5.2 - Filing a Motion

(a) Where to File

The immigration court may entertain motions only in those cases in which it has jurisdiction.  See subsections (1), (2), (3), below, Appendix J (Filing Motions).  If the immigration court has jurisdiction, motions are filed with the immigration court having administrative control over the Record of Proceedings.  See Chapter 3.1(a) (Filing). 

      (1) 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).  

      (2) 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.

      (3) Cases already decided by the immigration court

           (A) 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 Chapters 5.7 (Motions to Reopen), 5.8 (Motions to Reconsider), 5.9 (Motions to Reopen In Absentia Orders).

           (B) 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 of Immigration Appeals Practice Manual.  See also Appendix J (Filing Motions). 

(b) 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 Chapter 3 (Filing with the Immigration Court), Appendix E (Cover Pages).  In addition, all motions not filed through ECAS must be accompanied by the appropriate proposed order for the immigration judge’s signature.  Motions and supporting documents should be assembled in the order described in Chapter 3.3(c)(1) (Order of documents).

A motion’s cover page must accurately describe the motion.  See Chapter 3.3(c)(6) (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 Chapter 5.3 (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.

(c) When to File

Pre-decision motions must comply with the deadlines for filing discussed in Chapter 3.1(b) (Timing of Submissions). Deadlines for filing motions to reopen, motions to reconsider, and motions to reopen in absentia orders are governed by statute or regulation.  See Chapters 5.7 (Motions to Reopen), 5.8 (Motions to Reconsider), 5.9 (Motions to Reopen In Absentia Orders).

(d) 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. 

(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).

(f) 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 Chapter 3.4 (Filing Fees). 

(g) 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 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 Chapter 11.3 (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 Chapter 3.4(c) (Application Fees).

(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. 

(i) 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.

(j) 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.