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Immigration Court Practice Manual

Immigration Court Practice Manual
Chapter 5 - Motions Before the Immigration Court

5.10 - Other 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 E (Cover Pages).

         The filing of a motion to continue does not excuse the appearance of a respondent or practitioner of record 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.  A motion to advance should completely articulate the reasons for the request.  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 E (Cover Pages).

(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:

  • the date and time of the next scheduled hearing
  • a fixed street address where the respondent may be reached for further hearing notification
  • if the address at which the respondent is receiving mail has changed, a properly completed change of address form (Form EOIR‑33/IC)
  • 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 E (Cover Pages). The motion should demonstrate good cause for the change in venue, and any grant or denial of such a motion is within the discretion of the immigration judge. 8 C.F.R. § 1003.20(b); Matter of Rivera, 19 I&N Dec. 688 (BIA 1988).

         The filing of a motion to change venue does not excuse the appearance of a respondent or practitioner of record 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 2.1(b)(3) (Change in Representation).

(e) Motion to Withdraw as Counsel — See Chapter 2.1(b)(3) (Change in Representation).

(f) Motion for Extension — See Chapter 3.1(c)(4) (Motions for extensions of filing deadlines).

(g) Motion for Master Calendar Hearing — See Chapter 3.1(c)(5) (Motions for master calendar hearing).

(h) Motion to Accept an Untimely Filing — See Chapter 3.1(d)(2) (Untimely filings).

(i) Motion for Closed Hearing — See Chapter 4.9 (Public Access).

(j) Motion to Waive Practitioner of Record’s Appearance — See Chapter 4.15 (Master Calendar Hearing).

(k) Motion to Waive Respondent’s Appearance — See Chapter 4.15 (Master Calendar Hearing).

(l) Motion to Permit Telephonic Appearance — See Chapter 4.15 (Master Calendar Hearing).

(m) Motion to Request an Interpreter — See Chapter 4.15 (Master Calendar Hearing).

(n) Motion for Video Testimony — See Chapter 4.15 (Master Calendar Hearing).

(o) Motion to Present Telephonic Testimony — See Chapter 4.15 (Master Calendar Hearing).

(p) Motion for Subpoena — See Chapter 4.20 (Subpoenas).

(q) Motion for Consolidation — See Chapter 4.21 (Combining and Separating Cases).

(r) Motion for Severance — See Chapter 4.21 (Combining and Separating Cases).

(s) Motion to Stay Removal or Deportation — See Chapter 8 (Stays).

(t) Motions in Disciplinary Proceedings — Motions in proceedings involving the discipline of a practitioner are discussed in Chapter 10 (Discipline of Practitioners).

(u) 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 E (Cover Pages).  To ensure that the immigration court has the respondent’s current address, a change of address form (EOIR-33/IC) should be filed with the motion.  Motions to recalendar are not subject to time and number restrictions.

 (v) 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 E (Cover Pages).

(w) Motion for Prima Facie Determination of Eligibility — Noncitizens with a pending application for suspension of deportation under section 244(a)(3) of the Act, or cancellation of removal under section 240A(b)(2) of the Act, may file a motion with the immigration court for a determination that they are a “qualified” noncitizen for purposes of receiving public benefits under section 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 as a noncitizen who has demonstrated prima facie eligibility for such relief from removal.

         In order to file a motion for prima facie determination, the noncitizen must have filed or is filing concurrently a completed application for suspension of deportation under section 244(a)(3) or cancellation of removal under section 240A(b)(2) of the INA.  The motion must be accompanied by a signed statement by the noncitizen, under penalty of perjury, stating whether they have been convicted of any crime and, if so, any details about the offense(s).  Any additional statements or evidence that the noncitizen wishes the Court to consider must also be attached to the motion.

         Responses to motions for prima facie determination are due within five (5) business days after the motion was received by the immigration court, unless otherwise specified by the immigration judge.

         Once an appeal is filed with the Board of Immigration Appeals, the immigration judge no longer has jurisdiction over the case.  See Chapter 5.2(a) (Where to file).  Thus, motions for prima facie determination should not be filed with the immigration court after an appeal is taken to the Board.

(x) 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 Chapter 5.2 (Filing a Motion), Appendix E (Cover Pages).