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Immigration Court Practice Manual

Immigration Court Practice Manual
Chapter 3 - Filing with the Immigration Court

3.2 - Service on the Opposing Party

(a) Service Requirements -

The requirement to serve documents on the opposing party depends on whether both parties are participating in ECAS, as explained below.

             (1) ECAS completes service — If all parties are using ECAS in a specific case, the parties do not need to separately serve any electronically filed documents on the opposing party.  Rather, the ECAS system will automatically send service notifications to both parties that a new document has been filed.  The parties must continue to include a certificate of service with their electronic filing, but simply note in the certificate that service was completed through ECAS.

             For purposes of ECAS service, DHS is always considered to be participating in ECAS.  Conversely, when DHS is electronically filing, EOIR will provide a notification to DHS users in the DHS Portal as to whether the opposing party is participating in ECAS or requires separate service.

             (2) Separate service required — 

If one or more parties is not using ECAS in a specific case, or a specific document is not filed through ECAS, then the parties must complete service separately outside of the ECAS system. 

If separate service is required, a party must: 

  • provide, or “serve,” an identical copy on the opposing party (or, if the party is represented, the party’s practitioner of record), and 
  • except for filings served during a hearing or jointly-filed motions agreed upon by all parties, declare in writing that a copy has been served. 

The written declaration is called a “Proof of Service,” also referred to as a “Certificate of Service.”  See subsection (e), below, Appendix F (Cert. of Service).  

(b) Whom to Serve -

For an alien in proceedings, the opposing party is the Department of Homeland Security (DHS).  In most instances, a DHS Chief Counsel or a specific DHS Assistant Chief Counsel is the designated officer to receive service.  Parties may contact the immigration court for the DHS address.  The opposing party is never the Immigration Judge or immigration court.

(c) Method of Service -

Service on the opposing party may be accomplished electronically, by hand-delivery, by U.S. Postal Service, or by commercial courier.  Where service on the opposing party is accomplished by hand-delivery, service is complete when the filing is hand-delivered to a responsible person at the address of the individual being served.

Where service on the opposing party is accomplished by U.S. Postal Service or commercial courier, service is complete when the filing is deposited with the U.S. Postal Service or the commercial courier.  Note that this rule differs from the rule for filings—filings with the immigration court are deemed complete when documents are received by the court, not when documents are mailed.  See Chapter 3.1(a)(3) (Receipt rule).

(d) Timing of Service - 

The Proof of Service must bear the actual date of transmission and accurately reflect the means of transmission (e.g., electronic, hand delivery, regular mail, overnight mail, commercial courier, etc.).  Service must be calculated to allow the other party sufficient opportunity to act upon or respond to served material.

(e) Proof of Service - 

A Proof of Service is required for all filings, except filings served on the opposing party during a hearing or jointly filed motions agreed upon by all parties.  See Appendix F (Certificate of Service).  When documents are submitted as a package, the Proof of Service should be placed at the bottom of the package.

     (1) Contents of Proof of Service - A Proof of Service must state:

  • the name or title of the party served
  • the precise and complete address of the party served
  • the date of service
  • the means of service (e.g., hand delivery, regular mail, overnight mail, commercial courier, etc.)
  • the document or documents being served

A Proof of Service must contain the name and signature of the person serving the document.  A Proof of Service may be signed by an individual designated by the filing party. In contrast, the document(s) being served must be signed by the individual who drafted or prepared the documents, whether DHS, an unrepresented respondent, a practitioner of record, or a practitioner who drafted, completed, or prepared the document(s) pursuant to a limited appearance for document assistance. See Chapter 3.3(b) (Signatures).

If service is being completed through ECAS, the Proof of Service should state, “This document was electronically filed through ECAS and both parties are participating in ECAS.  Therefore, no separate service was completed.” 

     (2) Certificates of Service on applications - Certain forms, such as the Application for Cancellation of Removal for Certain Permanent Residents (Form EOIR-42A), contain a Certificate of Service, which functions as a Proof of Service.  Such a Certificate of Service only functions as a Proof of Service for the form on which it appears, not for any supporting documents filed with the form.  If supporting documents are filed with an application containing a Certificate of Service, a separate Proof of Service for the entire submission must be included. If service is being completed through ECAS, the Proof of Service should state, “This document was electronically filed through ECAS and both parties are participating in ECAS.  Therefore, no separate service was completed.” 

(f) Practitioner of Record and Service 

     (1) Service on a practitioner of record - Service on a practitioner of record constitutes service on the person or entity represented.  If an alien is represented, the Department of Homeland Security must serve the alien’s practitioner of record but need not serve the alien.  See 8 C.F.R. § 1292.5(a), Chapter 2 (Appearances before the Immigration Court).

    (2) Service by a represented alien - Whenever a party is represented, documents are served by the practitioner of record (or the designee listed on the Proof of Service).    See 8 C.F.R. § 1292.5(a), Chapter 2.1 (Representation Generally).  

    (3) Service by an unrepresented alien who received document assistance from a practitioner - A pro se respondent who received document assistance from a practitioner (or the designee listed on the Proof of Service) must serve the Department of Homeland Security with the completed Form EOIR-61 and document, or set of documents, on which they were provided assistance.

(g) Proof of Service and Notice of Appearance -

All filings with the Immigration Court must include a Proof of Service that identifies the item being filed, unless served during a hearing.  Thus, a completed Proof of Service on Form EOIR-28 or Form EOIR-61 does not constitute Proof of Service of documents accompanying the Form EOIR-28 or Form EOIR-61.  See Chapters 3.2(f)(2) (Service by a represented alien).