addition, all motions must be accompanied by the appropriate proposed order for the Immigration Judge’s signature. See (in this American law platform, in relation to immigration courts and judges) Sample Proposed Order. Motions and supporting documents should be assembled in the order described in Order of documents (see). A motion’s cover page must accurately describe the motion. See (in this American law platform, in relation to immigration courts and judges) Cover page and caption. Parties should note that the Immigration Court construes motions according to content rather than title. Therefore, the court applies time and number limits according to the nature of the motion rather than the motion’s title. See (in this American law platform, in relation to immigration courts and judges) Motion Limits. 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.

When to file

Pre-decision motions must comply with the deadlines for filing discussed in Timing of submissions (see). Deadlines for filing motions to reopen, motions to reconsider, and motions to reopen in absentia orders are governed by statute or regulation. See (in this American law platform, in relation to immigration courts and judges) Motions to Reopen, Motions to Reconsider, and Motions to Reopen In Absentia Orders.

Copy of underlying order

Motions to reopen and motions to reconsider should be accompanied by a copy of the Immigration Judge’s decision, where available.

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 Affidavit (document in which a person states facts, swearing that the facts are true and accurate)s, 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 Documents (see).

Filing fee

Where the motion requires a filing fee, the motion must be accompanied by a fee receipt from the Department of Homeland Security (DHS) or a request that the Immigration Judge waive the fee. Filing fees are paid to DHS. See (in this American law platform, in relation to immigration courts and judges) Filing Fees).

Application for relief

A motion based upon eligibility for relief must be accompanied by a copy of the application for that relief and all supporting documents, if an application is normally required. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(3). A grant of a motion based on eligibility for relief does not constitute a grant of the underlying application for relief. The application for relief must be duly completed and executed, in accordance with the requirements for such relief. The original application for relief should be held by the filing party for submission to the Immigration Court, if appropriate, after the ruling on the motion. See (in this American law platform, in relation to immigration courts and judges) Submitting Completed Forms. The copy that is submitted to the Immigration Court should be accompanied by a copy of the appropriate supporting documents. If a certain form of relief requires an application, prima facie eligibility for that relief cannot be shown without it. For example, if a motion to reopen is based on adjustment of status, a copy of the completed Application to Adjust Status (Form I-485) should be filed with the motion, along with the necessary documents. Application fees are not paid to the Immigration Court and should not accompany the motion. Fees for applications should be paid if and when the motion is granted in accordance with the filing procedures for that application. See (in this American law platform, in relation to immigration courts and judges) Application fees.

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.

Opposing party’s position

The party filing a motion should make a good faith effort to ascertain the opposing party’s position on the motion. The opposing party’s position should be stated in the motion. If the filing party was unable to ascertain the opposing party’s position, a description of the efforts made to contact the opposing party should be incl
uded.

Oral argument

The Immigration Court generally does not grant requests for oral argument on a motion. If the Immigration Judge determines that oral argument is necessary, the parties are notified of the hearing date.

Filing a Motion in relation to Immigration Courts

(information based on the DoJ Manual)

Where to file

The Immigration Court may entertain motions only in those cases in which it has jurisdiction. See (in this American law platform, in relation to immigration courts and judges) Where to File. If the Immigration Court has jurisdiction, motions are filed with the Immigration Court having administrative control over the Record of Proceedings. See (in this American law platform, in relation to immigration courts and judges) Filing.

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 (in this American law platform, in relation to immigration courts and judges) Commencement of Removal Proceedings, and Jurisdiction.

Cases pending before the Immigration Court

If a charging document has been filed with the Immigration Court but the case has not yet been decided by the Immigration Judge, all motions must be filed with the court.

Cases already decided by the Immigration Court

No appeal filed

Where a case has been decided by the Immigration Judge, and no appeal has been filed with the Board of Immigration Appeals, motions to reopen and motions to reconsider are filed with the Immigration Court. Parties should be mindful of the strict time and number limits on motions to reopen and motions to reconsider. See (in this American law platform, in relation to immigration courts and judges) Motions to Reopen, Motions to Reconsider, and Motions to Reopen In Absentia Orders.

Appeal filed

Where a case has been decided by the Immigration Judge, and an appeal has been filed with the Board of Immigration Appeals, the parties should consult the Board American Encyclopedia of Law for guidance on where to file motions. The Board American Encyclopedia of Law is available on the Executive Office for Immigration Review website. See (in this American law platform, in relation to immigration courts and judges) also Where to File.

Form

There is no official form for filing a motion before the Immigration Court. Motions must be filed with a cover page and comply with the requirements for filing. See (in this American law platform, in relation to immigration courts and judges) Filing with the Immigration Court. In addition, all motions must be accompanied by the appropriate proposed order for the Immigration Judge’s signature. See (in this American law platform, in relation to immigration courts and judges) Sample Proposed Order. Motions and supporting documents should be assembled in the order described in Order of documents (see). A motion’s cover page must accurately describe the motion. See (in this American law platform, in relation to immigration courts and judges) Cover page and caption. Parties should note that the Immigration Court construes motions according to content rather than title. Therefore, the court applies time and number limits according to the nature of the motion rather than the motion’s title. See (in this American law platform, in relation to immigration courts and judges) Motion Limits. 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.

When to file

Pre-decision motions must comply with the deadlines for filing discussed in Timing of submissions (see). Deadlines for filing motions to reopen, motions to reconsider, and motions to reopen in absentia orders are governed by statute or regulation. See (in this American law platform, in relation to immigration courts and judges) Motions to Reopen, Motions to Reconsider, and Motions to Reopen In Absentia Orders.

Copy of underlying order

Motions to reopen and motions to reconsider should be accompanied by a copy of the Immigration Judge’s decision, where available.

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 Affidavit (document in which a person states facts, swearing that the facts are true and accurate)s, 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 Documents (see).

Filing fee

Where the motion requires a filing fee, the motion must be accompanied by a fee receipt from the Department of Homeland Security (DHS) or a request that the Immigration Judge waive the fee. Filing fees are paid to DHS. See (in this American law platform, in relation to immigration courts and judges) Filing Fees).

Application for relief

A motion based upon eligibility for relief must be accompanied by a copy of the application for that relief and all supporting documents, if an application is normally required. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.23(b)(3). A grant of a motion based on eligibility for relief does not constitute a grant of the underlying application for relief. The application for relief must be duly completed and executed, in accordance with the requirements for such relief. The original application for relief should be held by the filing party for submission to the Immigration Court, if appropriate, after the ruling on the motion. See (in this American law platform, in relation to immigration courts and judges) Submitting Completed Forms. The copy that is submitted to the Immigration Court should be accompanied by a copy of the appropriate supporting documents. If a certain form of relief requires an application, prima facie eligibility for that relief cannot be shown without it. For example, if a motion to reopen is based on adjustment of status, a copy of the completed Application to Adjust Status (Form I-485) should be filed with the motion, along with the necessary documents. Application fees are not paid to the Immigration Court and should not accompany the motion. Fees for applications should be paid if and when the motion is granted in accordance with the filing procedures for that application. See (in this American law platform, in relation to immigration courts and judges) Application fees.

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.

Opposing party’s position

The party filing a motion should make a good faith effort to ascertain the opposing party’s position on the motion. The opposing party’s position should be stated
in the motion. If the filing party was unable to ascertain the opposing party’s position, a description of the efforts made to contact the opposing party should be included.

Oral argument

The Immigration Court generally does not grant requests for oral argument on a motion. If the Immigration Judge determines that oral argument is necessary, the parties are notified of the hearing date.


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