Only a party to a proceeding, or a party’s representative, may file a motion pertaining to that proceeding. Family members, employers, and other third parties may not file a motion. If a third party seeks Court action in a particular case, the request should be made through a party to the proceeding.
The Court only considers motions in those cases in which it has jurisdiction. If the Court has jurisdiction, motions are filed with the Court having administrative control over the Record of Proceedings.
Except for requests for bond redetermination proceedings, the Court cannot entertain motions if a charging document (i.e., a Notice to Appear) has not been filed with the court.
If a charging document has been filed with the Court but the case has not yet been decided by the Judge, all motions must be filed with the court.
Motions and supporting documents should be assembled in the proper order described in the Practice Manual. A motion’s cover page must accurately describe the motion. Motions must identify the relief or remedy sought by the filing party.
Motions must comply with the appropriate deadlines depending on the kind of motion.
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 Judge, that evidence should be submitted. Such evidence may include sworn affidavits, declarations under the penalties of perjury, and documentary evidence. The 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 discussed in the Practice Manual. 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.
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. 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. The copy that is submitted to the Court should be accompanied by a copy of appropriate supporting documents.
When relating to an application for relief, the party must demonstrate prima facie eligibility.
Fees for applications must be paid if and when a motion is granted, but they must be paid to the appropriate agency or location, not to the Court. 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). The filing fee for a visa petition is submitted to DHS when the petition is filed with DHS.
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.