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Immigration Court Chapter 5 Practice Manual Motions before the Immigration Court

5 Motions before the Immigration Court

5.1 Who May File

(a) Parties. — Only an alien who is in proceedings before the Immigration Court (or the alien’s representative), or the Department of Homeland Security may file a motion. Amotion must identify all parties covered by the motion and state clearly their full names and alien registration numbers (“A numbers”), including all family members in proceedings. SeeChapter 5.2(b) (Form), Appendix F (Sample Cover Page). The Immigration Judge will notassume that the motion includes all family members (or group members in consolidated proceedings). See Chapter 4.21 (Combining and Separating Cases).

(b) Representatives. — Whenever a party is represented, the party should submit all motions to the Court through the representative. See Chapter 2.1(d) (Who may file).

(i) Pre-decision motions. — If a representative has already filed a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28), and the Immigration Judge has not rendered a final order in the case, a motion need not be accompanied by a Form EOIR-28. However, if a representative is appearing for the first time, the representative must file a Form EOIR-28 along with the motion. See Chapter 2 (Appearances before the Immigration Court).

(ii) Post-decision motions. — All motions to reopen, motions to reconsider, and motions to reopen to rescind an in absentia order filed by a representative must be accompanied by a Form EOIR-28, even if the representative is already the representative of record. See Chapter 2 (Appearances before the Immigration Court).

(c) Persons not party to the proceedings. — 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 Immigration Court action in a particular case, the request should be made through a party to the proceeding.

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 (i), (ii), (iii), below, Appendix K (Where

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to File). 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).

(i) 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).

(ii) 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.

(iii) 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 Practice Manual for guidance on where to file motions. The Board Practice Manual is available on the Executive Office for Immigration Review website at www.usdoj.gov/eoir/biainfo.htm. See also Appendix K (Where to File).

(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. SeeChapter 3 (Filing with the Immigration Court), Appendix F (Sample Cover Page). Inaddition, all motions must be accompanied by a proposed order for the Immigration Judge’s signature. See Chapter 3.3(c)(i) (Order of documents), Appendix Q (Sample Proposed Order). Motions and supporting documents should be assembled in the order described in Chapter 3.3(c)(i) (Order of documents).

A motion’s cover page must accurately describe the motion. See Chapter 3.3(c)(vi) (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. SeeChapter 5.3 (Motion Limits).

Motions must state with particularity the grounds on which the motion is based. Inaddition, 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. TheImmigration 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.



5.3 Motion Limits

Certain motions are limited in time (when the motions must be filed) and number (how many motions may be filed). Pre-decision motions are limited in time. See Chapter 3.1(b) (Timing of submissions). Motions to reopen and motions to reconsider are limited in both time and number. See Chapters 5.7 (Motions to Reopen), 5.8 (Motions to Reconsider), 5.9 (Motions to Reopen In Absentia Orders). Time and number limits are strictly enforced.

5.4 Multiple Motions

When multiple motions are filed, the motions should be accompanied by a cover letter listing the separate motions. In addition, each motion must include a cover page and comply with the deadlines and requirements for filing. See Chapter 5.2(b) (Form), Appendix F (Sample Cover Page).

Parties are strongly discouraged from filing compound motions, which are motions that combine two separate requests. Parties should note that time and number limits apply to motions even when submitted as part of a compound motion. For example, if a motion seeks both reopening and reconsideration, and is filed more than 30 days after the Immigration Judge’s decision (the deadline for reconsideration) but within 90 days of that decision (the deadline for reopening), the portion that seeks reconsideration is considered untimely.

5.5 Motion Briefs

A brief is not required in support of a motion. However, if a brief is filed, it should accompany the motion. See 8 C.F.R. § 1003.23(b)(1)(ii). In general, motion briefs should comply with the requirements of Chapters 3.3 (Documents) and 4.19 (Pre-Hearing Briefs).

A brief filed in opposition to a motion must comply with the filing deadlines for responses. See Chapter 3.1(b) (Timing of submissions).

5.6 Transcript Requests

The Immigration Court does not prepare a transcript of proceedings. See Chapter 4.10 (Record). Parties are reminded that recordings of proceedings are generally available for review by prior arrangement with the Immigration Court. See Chapter 1.6(c) (Records).



5.7 Motions to Reopen

(a) Purpose. — A motion to reopen asks the Immigration Court to reopen proceedings after the Immigration Judge has rendered a decision, so that the Immigration Judge can consider new facts or evidence in the case.

(b) Requirements. —

(i) Filing. — The motion should be filed with a cover page labeled “MOTIONTO REOPEN” and comply with the deadlines and requirements for filing. Seesubsection (c), below, Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page). If the alien is represented, the attorney must file a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28). See Chapter 2.1(b) (Entering an appearance). To ensure that the Immigration Court has the alien’s current address, an Alien’s Change of Address Form (EOIR-33/IC) should be filed with the motion. Depending on the nature of the motion, a filing fee or fee waiver request may be required. See Chapter 3.4 (Filing Fees). If the motion is based on eligibility for relief, the motion must be accompanied by a copy of the application for that relief and all supporting documents, if an application is normally required. See Chapter 5.2(g) (Application for relief).

(ii) Content. — A motion to reopen must state the new facts that will be proven at a reopened hearing if the motion is granted, and the motion must be supported by affidavits or other evidentiary material. 8 C.F.R. § 1003.23(b)(3).

A motion to reopen is not granted unless it appears to the Immigration Judge that the evidence offered is material and was not available and could not have been discovered or presented at an earlier stage in the proceedings. See 8 C.F.R. § 1003.23(b)(3).

A motion to reopen based on an application for relief will not be granted if it appears the alien’s right to apply for that relief was fully explained and the alien had an opportunity to apply for that relief at an earlier stage in the proceedings (unless the relief is sought on the basis of circumstances that have arisen subsequent to that stage of the proceedings). 8 C.F.R. § 1003.23(b)(3).

(c) Time limits. — As a general rule, a motion to reopen must be filed within 90 days of an Immigration Judge’s final order. 8 C.F.R. § 1003.23(b)(1). (For cases decided by the Immigration Judge before July 1, 1996, the motion to reopen was due on or before September 30, 1996. 8 C.F.R. § 1003.23(b)(1)). There are few exceptions. See subsection (e), below.



Responses to motions to reopen are due within fifteen (15) days after the motion was received by the Immigration Court, unless otherwise specified by the Immigration Judge.

(d) Number limits. — A party is permitted only one motion to reopen. 8 C.F.R. § 1003.23(b)(1). There are few exceptions. See subsection (e), below.

(e) Exceptions to the limits on motions to reopen. — A motion to reopen may be filed outside the time and number limits only in specific circumstances. See 8 C.F.R. § 1003.23(b)(4).

(i) Changed circumstances. — When a motion to reopen is based on a request for asylum, withholding of removal (“restriction on removal”), or protection under the Convention Against Torture, and it is premised on new circumstances, the motion must contain a complete description of the new facts that comprise those circumstances and articulate how those circumstances affect the party’s eligibility for relief. See 8 C.F.R. § 1003.23(b)(4)(i). Motions based on changed circumstances must also be accompanied by evidence of the changed circumstances alleged. See 8 C.F.R. § 1003.23(b)(3).

(ii) In absentia proceedings. — There are special rules pertaining to motions to reopen following an alien’s failure to appear for a hearing. See Chapter 5.9 (Motions to Reopen In Absentia Orders).

(iii) Joint motions. — Motions to reopen that are agreed upon by all parties and are jointly filed are not limited in time or number. See 8 C.F.R. § 1003.23(b)(4)(iv).

(iv) DHS motions. — For cases in removal proceedings, the Department of Homeland Security (DHS) is not subject to time and number limits on motions to reopen. See 8 C.F.R. § 1003.23(b)(1). For cases brought in deportation or exclusion proceedings, DHS is subject to the time and number limits on motions to reopen, unless the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum. See 8 C.F.R. § 1003.23(b)(1).

(v) Pre-9/30/96 motions. — Motions filed before September 30, 1996 do not count toward the one-motion limit.

(vi) Battered spouses, children, and parents. — There are special rules for certain motions to reopen by battered spouses, children, and parents. INA § 240(c)(7)(C)(iv).



(vii) Other. — In addition to the regulatory exceptions for motions to reopen, exceptions may be created in accordance with special statutes, case law, directives, or other special legal circumstances. The Immigration Judge may also reopen proceedings at any time on his or her own motion. See 8 C. F. R. § 1003.23(b)(1).

(f) Evidence. — A motion to reopen must be supported by evidence. See Chapter 5.2(e) (Evidence).

(g) Motions filed prior to deadline for appeal. — A motion to reopen filed prior to the deadline for filing an appeal does not stay or extend the deadline for filing the appeal.

(h) Motions filed while an appeal is pending. — 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 to reopen should not be filed with the Immigration Court after an appeal is taken to the Board.

(i) Administratively closed cases. — When proceedings have been administratively closed, the proper motion is a motion to recalendar, not a motion to reopen. See Chapter 5.10(t) (Motion to recalendar).

(j) Automatic stays. — A motion to reopen that is filed with the Immigration Court does not automatically stay an order of removal or deportation. See Chapter 8 (Stays). For automatic stay provisions for motions to reopen to rescind in absentia orders, see Chapter 5.9(d)(iv) (Automatic stay).

(k) Criminal convictions. — A motion claiming that a criminal conviction has been overturned, vacated, modified, or disturbed in some way must be accompanied by clear evidence that the conviction has actually been disturbed. Thus, neither an intention to seek post-conviction relief nor the mere eligibility for post-conviction relief, by itself, is sufficient to reopen proceedings.

5.8 Motions to Reconsider

(a) Purpose. — A motion to reconsider either identifies an error in law or fact in the Immigration Judge’s prior decision or identifies a change in law that affects an Immigration Judge’s prior decision and asks the Immigration Judge to reexamine his or her ruling. Amotion to reconsider is based on the existing record and does not seek to introduce new facts or evidence.

(b) Requirements. — The motion should be filed with a cover page labeled “MOTIONTO RECONSIDER” and comply with the deadlines and requirements for filing. See subsection



(c), below, Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page). If the alien is represented, the attorney must file a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28). See Chapter 2.1(b) (Entering an appearance). To ensure that the Immigration Court has the alien’s current address, an Alien’s Change of Address Form (EOIR-33/IC) should be filed with the motion. A filing fee or a fee waiver request may be required. See Chapter 3.4 (Filing Fees).

(c) Time limits. — A motion to reconsider must be filed within 30 days of the Immigration Judge’s final administrative order. 8 C.F.R. § 1003.23(b)(1). (For cases decided by the Immigration Court before July 1, 1996, the motion to reconsider was due on or before July 31, 1996. 8 C.F.R. § 1003.23(b)(1)).

Responses to motions to reconsider are due within fifteen (15) days after the motion was received by the Immigration Court, unless otherwise specified by the Immigration Judge.

(d) Number limits. — As a general rule, a party may file only one motion to reconsider. See 8 C.F.R. § 1003.23(b)(1). Motions filed prior to July 31, 1996, do not count toward the one-motion limit. Although a party may file a motion to reconsider the denial of a motion to reopen, a party may not file a motion to reconsider the denial of a motion to reconsider. 8 C.F.R. § 1003.23(b)(1).

(e) Exceptions to the limits on motions to reconsider. —

(i) Alien motions. — There are no exceptions to the time and number limitations on motions to reconsider when filed by an alien.

(ii) DHS motions. — For cases in removal proceedings, the Department of Homeland Security (DHS) is not subject to time and number limits on motions to reconsider. See 8 C.F.R. § 1003.23(b)(1). For cases brought in deportation or exclusion proceedings, DHS is subject to the time and number limits on motions to reconsider, unless the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum. See 8 C.F.R. § 1003.23(b)(1).

(iii) Other. — In addition to the regulatory exceptions for motions to reconsider, exceptions may be created in accordance with special statutes, case law, directives, or other special legal circumstances. The Immigration Judge may also reconsider proceedings at any time on its own motion. 8 C.F.R. § 1003.23(b)(1).



(f) Identification of error. — A motion to reconsider must state with particularity the errors of fact or law in the Immigration Judge’s prior decision, with appropriate citation to authority and the record. If a motion to reconsider is premised upon changes in the law, the motion should identify the changes and, where appropriate, provide copies of that law. For citation guidelines, see Chapter 4.19(f) (Citation), Appendix J (Citation Guidelines).

(g) Motions filed prior to deadline for appeal. — A motion to reconsider filed prior to the deadline for filing an appeal does not stay or extend the deadline for filing the appeal.

(h) Motions filed while an appeal is pending. — 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 to reconsider should not be filed with an Immigration Judge after an appeal is taken to the Board.

(i) Automatic stays. — A motion to reconsider does not automatically stay an order of removal or deportation. See Chapter 8 (Stays).

(j) Criminal convictions. — When a criminal conviction has been overturned, vacated, modified, or disturbed in some way, the proper motion is a motion to reopen, not a motion to reconsider. See Chapter 5.7(k) (Criminal convictions).

5.9 Motions to Reopen In Absentia Orders

(a) In general. — A motion to reopen requesting that an in absentia order be rescinded asks the Immigration Judge to consider the reasons why the alien did not appear at the alien’s scheduled hearing. See Chapter 4.17 (In Absentia Hearing).

(b) Filing. — The motion should be filed with a cover page labeled “MOTION TO REOPEN AN IN ABSENTIA ORDER” and comply with the deadlines and requirements for filing. See subsection (d), below, Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page). If the alien is represented, the attorney must file a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28). See Chapter 2.1(b) (Entering an appearance). To ensure that the Immigration Court has the alien’s current address, an Alien’s Change of Address Form (EOIR-33/IC) should be filed with the motion. A filing fee or fee waiver request may be required, depending on the nature of the motion. See 8 C.F.R. § 1003.24(b)(2).

(c) Deportation and exclusion proceedings. — The standards for motions to reopen to rescind in absentia orders in deportation and exclusion proceedings differ from the standards in removal proceedings. See Chapter 7 (Other Proceedings before



Immigration Judges). The provisions in subsection (d), below, apply to removal proceedings only. Parties in deportation or exclusion proceedings should carefully review the controlling law and regulations. See 8 C.F.R. § 1003.23(b)(4)(iii).

(d) Removal proceedings. — The following provisions apply to motions to reopen to rescind in absentia orders in removal proceedings only. Parties should note that, in removal proceedings, an in absentia order may be rescinded only upon the granting of a motion to reopen. The Board of Immigration Appeals does not have jurisdiction to consider direct appeals of in absentia orders in removal proceedings.

(i) Content. — A motion to reopen to rescind an in absentia order must demonstrate that:

" the failure to appear was because of exceptional circumstances;

" the failure to appear was because the alien did not receive proper notice; or

" the failure to appear was because the alien was in federal or state custody and the failure to appear was through no fault of the alien

INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). The term “exceptional circumstances” refers to exceptional circumstances beyond the control of the alien (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances). INA § 240(e)(1).

(ii) Time limits. —

(A) Within 180 days. — If the motion to reopen to rescind an in absentia order is based on an allegation that the failure to appear was because of exceptional circumstances, the motion must be filed within 180 days after the in absentia order. See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).

(B) At any time. — If the motion to reopen to rescind an in absentia order is based on an allegation that the alien did not receive proper notice of the hearing, or that the alien was in federal or state custody and the failure



to appear was through no fault of the alien, the motion may be filed at any time. See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).

(C) Responses. — Responses to motions to reopen to rescind in absentia orders are due within fifteen (15) days after the motion was received by the Immigration Court, unless otherwise specified by the Immigration Judge.

(iii) Number limits. — The alien is permitted to file only one motion to reopen to rescind an in absentia order. 8 C.F.R. § 1003.23(b)(4)(ii).

(iv) Automatic stay. — The removal of the alien is automatically stayed pending disposition by the Immigration Judge of the motion to reopen to rescind an in absentia order in removal proceedings. See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).

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 F (Sample Cover Page).

The filing of a motion to continue does not excuse the appearance of an alien or representative 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. Motions to advance are disfavored. Examples of circumstances under which a hearing date might be advanced include:

" imminent ineligibility for relief, such as a minor alien “aging out” of derivative status


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" a health crisis necessitating immediate action by the ImmigrationJudge

A motion to advance should completely articulate the reasons for the request andthe adverse consequences if the hearing date is not advanced. The motion should be filedwith a cover page labeled “MOTION TO ADVANCE” and comply with the deadlines andrequirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample CoverPage).

(c) Motion to change venue. — A request to change venue should be made bywritten motion. The motion should be supported by documentary evidence. See Chapter5.2(e) (Evidence). The motion should contain the following information:

" the date and time of the next scheduled hearing

" an admission or denial of the factual allegations and charge(s) in theNotice to Appear (Form I-862)

" a designation or refusal to designate a country of removal

" if the alien will be requesting relief from removal, a description of thebasis for eligibility

" the address and telephone number of the location at whichrespondent will be residing if the motion is granted

" if the address at which the alien is receiving mail has changed, aproperly completed Alien’s Change of Address Form (FormEOIR-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”and comply with the deadlines and requirements for filing. See Chapter 5.2 (Filing aMotion), Appendix F (Sample Cover Page).

The filing of a motion to change venue does not excuse the appearance of an alienor representative at any scheduled hearing. Therefore, until the motion is granted, partiesmust appear at all hearings as originally scheduled.


(d) Motion for substitution of counsel. — See Chapter 2.3(i)(Change in representation).

(e) Motion to withdraw as counsel. — See Chapter 2.3(i) (Change in representation).

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

(g) Motion to accept an untimely filing. — See Chapter 3.1(d)(ii) (Untimely filings).

(h) Motion for closed hearing. — See Chapter 4.9 (Public Access).

(i) Motion to waive representative’s appearance. — See Chapter 4.15 (Master Calendar Hearing).

(j) Motion to waive respondent’s appearance. — See Chapter 4.15 (Master Calendar Hearing).

(k) Motion to permit telephonic appearance. — See Chapter 4.15 (Master Calendar Hearing).

(l) Motion to request an interpreter. — See Chapter 4.15 (Master Calendar Hearing).

(m) Motion for video testimony. — See Chapter 4.15 (Master Calendar Hearing).

(n) Motion to present telephonic testimony. — See Chapter 4.15 (Master Calendar Hearing).

(o) Motion for subpoena. — See Chapter 4.20 (Subpoenas).

(p) Motion for consolidation. — See Chapter 4.21 (Combining and Separating Cases).

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

(r) Motion to stay removal or deportation. — See Chapter 8 (Stays).



(s) Motions in disciplinary proceedings. — Motions in proceedings involving the discipline of an attorney or representative are discussed in Chapter 10 (Discipline of Practitioners).

(t) 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 F (Sample Cover Page). To ensure that the Immigration Court has the alien’s current address, an Alien’s Change of Address Form (EOIR-33/IC) should be filed with the motion. Motions to recalendar are not subject to time and number restrictions.

(u) 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 F (Sample Cover Page).

(v) 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 Chapters 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

5.11 Decisions

Immigration Judges decide motions either orally at a hearing or in writing. If the decision is in writing, it is generally served on the parties by regular mail.

5.12 Effect of Departure

An alien’s departure, deportation, or removal from the Untied States while a motion to reopen or a motion to reconsider is pending constitutes withdrawal of the motion. 8C.F.R. § 1003.23(b)(1).



5.13 Response to Motion

Responses to motions must comply with the deadlines and requirements for filing. See 8 C.F.R. § 1003.23(a), Chapter 3 (Filing with the Immigration Court). A motion is deemed unopposed unless timely response is made. Parties should note that unopposed motions are not necessarily granted.


MOTIONS 127

I. Motions Before Entry of a Decision

A. Motion to Terminate

B. Motion to Suppress

C. Motion to Redetermine Bond or Custody Determination

D. Motion to Withdraw as Counsel of Record

E. Motions to Recuse

F. Motions to Change Venue

G. Motion for Continuance

H. Motion to Waive the Presence of the Parties

II. Motions After Entry of a Decision

A. Motions to Reconsider

B. Motions to Reopen

C. Commonalities of Motions to Reopen and Reconsider

D. Motion for Stay of Deportation/Removal

E. Motion to Remand

MOTIONS

I. MOTIONS BEFORE ENTRY OF A DECISION

An Immigration Judge may be required to resolve a number of legal issues by motion either before, during, or after the proceedings.

Unless otherwise permitted by the Immigration Judge, motions submitted prior to the final order of an Immi-gration Judge shall be in writing and shall state with particularity the grounds, the relief sought, and the juris-diction. 8 C.F.R. §1003.23(a).

The Immigration Judge may set and extend time limits for the making of motions and replies thereto. Id.

A motion shall be deemed unopposed unless timely response is made. Id.

An Immigration Judge must state the reasons for ruling on a motion irrespective of whether the ruling is oral or in writing; otherwise parties are deprived of a fair opportunity to contest the Immigration Judge’s determi-nation, and on appeal the BIA is unable to meaningfully exercise its responsibility of reviewing a decision in light of the arguments on appeal. Matter of M-P-, 20 I&N Dec. 786 (BIA 1994).

MOTIONS

128 IMMIGRATION JUDGE BENCHBOOK

A. MOTION TO TERMINATE

1. Prior to the commencement of proceedings, DHS may cancel an Order To Show Cause (OSC), a Notice to Appear (NTA), or terminate proceedings for the reasons set forth in 8 C.F.R. §242.7 (1997) [OSC] or in 8 C.F.R. §239.2(a) and (b)(1997) . Proceedings are commenced when the charging document is filed with the Immigration Court.

2. After the commencement of the hearing, only an Immigration Judge may terminate proceedings upon the request or motion of either party. Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998); see also 8 C.F.R. §1239.2(c).

3. The alien may request termination on grounds such as: the charging document is defective, e.g., not signed; incongruity between charge and allegations; the DHS has not met its burden of proof; or so that the alien can pursue an application for naturalization. This defense is available where the alien “has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors.” See 8 C.F.R. §1239.2(f); Matter of Acosta-Hidalgo, 24 I&N. Dec. 103 (BIA 2007). This defense can also be raised by members of the Armed Forces of the United States. See INA §§318, and 328-329. In many cases, DHS will ask that proceedings be terminated because it has issued two charging documents with different alien numbers.

4. A termination order is without prejudice to the DHS to file the same charge or a new charge at a later time. 8 C.F.R. §242.7(b) (1997) (Orders to Show Cause); 8 C.F.R. §1239.2(c), unless res judicata applies. See Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir. 1984).

5. An immigration judge does not err in terminating a removal case as improvidently begun where the re-spondent was subject to reinstatement of his prior order of deportation. Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007).

B. MOTION TO SUPPRESS

1. Motions to suppress are available only in a limited context.

2. Statements in a motion to suppress must be specific and detailed and based on personal knowledge. Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980).

3. An alien who questions the legality of evidence presented against him or her must come forward with proof establishing a prima facie case before the DHS will be called upon to assume the burden of justifying the manner in which it obtained the evidence. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988).

4. Even if an arrest or interrogation is unlawful, it may have no bearing on resulting immigration proceedings because the Fourth Amendment exclusionary rule is not applicable to the civil proceeding. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979). However, where there are egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the value of the evidence obtained, DHS will be precluded from using such evidence. INS v. Lopez-Mendoza, supra; Matter of Garcia, 17 I&N Dec. 319 (BIA 1980).

5. Compliance with regulatory requirements is relevant in assessing the voluntariness of statements and thus their admissibility into evidence. See 8 C.F.R. §§1287.1, 1287.3, and 1287.5. In order to exclude evidence based upon the noncompliance with DHS regulations, the alien must meet a heavy burden of proving: (1) that the regulation was not adhered to; (2) that the regulation was intended to serve a purpose of benefit to the alien; and (3) that the violation prejudiced the alien’s interest in that it affected the outcome of the proceed-ings. Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980); see also Martinez-Camargo v. INS, 282 F.3d 487 (7th Cir. 2002).

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6. The exclusionary rule is not applicable, but evidence is nevertheless inadmissible, if it was obtained in vio-lation of the alien’s privilege against self-incrimination, or if the statement was involuntary or coerced. Matter of Garcia, 17 I&N Dec. 319 (BIA 1980).

7. The alien bears the burden of proving that DHS’s evidence was unlawfully obtained. Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980).

8. The amendments to the Act enhanced the enforcement authority of the DHS officers by allowing them to make arrests, without warrants, for any federal offense committed in their presence, or for any federal felony, if there are grounds to believe that the person in question has committed, or is committing, a felony. INA §287(a)(4)-(5); 8 C.F.R. §1287.5(c). The DHS officer must be performing enforcement duties at the time of the arrest, and it must be likely that the arrested person could escape before an arrest warrant could be ob-tained. See INA §287(a)(2), 8 C.F.R. §1287.5.

9. Section 287(c) of the Act empowers immigration officers to search, without warrant, the person and per-sonal effects of any person seeking admission to the United States, if they have reasonable cause for suspect-ing that such a search would disclose grounds for denial of admission from the United States.

a. Any immigration officer has the power, without warrant, to interrogate any alien or person believed to be an alien as to his or her right to be or remain in the United States. INA §287(a)(1); 8 C.F.R. §1287.5; Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959); Matter of Pang, 11 I&N Dec. 213 (BIA 1965).

b. There is no requirement that the officer must have probable cause for such an inquiry. Matter of Perez-Lopez, 14 I&N Dec. 79 (BIA 1972).

10. The Miranda requirements are not controlling in deportation or removal proceedings, as they are civil, not criminal, in nature. Matter of Pang, 11 I&N Dec. 213 (BIA 1965); Matter of Argyros, 11 I&N Dec. 585 (BIA 1966); see also Matter of Lavoie, 12 I&N Dec. 821 (BIA 1968) (no requirement that alien be advised of right to counsel when taking preliminary statement); Matter of Baltazar, 16 I&N Dec. 108 (BIA 1977). After the examining officer has determined that formal proceedings will be instituted, an alien arrested without warrant of arrest shall be advised of the reason for his or her arrest and shall also be advised that any statement made may be used against him or her in a subsequent proceeding. 8 C.F.R. §1287.3(c).

11. The regulations at 8 C.F.R. §1287.3 provide that an alien arrested without a warrant of arrest under the authority contained in section 287(a)(2) of the Act will be examined by an officer other than the arresting of-ficer, with limited exceptions.

12. Except at the border or its functional equivalents, officers on roving patrol may stop vehicles to question the occupants about their citizenship and immigration status only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country. United States v. Brignoni-Ponce, 422 U.S. 873 (1975).

The Supreme Court has distinguished United States v. Brignoni-Ponce, 422 U.S. 873 (1975), as it relates to stopping of vehicles, from stopping and questioning of persons. INS v. Delgado, 466 U.S. 210 (1984). The Supreme Court ruled that detaining a person for questioning on a suspicion of alienage alone would diminish the privacy and security interests of both citizens and aliens legally in this country and would grant the INS impermissible discretion to detain and question an individual at whim. The Supreme Court ruled that there was no need for individualized suspicion to support the questioning by immigration officers of all workers in a factory entered by the officers on a warrant of consent, unless the questioned person had a reasonable basis for believing that he or she was not free to leave.

13. An immigration officer may ask questions to which a person responds voluntarily, provided there is no use of force, display of a weapon, the threatening presence of several officers, or other circumstances leading the questioned person reasonably to believe that he or she is not free to leave. Benitez-Mendez v. INS, 707 F.2d 1107 (9th Cir. 1983), rehr’g granted and opinion modified, 752 F.2d 1309 (9th Cir. 1984) (concluding


that the seizure of the alien violated the Fourth Amendment but statements obtained from the alien as a result of the illegal arrest were admissible at the deportation hearing).

14. Trained and experienced immigration officers may draw inferences and make deductions based on an as-sessment of the whole picture, which can supply a basis for a valid investigatory stop predicated on a reason-able suspicion of illegal activity. United States v. Cortez, 449 U.S. 411 (1981).

a. An investigatory stop cannot support prolonged interrogation without probable cause to believe that a vio-lation has occurred, particularly if the detained person is required to accompany the officers to their office. Dunaway v. New York, 442 U.S. 200 (1979).

b. The Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), upheld the power of immigration offi-cers to stop automobiles and question their occupants concerning their immigration status at reasonably lo-cated traffic checkpoints even in the absence of individualized suspicion of any impropriety. It is also consti-tutional to refer motorists selectively to a secondary inspection area for further inquiry on the basis of criteria that would not sustain a roving-patrol stop even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry. Factors that may be taken into account in determining whether stopping a vehicle in a border area is justified: characteristics of the area; proximity to the border; patterns of traffic on the particular road; previous illegal traffic; information about recent illegal border crossings in the area; be-havior of the driver (such as erratic driving or obvious attempts to evade officers); appearance of the vehicle (load, compartments, large number of passengers); occupants trying to hide. The government argued that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut. The Court however found that Mexican ancestry would not in itself support a reasonable suspicion that the occupants in the vehicle were aliens, but that it could be taken into account as a relevant factor. In all situations the officer is entitled to assess the facts in light of his or her ex-perience detecting illegal entry and smuggling.

c. A brief “investigatory stop” of a suspicious individual in order to determine his or her identity or to main-tain the status quo momentarily while obtaining more information may be reasonable. Adams v. Williams, 407 U.S. 143 (1972).

15. Under appropriate circumstances, a proper interrogation may involve some measure of restraint, short of arrest, to complete the interrogation. Matter of Yau, 14 I&N Dec. 630 (BIA 1974); Matter of Wong and Chan, 13 I&N Dec. 141 (BIA 1969).

Forcible temporary restraint incidental to interrogation is valid, and any resulting evidence is admissible, if the officer acted reasonably, in the light of the surrounding circumstances. Lau v. INS, 445 F.2d 217 (D.C. Cir. 1971), cert. denied, 404 U.S. 864 (1971).

16. A search conducted with the consent of a person who is not in custody is valid if the consent is voluntarily given, without any duress or coercion, express or implied. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The government has the burden of showing that such consent was voluntary, based on the totality of all the surrounding circumstances.

C. MOTION TO REDETERMINE BOND OR CUSTODY DETERMINATION

Pursuant to 8 C.F.R. §1003.19(e), after an initial bond redetermination, a request for a subsequent bond rede-termination shall be made in writing and shall be considered only upon a showing that the alien’s circum-stances have changed materially since the prior bond redetermination. See Bond/Custody for more informa-tion.

Also, for procedures in automatic stay cases where DHS intends to invoke an automatic stay of an IJ’s deci-sion ordering an alien’s release in any case in which a DHS official has ordered that the alien be held without bond or has set a bond of $10,000 or more, see Interim Operating Policies and Procedures Memorandum 06-03, Procedures for Automatic Stay Cases, dated October 31, 2006.

MOTIONS 131

D. MOTION TO WITHDRAW AS COUNSEL OF RECORD

1. Once a notice of appearance has been filed with the Immigration Court, a withdrawal or substitution of counsel may only be permitted by an Immigration Judge only upon an oral or written motion without a fee. 8 C.F.R. §1003.17(b).

2. Whether to grant a motion to withdraw as counsel is a matter left to the discretion of the Immigration Judge. It is suggested that the Immigration Judge use the common sense test to determine whether or not to grant a motion to withdraw.

a. The Immigration Judge should expect counsel to explain the reasons for the withdrawal, if the reasons in the motion are vague, in order to protect the rights of the alien. The Immigration Judge must develop a com-plete record.

b. A difference of opinion over direction of the case between counsel and the alien may be a valid reason to grant a motion for a withdrawal.

c. An alien failing to cooperate with an attorney in preparing his or her case may be a sufficient ground to grant a withdrawal.

3. An alien failing to keep his or her attorney apprized of his or her whereabouts and failing to appear for a hearing is probably also a valid reason to grant a withdrawal on a conditional basis. See Matter of Rosales, 19 I&N Dec. 655 (BIA 1988). Under these circumstances, a grant of withdrawal can be either conditional or un-conditional. Id. (alien failed to keep the INS or his attorney apprized of his whereabouts). The Board in Rosales stated that where an attorney asks to withdraw, his request should include evidence that he attempted to advise the respondent, at his last known address, of the date, time, and place of the scheduled hearing. Counsel should also provide the Immigration Judge with the respondent’s last known address, assuming it is more current than any address previously provided to the Immigration Judge. Unless these requirements have been met, a request to withdraw from representation should not be unconditionally granted since counsel is responsible for acceptance of service of documents pursuant to 8 C.F.R. §1292.5(a). Such precautions help insure that proper notice of a hearing is given and increase the likelihood that a respondent receives notice and appears for a scheduled hearing. If these steps have not been taken, counsel’s withdrawal should only be conditionally granted; i.e., granted for all purposes except for the receipt of an in absentia order.

4. If the Immigration Judge is convinced that the attorney has done all he or she can to contact his client and advise him or her of the hearing date and the consequences of failing to appear, then he or she can grant an unconditional withdrawal. However, if the Immigration Judge believes that the attorney could have done more to contact the alien, then he or she should grant a conditional withdrawal, requiring that the attorney accept service of documents, and perhaps be able to contact the alien.

5. If the withdrawal is granted, the Immigration Judge must again be aware of the need to protect the alien’s rights. The Immigration Judge should again advise the alien of the right to obtain counsel and that in fact it might be in their best interest to obtain counsel. [When a withdrawal of counsel is granted, the name of prior counsel must be deleted immediately from the CASE system.]

E. MOTIONS TO RECUSE

1. There are certain circumstances where recusal is warranted. The test is an objective one, such that an Im-migration Judge should recuse him or herself “when it would appear to a reasonable person, knowing all the relevant facts, that a judge’s impartiality might reasonably be questioned.” Operating Polices and Procedures Memorandum 05-02, Procedures For Issuing Recusal Orders In Immigration Proceedings, March 21, 2005. See also Liteky v. U.S., 510 U.S. 540 (1994); Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988); U.S. v. Winston, 613 F.2d 221 (9th Cir. 1980); Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044, 1052 (5th Cir. 1975).


2. The BIA has noted three instances that warrant recusal: (1) when the alien demonstrates that he was denied a constitutionally fair proceeding; (2) when the Immigration Judge has a personal bias stemming from an “ex-trajudicial” source; and (3) when the Immigration Judge’s judicial conduct demonstrates “such pervasive bias and prejudice.” Matter of Exame, 18 I&N Dec. 303, 305 (BIA 1982) (quoting Davis v. Board of Sch. Comm’rs of Mobile County, 517 F.2d 1044 (5th Cir. 1975); see also Matter of R-S-H, 23 I&N Dec. 629, 638 (BIA 2003) (finding no indication in the record that the IJ had “prejudged the case or that his decision was motivated by issues outside the evidence of record”).

3. An Immigration Judge has an obligation not to recuse himself or herself based upon mere allegations or threats. Therefore, all requests for recusal shall be made on the record, or filed in writing, and supported by specific reasons why recusal is warranted, or alternatively, why the Immigration Judge is objective and not biased and therefore should go forward with the case. See Operating Polices and Procedures Memorandum 05-02, Procedures For Issuing Recusal Orders In Immigration Proceedings, March 21, 2005.

a. If, at any time prior to the hearing, an Immigration Judge issues a decision on a recusal matter, he or she must render it in writing and serve it upon the parties to ensure that the parties have sufficient notice that their hearing will be rescheduled with another IJ. The written decision must contain a well-reasoned opinion ex-plaining the circumstances and legal reasoning behind either the grant or the denial of the recusal. Moreover, the judge must issue a written decision in every case, regardless if the recusal was sua sponte or predicated upon a motion by one of the parties. Simple form or blanket orders will not suffice unless the immigration judge had a role in the case as a DHS attorney or private attorney. In that case, the order shall simply state that the IJ had a role in the case as a DHS attorney or private attorney. Operating Polices and Procedures Memorandum 05-02, Procedures For Issuing Recusal Orders In Immigration Proceedings, dated March 21, 2005.

b. There may be circumstances where the grounds for a recusal may not become apparent until the actual hearing. In these situations, the judge must go on record and issue an oral decision describing the reasons be-hind the grant or denial of the recusal motion. The decision must contain a well-reasoned opinion explaining the circumstances and legal reasoning behind either the grant or the denial of the recusal. Operating Polices and Procedures Memorandum 05-02, Procedures For Issuing Recusal Orders In Immigration Proceedings, March 21, 2005.

F. MOTIONS TO CHANGE VENUE

1. Venue lies at the Immigration Court where the charging document is filed by the Service. 8 C.F.R. §§1003.14(a), and 1003.20(a).

2. The Immigration Judge, for good cause shown, may upon his or her discretion, change venue only upon motion by one of the parties. 8 C.F.R. §1003.20(b); Matter of Dobere, 20 I&N Dec. 188 (BIA 1990) (regula-tions authorize Immigration Judge to direct change of venue in exclusion, deportation, and removal cases).

3. Good cause for change of venue is determined by balancing the relevant factors affecting fundamental fair-ness, including administrative convenience, expeditious treatment of the case, location of witnesses, and cost of transporting witnesses to new location. Matter of Rahman, 20 I&N Dec. 480 (BIA 1992); Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986).

4. In exclusion cases, the place of interrupted entry into the United States may have little relevance to the venue of the hearing. Matter of Rahman, 20 I&N Dec. 480 (BIA 1992). An Immigration Judge may not change venue without giving the Service an opportunity to respond.

5. While the applicant’s place of residence may be relevant, it may be outweighed by demonstration that the DHS would be prejudiced by such a change of venue. Matter of Rahman, 20 I&N Dec. 480 (BIA 1992).

MOTIONS 133

6. The convenience of counsel may also be relevant, but this factor may be outweighed by the availability of experienced counsel in the area of detention and by prejudice to the DHS. Matter of Rahman, 20 I&N Dec. 480 (1992).

7. The Immigration Judge may grant a change of venue only after the other party has been given notice and an opportunity to respond to the motion to change venue. 8 C.F.R. §1003.20(b); Matter of Rahman, 20 I&N Dec. (BIA 1992).

8. No change of venue shall be granted without identification of a fixed street address, including city, state and ZIP code, where the respondent/applicant may be reached for further hearing notification. 8 C.F.R. §1003.20(c).

9. Before a change of venue is granted, the alien should plead to the charging document. See Matter of Rivera, 19 I&N Dec. 688 (BIA 1988). In addition, the Immigration Judge should attempt to resolve the issue of deportability or inadmissibility, and determine what forms of relief will be sought. The Immigration Judge may set a date certain by which the relief applications, if any, must be filed with the sending court, and state on the record that failure to comply with the filing deadline will constitute abandonment of the relief applica-tions and may result in the Immigration Judge rendering a decision on the record as constituted. A copy of the asylum application submitted to support a motion for change of venue is not a definitive filing. The actual filing must occur in open court, at the court to which the case is transferred. The warnings for filing frivolous applications for asylum must be given orally and in writing to the alien at the time of filing in front of you. (FORM U-9).

10. The mere submission of a motion for a change of venue does not relieve an alien or his or her attorney from the responsibility to attend a hearing of which they have been given notice. It may not be assumed that the motion will be granted. Matter of Patel, 19 I&N Dec. 260 (BIA 1985).

11. Other factors to be considered in determining a change of venue include: (1) nature of evidence and its importance to the alien’s claim; (2) whether the request is due to unreasonable conduct on the alien’s part; and (3) the number of prior continuances granted. Matter of Seren, 15 I&N Dec. 590 (1976).

12. The respondent’s request for change of venue to present expert witness testimony was properly denied where the respondent made no attempt to submit an offer of proof related to the witness, identity, qualifica-tions, and testimony, or to state his opinion by way of an affidavit to the Immigration Judge. Matter of Bader, 17 I&N Dec. 525 (BIA 1980).

13. For additional guidance, see Operating Policy and Procedure Memorandum 01-02, Changes of Venue, October 9, 2001.

G. MOTION FOR CONTINUANCE

1. The Immigration Judge may grant a motion for a reasonable continuance, either at his or her own instance or for good cause shown, upon application by the alien or the Service. 8 C.F.R. §§1003.29.

2. A continuance may be requested at a master calendar hearing, individual calendar hearing or at any time during the pendency of the proceedings.

3. Local operating procedures may include a requirement for the submission of applications for continuances of a scheduled hearing. Sometimes they will require the submission of a written motion, when time permits. A sudden medical or other emergency, or unusual circumstance may justify a telephone request to the Immi-gration Court for such a continuance to be made, but that may also depend on the existence of Local Operat-ing Procedures.

4. The sound discretion of the Immigration Judge to grant or deny requests for continuances is very broad. An Immigration Judge may grant a continuance only for “good cause” shown.


5. The issue for the Immigration Judge is whether the alien would be prejudiced by the denial of a continu-ance. The courts are divided on how liberally an Immigration Judge should exercise discretion in granting a continuance. Baires v. INS, 856 F.2d 89 (9th Cir. 1988) (holding that the insistence upon expeditiousness in the face of a justifiable request for delay can render the alien’s statutory rights merely an empty formality); Molina v. INS, 981 F.2d 14 (lst Cir. 1992) (Immigration Judge has broad legal power to decide whether to grant or deny a continuance); Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983) (alien must establish by full and specific articulation of the facts involved or evidence which he or she would have presented, that the denial caused actual prejudice and harm and materially affected the outcome of the case).

6. Situations under a which a continuance may be warranted:

a. Attorney recently retained and not familiar with the case.

b. To obtain witnesses or documents crucial to the case.

c. Visa petition pending, which if approved will dispose of the case.

d. Pending FOIA request (but remember, no right of discovery).

e. DHS does not have “A” file.

f. Serious illness or death of alien or attorney.

7. A motion for continuance based upon an asserted lack of preparation and request for additional time must be supported, at a minimum, by a reasonable showing that the lack of preparation occurred despite a diligent effort to be ready to proceed. Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983).

8. Parties must appear unless the motion has been granted. Matter of Rivera, 19 I&N Dec. 688, 690 (BIA 1988); Matter of Patel, 19 I&N Dec. 260 (BIA 1985).

H. MOTION TO WAIVE THE PRESENCE OF THE PARTIES

The Immigration Judge may for good cause, and consistent with section 240(b) of the Act, waive the presence of the alien at a hearing when the alien is represented or when the alien is a minor child at least one of whose parents or whose legal guardian is present. When it is impracticable by reason of an alien’s mental incompe-tency for the alien to be present, the presence of the alien may be waived provided that the alien is repre-sented at the hearing by an attorney or legal representative, a near relative, legal guardian or friend. 8 C.F.R. §1003.25(a).

II. MOTIONS AFTER ENTRY OF A DECISION

A. MOTIONS TO RECONSIDER

1. Motions to reconsider and motions to reopen are separate and distinct motions with different requirements. A motion to reconsider requests that the original decision be reexamined in light of additional legal argu-ments, a change of law, or an argument or aspect of the case that was overlooked. Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002); Matter of Cerna, 20 I&N Dec. 399 (BIA 1991).

2. The Immigration Judge may reconsider the grant of any discretionary relief before it becomes final. Matter of Vanisi, 12 I&N Dec. 616 (BIA 1968).

3. A motion to reconsider must specify the errors of law or fact in the previous order and must be supported by pertinent authority. INA §240(c)(6)(C); 8 C.F.R. §§1003.23(b)(2); Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006).

4. Evidence submitted in support of a motion to reconsider must establish a prima facie case that the respon-dent is eligible for the relief sought. Matter of Heidari, 16 I&N Dec. 203 (BIA 1977).

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5. A motion to reconsider a decision rendered by an Immigration Judge that is pending when an appeal is filed with the Board, or that is filed subsequent to the filing with the Board of an appeal from the decision sought to be reconsidered, may be deemed by the Board to be a motion to remand the decision for further proceedings before the Immigration Judge from whose decision the appeal was taken. 8 C.F.R. §1003.2.

6. An alien may file one motion to reconsider a decision that he is removable from the United States. INA §240(c)(6)(A); 8 C.F.R. §1003.23(b); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

a. An alien may not seek reconsideration of a decision denying a previous motion to reconsider. 8 C.F.R. 1003.23(b)(2).

b. The motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, deportation or exclusion. INA §240(c)(6)(B); 8 C.F.R. §§1003.23(b)(1); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

c. A motion to reconsider a decision of the Board must be filed not later than 30 days after the mailing of the decision. 8 C.F.R. 1003.2(b)(2); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

7. A motion to reconsider a decision of the BIA must include the following: (1) an allegation of material or factual legal errors in the prior decision that is supported by pertinent authority; (2) in the case of an affir-mance without opinion (AWO), a showing that the alleged errors and legal arguments were previously raised on appeal and a statement explaining how the Board erred in affirming the IJ’s decision under the AWO regu-lations; and (3) if there has been a change in law, a reference to the relevant statute, regulation, or precedent and an explanation of how the outcome of the Board’s decision is materially affected by the change; Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006).

B. MOTIONS TO REOPEN

1. Motions to reconsider and motions to reopen are separate and distinct motions with different requirements. A motion to reopen seeks to reopen proceedings so that new evidence can be presented and a new decision entered on a different factual record, normally after a further evidentiary hearing. Matter of Cerna, 20 I&N Dec. 399 (BIA 1991).

2. A party seeking reopening bears a heavy burden because motions for reopening are disfavored. Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).

3. There is a need for strict compliance with the regulations. INS v. Jong Ha Wang, 450 U.S. 139 (1981) (mo-tion to reopen to apply for suspension of deportation denied where the allegations of hardship were conclu-sory and unsupported by affidavit).

4. In general, a motion to reopen shall state new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. INA §240(c)(7)(B); 8 C.F.R. §1003.2(c)(1); INS v. Wang, 450 U.S. 139 (1981) (unsupported statements by counsel or the alien in the mo-tion itself have no evidentiary value); Matter of Barrera, 19 I&N Dec. 837 (BIA 1989); Wolf v. Boyd, 238 F.2d 249 (9th Cir. 1957), cert. denied, 353 U.S. 936 (1957); Matter of Escalante, 13 I&N Dec. 223 (BIA 1969) (denied for lack of supporting evidence showing eligibility for any relief).

5. A motion to reopen can also be filed if there is new law or intervening circumstances that might change the result in the case. INS v. Rios-Pineda, 471 U.S. 444 (1985); Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007); Matter of X-GW-, 22 I&N Dec. 71 (BIA 1998), superceded in Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002) (withdrawing policy of granting untimely motions to reopen by applicants claiming eligibility for asy-lum based solely on coercive population control policies).

6. A motion to reopen will not be granted unless the Immigration Judge is satisfied that the evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. 8 C.F.R. §§1003.23(b)(3); INS v. Wang, 450 U.S. 139 (1981); Matter of Coehlo, 20 I&N Dec. 464


(BIA 1992); Matter of Barrera, 19 I&N Dec. 837 (BIA 1989); Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972); Matter of Lam, 14 I&N Dec. 98 (BIA 1972).

7. A motion to reopen will not be granted for the purpose of providing the alien an opportunity to apply for any form of discretionary relief if the alien’s rights to make such application were fully explained to him or her by the Immigration Judge and he or she was afforded an opportunity to apply at the hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. 8 C.F.R. §§1003.23(b)(3); Matter of Barrera, 19 I&N Dec. 837 (1989).

8. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompa-nied by the appropriate application for relief and all supporting documentation. 8 C.F.R. §§1003.23(b)(3), 1208.4(b)(3)-(4). But see Matter of Yewondwosen, 21 I&N Dec. 1025 (BIA 1997) (holding that where an alien has not strictly complied with 8 C.F.R. §3.2(c)(1) (1997) by having failed to submit an application for relief in support of a motion to reopen or remand, and the INS affirmatively joins the motion, the BIA or an Immigration Judge may still grant the motion in the interests of fairness and administrative economy). Fur-ther, an alien seeking to reopen proceedings to establish that a conviction has been vacated bears the burden of proving that the conviction was not vacated solely for immigration purposes. Matter of Chavez-Martinez, 24 I&N Dec. 272 (BIA 2007).

9. An alien must show prima facie eligibility for the requested relief and that relief is warranted in the exer-cise of discretion. INS v Abudu, 485 U.S. 94 (1988); INS v. Wang, 450 U.S. 139 (1981); Matter of C-C-, 23 I&N Dec. 899 (BIA 2006) (finding no prima facie showing of relief in alien’s motion to reopen based on forced sterilization practices in China where evidence and country information do not establish forced sterili-zation of other Chinese nationals with foreign-born children returning to the alien’s home province); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992); Matter of Barrera, 19 I&N Dec. 837 (1989); Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir. 1985) (could properly deny motion to reopen if it did not present prima facie case); Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir.1985) (reopening to apply for asylum improperly denied since there was an adequate prima facie showing which required a hearing); Marquez-Medina v. INS, 765 F.2d 673 (7th Cir. 1985) (same; suspension of deportation); Samini v. INS, 714 F.2d 992 (9th Cir. 1983) (prima facie showing of eligibility based on totality of circumstances warranting hearing); Matter of Escobar, 18 I&N Dec. 412 (BIA 1983) (no prima facie showing of eligibility for suspension of deportation or asylum); Matter of Patel, 16 I&N Dec. 600 (BIA 1978) (no prima facie showing of hardship where conclusory asser-tions of hardship insufficient). A prima facie showing has been described as proof sufficiently strong to suf-fice on its own until it is contradicted or overruled by other evidence. Conclusory and conjectural allegations are insufficient to establish eligibility for reopening. Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), aff’d, 692 F.2d 595 (9th Cir. 1982); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972).

10. A prima facie showing of apparent eligibility entails statutory eligibility and that the relief may be war-ranted as a matter of discretion. INS v. Wang, 450 U.S. 139 (1981); INS v. Bagamasbad, 429 U.S. 24 (1976); Matter of Reyes, 18 I&N Dec. 249 (BIA 1982); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), aff’d, 692 F.2d 595 (9th Cir. 1982); Matter of Lett, 17 I&N Dec. 312 (BIA 1980); Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980); Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979) (discretion clearly unwar-ranted since applicant was serving sentence for recent murder of wife); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972); Matter of Lam, 14 I&N Dec. 98 (BIA 1972).

11. Equities acquired after a final order of deportation may be given less weight than those acquired before the alien was found deportable. Matter of Correa, 19 I&N Dec. 130, (BIA 1984). But see Matter of Rodarte, 21 I&N Dec. 150 (BIA 1996) (motion to reopen granted and remanded to Immigration Judge for a hearing on adjustment of status and 212(c) applications; the new evidence requirement for reopening was satisfied by the presentation of equities acquired since respondent’s deportation hearing).

12. Even if a prima facie case of apparent eligibility is shown, the motion to reopen can be denied in the exer-cise of discretion. 8 C.F.R. §1003.23(b)(3); INS v. Rios-Pineda, 471 U.S. 444 (1985) (Board has broad dis-

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cretion to deny reopening even if a prima facie case of eligibility shown); Matter of Reyes, 18 I&N Dec. 249 (BIA 1982).

a. The grant of reopening or reconsideration is a matter of discretion. 8 C.F.R. §1003.23; Greene v. INS, 313 F.2d 148 (9th Cir. 1963), cert. denied, 374 U.S. 828 (1963) (no statute requires reopening or fixes the condi-tions on which it is to be granted).

b. The alien must be eligible for reopening as a matter of discretion. If he or she failed to surrender to the INS for deportation, the motion can be denied as a matter of discretion. See Matter of Barocio, 19 I&N Dec. 255 (BIA 1985). But see In re Zmijewska, 24 I&N Dec. 87 (BIA 2007) (holding that an alien is not barred from discretionary relief for failing to depart under section 240B(d)(1) where alien through no fault of their own was unaware of a voluntary departure order or was physically unable to depart within the time granted).

c. A motion may be denied in the exercise of discretion because of adverse circumstances not offset by coun-terbalancing equities, without otherwise addressing statutory eligibility for the relief being sought. INS v. Wang, 450 U.S. 139 (1981); INS v. Abudu, 485 U.S. 94 (1988); INS v. Bagamasbad, 429 U.S. 24 (1976); Matter of Barocio, 19 I&N Dec. 255 (BIA 1985); Matter of Reyes, 18 I&N Dec. 249 (BIA 1982); Matter of Rodriguez-Vera, 17 I&N Dec. 105 (BIA 1979).

d. A motion to reopen can be denied on discretionary grounds alone where there are significant reasons for denying reopening. INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Phinpathya, 464 U.S. 183 (1984); INS v. Wang, 450 U.S. 139 (1981); INS v. Bagamasbad, 429 U.S. 24 (1976); Matter of Barrera, 19 I&N Dec. 837 (1989). The Attorney General has broad discretion to grant or deny motions to reopen. INS v. Doherty, 502 U.S. 314 (1992). Where the ultimate relief is discretionary, the Immigration Judge may conclude that he or she would not grant the relief in the exercise of discretion; therefore the moving party must establish that he or she warrants the relief sought as a matter of discretion. Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).

e. The deliberate flouting of the immigration laws is a very serious adverse factor in the exercise of discretion. Matter of Barocio, 19 I&N Dec. 255 (BIA 1985) (failure to report for deportation following notification by the INS).

13. An alien may file one motion to reopen proceedings (whether before the Board or the Immigration Judge) with limited exceptions relating to asylum and in absentia orders found at 1003.23(b)(4). INA §240(c)(7)(A); 8 C.F.R. §§1003.2(c)(2)-(3) and 1003.23(b)(1) and (4); Matter of Mancera, 22 I&N Dec. 79 (BIA 1998); Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998), superceded in Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002) (withdrawing policy of granting untimely motions to reopen by applicants claiming eligibility for asy-lum based solely on coercive population control policies)); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

14. A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of re-moval, deportation, or exclusion. INA §240(c)(7)(C)(i); 8 C.F.R. §§1003.2(c)(2), 1003.23(b)(1). An order becomes administratively final under one of three circumstances, whichever occurs first: (1) Appeal is waived by the parties at which time the order becomes administratively final immediately. Matter of Shih, 20 I&N Dec. 697 (1993); (2) It is administratively final when the time expires for filing an appeal; (3) When the BIA has dismissed an appeal that was timely filed.

a. There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving adversaries a fair opportunity to develop and present their respective cases. INS v. Abudu, 485 U.S. 94 (1988).

b. These limitations do not apply, however, to motions to reopen filed by the DHS in removal proceedings pursuant to INA §240. 8 C.F.R. §1003.23(b)(1).

c. These time and number limits on the filing of a motion to reopen likewise do not apply if the basis of the motion is:


• to rescind an order of deportation/removal entered in absentia pursuant to INA §242B(c)(3); INA §240(b)(5)(C)(ii); 8 C.F.R. §1003.23(b)(4)(iii); or

• to apply or reapply for asylum or withholding of deportation or removal and is based on changed country conditions arising in the country of nationality or the country to which removal, deportation or exclusion has been ordered, if such evidence is material and was not available and could not have been discovered or pre-sented at the previous proceeding. See also INA §240(c)(7)(C)(ii); 8 C.F.R. §§1003.2(c)(3)(ii) and 1003.23(b)(4)(i); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). If the original asylum application was denied based upon a finding that it was frivolous, then the alien is ineligible to file either a motion to reopen or re-consider, or for a stay of removal. 8 C.F.R. §1003.23(b)(4)(i); or

• agreed upon by all parties and jointly filed. 8 C.F.R. §1003.23(b)(4)(iv). Notwithstanding such agreement, the parties may contest the issues in a reopened proceeding. See 8 C.F.R. §1003.2(c)(3)(iii) (motions to re-open before Board of Immigration Appeals). DHS may not waive statutory bars to relief by joining in a mo-tion. An Immigration Judge may not reopen a matter for relief despite the fact that the parties have jointly moved in the face of a statutory bar. Former INA §242B; or

• filed by the DHS in removal proceedings pursuant to section 240 of the Act; or those motions filed by the Service in exclusion or deportation proceedings, when the basis of the motion is fraud in the original proceed-ing or a crime that would support termination of asylum in accordance with 8 C.F.R. §1208.22. See 8 C.F.R. §§1003.2, 1003.23(b)(1), 1208.24(f).

15. An alien in removal proceedings will not be prima facie eligible for voluntary departure, cancellation of removal, and/or adjustment of status for a period of ten years, if he or she received the section 240 warnings and failed to appear for the hearing absent exceptional circumstances. INA §240(b)(7). An alien in removal proceedings who fails to depart as required under an order of voluntary departure shall be subject to a civil penalty of not less than $1000 and not more than $5000, and will not be prima facie eligible for voluntary departure, cancellation of removal, and/or adjustment of status for a period of ten years (specifically, sections 240A, 245, 248, 249). However, these restrictions on relief do not apply to relief under §240A or §245 on the basis of a petition filed by a VAWA self-petitioner, or a petition filed under §240A(b)(2), or under §244(a)(3) (as in effect prior to March 31, 1997), if the extreme cruelty or battery was at least one central reason for the alien’s overstaying the grant of voluntary departure. INA §240B(d)(2). The statute requires that the “order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.” Section 240B(d)(3) of the Act. Section 240B(d) of the Act does not refer to an excuse based on “exceptional circum-stances” for failing to timely depart. Section 240B(d) of the Act also does not refer to limitations on discre-tionary relief for failure to report for removal as required. However, proposed rules published September 4, 1998 [63 Fed. Reg. 47208] do seek to add a 10-year bar on relief, including asylum, for failure to timely sur-render for removal absent exceptional circumstances. See also In re Zmijewska, 24 I&N Dec. 87 (BIA 2007) (holding that the BIA lacks authority to apply an “exceptional circumstances” or other general equitable ex-ception to the penalty provisions for failure to depart within the time period afforded for voluntary departure).

16. The BIA has held that an alien who during the pendency of a period of voluntary departure, files a motion to reopen in order to apply for suspension of deportation is statutorily ineligible for suspension pursuant to former section 242B(e)(2) of the Act, if he or she subsequently remains in the United States after the sched-uled date of departure, provided the notice requirements of the section have been satisfied and there is no showing that failure to depart timely was due to “exceptional circumstances” as provided in section 242B(f)(2) of the Act. Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), aff’d, 141 F.3d 953 (9th Cir. 1998); Mardones v. McElroy, 197 F.3d 619 (2d Cir. 1999) (citing Shaar with approval). However, in Azarte v. Ashcroft, the Ninth Circuit overruled its decision in Shaar, determining that Shaar has been superceded by statute (post-IIRIRA cases) based on the fact that Shaar relied on a pre-IIRIRA voluntary departure statutory provision, since repealed; neither the voluntary departure statute nor the regulations on motions to reopen un-der prior law had time limits; and prior voluntary departure grants were for much longer periods of time. Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005) (voluntary departure period tolled in removal proceedings where motion to reopen filed with BIA within the voluntary departure period, with a request for a stay);

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Sidikhouya v. Gonzales, 407 F.3d 950 (8th Cir. 2005) (abuse of discretion to apply Matter of Shaar in post-IIRIRA case where motion filed prior to expiration of voluntary departure period granted by BIA, but period expired prior to ruling by BIA); see also Kanivets v. Gonzales, 424 F.3d 330 (3d Cir. 2005) (rejecting Shaar post-IIRIRA); Ugokwe v. U.S. Attorney General, 453 F.3d 1325 (11th Cir. 2006) (rejecting Shaar post-IIRIRA); but see Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006) (rejecting Azarte); Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), rehearing and rehearing en banc denied (July 26, 2006), cert. denied, 127 S.Ct 1874 (March 26, 2007) (rejecting Azarte). NOTE: The Third Circuit has rejected Matter of Shaar even in pre-IIRIRA cases, finding that a motion to reopen filed within the voluntary departure period is an “exceptional circumstance” in failure to depart. Barrios v. Attorney General, 399 F.3d 272 (3d Cir. 2005).

More recently, the Board has held that an alien has not failed to voluntarily depart under Section 240B(d)(1) of the Act when the alien, through no fault of her own, was unaware of the voluntary departure order or was physically unable to depart within the time specified. Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007). (Alen not advised of the voluntary departure period by her attorney.) Further, an alien who fails to post the voluntary departure bond required by §240B(b)(3) of the Act is not subjuect to the penalties for failure to de-part within the time specified for voluntary departure. Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006).

17. A motion to reopen to apply for asylum must comply with additional requirements and reasonably explain the alien’s failure to do so during the proceedings. 8 C.F.R. §1208.4(b)(3)-(4); Matter of R-R-, 20 I&N Dec. 547 (1992); see also INS v. Doherty, 502 U.S. 314 (1992); INS v. Wang, 450 U.S. 139 (1981); Matter of Lam, 14 I&N Dec. 98 (BIA 1972); INS v. Abudu, 485 U.S. 94 (1988); Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA 1981), aff’d, 692 F.2d 595 (9th Cir. 1982); Matter of Jean, 17 I&N Dec. 100 (BIA 1979).

Motions based on a request for asylum, withholding, and/or CAT relief are not subject to the same time and numerical limitations set forth in 8 C.F.R. §1003.23(b)(1), where the motion is premised on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evi-dence is material and was not available and could not have been discovered or presented at the previous pro-ceeding. 8 C.F.R. §1003.23(b)(4)(i). Stays are not automatic for this type of motion to reopen, though the alien may request a stay, and if granted by the IJ, cannot be removed pending disposition of the motion. Id. NOTE: If the original asylum application was denied based upon a finding that it was frivolous, then the alien is ineligible to file either a motion to reopen or reconsider, or for a stay of removal.

18. An alien whose case was administratively closed pursuant to the ABC settlement terms can obtain reopen-ing of proceedings even where no request has been made to reinstate appeal before the BIA or to recalendar case before an Immigration Judge. Matter of Gutierrez-Lopez, 21 I&N Dec. 479 (BIA 1996).

Under prior section 212(c), certain lawful permanent residents who had departed the U.S. and were seeking readmission could apply for a waiver of inadmissibility in certain circumstances. This waiver was later lim-ited by provisions of IMMACT 1990 and AEDPA §440(d); and was eventually repealed by IIRIRA as of April 1, 1997, when it was replaced with §240A(a) cancellation of removal.

In Deportation Proceedings: Motion to Reopen under Soriano Rule

a. As stated above, the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), enacted on April 24, 1996, significantly restricted the availability of section 212(c) relief. Under the Attorney General’s deci-sion in Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), the AEDPA restrictions on section 212(c) relief were held to apply to all 212(c) applications filed prior to the April 24, 1996, enactment date.

However, the Attorney General also directed the Immigration Judges to reopen cases upon petition filed by aliens who conceded deportability prior to April 24, 1996, for the limited purpose of allowing them to contest deportability. See 8 C.F.R. §1212.3(g) (Soriano rule). This rule applies to both plea agreements and convic-tions following a trial. The deadline to file a motion to reopen under the Soriano rule was July 23, 2001. See 8 C.F.R. §1003.44(f) (2004).

In Removal Proceedings: Special Motion to Reopen under 8 C.F.R. §1003.44.


b. In 2001, the U.S. Supreme Court issued INS v. St. Cyr, 533 U.S. 289 (2001). In St. Cyr, aliens in removal proceedings who received convictions through plea agreements, and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect were found to be eligible for 212(c) relief. In 2004, regulations were promulgated to reflect the Court’s decision in St. Cyr.

Individuals who pleaded guilty or nolo contendre to certain crimes before April 1, 1997, may pursue a special motion to reopen to seek section 212(c) relief under the provisions of 8 C.F.R. §1003.44. This motion is available to certain eligible aliens who were previously lawful permanent residents, who are subject to an administratively final order of deportation or removal, and who are eligible to apply for relief under former section 212(c) of the Act and 8 C.F.R. §1212.3 with respect to convictions obtained by plea agreements reached prior to April 1, 1997. NOTE: The deadline to file a special motion under this section was April 26, 2005, and an eligible alien is limited to one special motion under this section. See 8 C.F.R. §1003.44(h).

The alien has the burden of establishing eligibility for relief under this section. 8 C.F.R. §1003.44(b). General eligibility requirements that alien must establish:

1. Prior lawful permanent resident status and is now subject to a final order of deportation or removal;

2. Agreed to plead guilty or nolo contendre to an offense rendering the alien deportable or removable, pursu-ant to a plea agreement made before April 1, 1997;

3. Had seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal; and

4. Is otherwise eligible to apply for section 212(c) relief under the standards that were in effect at the time the alien’s plea was made, regardless of when the plea was entered by the court.

See 8 C.F.R. 1003.44(b)(1)-(4).

There are certain procedural requirements for filing a motion under this section. The motion must be filed with the IJ or BIA, whichever last held jurisdiction. The alien is required to submit a copy of the Form I-191 application, and supporting documents. The motion must contain the notation “special motion to seek section 212(c) relief.” DHS has 45 days from the date of the filing of the motion to respond. No filing fee is required for this motion, although if it is later granted, and the alien has not previously filed an application for section 212(c) relief, the alien will be required to submit the appropriate fee receipt at the time the alien files the Form I-191 with the immigration court. In addition, the filing of a motion under this section has no effect on the time and number limitations for motions to reopen or reconsider that may be filed on grounds unrelated to section 212(c). See generally 8 C.F.R. §1003.44(f)-(i).

19. Pursuant to section 240A(d)(1) of the Act, a motion to reopen proceedings for consideration or further consideration of an application for relief under section 240A(a) (cancellation of removal for certain perma-nent residents) or 240A(b) (cancellation of removal and adjustment of status for certain nonpermanent resi-dents) may be granted only if the alien demonstrates that he or she was statutorily eligible for such relief prior to the service of a notice to appear, or prior to the commission of an offense referred to in section 212(a)(2) of the Act that renders the alien inadmissible or removable under sections 237(a)(2) or (a)(4) of the Act, which-ever is earliest. 8 C.F.R. §1003.23(b)(3).

20. A properly filed motion to reopen for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted in the exercise of discretion, notwithstanding the pendency of a visa petition filed on the alien’s behalf, where: (1) the motion to reopen is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other procedural grounds; (4) clear and convincing evidence is presented indicating a strong likelihood that the marriage is bona fide; and (5) the Service does not oppose the motion or bases its opposi-tion solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992) (holding that motions to reopen to apply for adjustment of status under section 245 of the Act will not be granted without an approved visa petition on the

MOTIONS 141

alien’s behalf). Matter of Velarde, 23 I&N Dec. 253 (BIA 2002) (modifying Matter of H-A-, 22 I&N Dec. 728 (BIA 1999), and Matter of Arthur, supra). See also Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006) (de-termining that Matter of Velarde permits granting of a motion to reopen in these circumstances as a matter of discretion, unless barred on procedural grounds); Malhi v. INS, 336 F.3d 989 (9th Cir. 2003) (citing Velarde with approval, upholding denial of motion for failure to make prima facie showing of valid marriage).

21. An Immigration Judge may reinstate voluntary departure in a removal proceeding that has been reopened for a purpose other than solely making an application for voluntary departure if reopening was granted prior to the expiration of the original period of voluntary departure. In no event can the total period of time, includ-ing any extension, exceed 120 days or 60 days as set forth in section 240B of the Act. 8 C.F.R. §1240.26(h). Note: In removal proceedings, there are statutory and regulatory periods prescribed for voluntary departure. There is no specific statutory or regulatory authority for either an Immigration Judge or the BIA to extend the time of voluntary departure. See 8 C.F.R. §1240.26(f). The BIA decision in Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), which permitted tolling of the voluntary departure period on appeal, was rendered in the absence of such periods, and was found to be superceded by statute in Matter of A-M-, 23 I&N Dec. 737 (BIA 2005).

22. An alien ordered removed in absentia may rescind the order:

a. upon a motion to reopen filed within 180 days after the date of the order of removal or deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances; OR

b. upon a motion to reopen filed at any time if the alien demonstrates:

(1) that he or she did not receive notice in accordance with INA §239(a)(1) or (2) [removal proceedings], INA §242B(a)(2) [deportation proceedings], or;

(2) the alien demonstrates that he or she was in Federal or State custody and the failure to appear was through no fault of the alien.

See Former INA §242B(c)(3) [OSC]; INA §240(b)(6)(C) [NTA]; 8 C.F.R. §1003.23(b)(4)(ii) [removal pro-ceedings] and 1003.23(b)(4)(iii) [deportation/exclusion proceedings].

23. A motion to rescind an in absentia order of deportation in exclusion proceedings shall be denied unless the alien provides a reasonable explanation for his or her failure to appear. See Matter of S-A-, 21 I&N Dec. 1050 (BIA 1998) (holding that traffic is not a reasonable cause to warrant the reopening of exclusion proceed-ings); compare with De Jiminez v. Ashcroft, 370 F.3d 783 (8th Cir. 2004) (finding that BIA abused its discre-tion in refusing to consider the denial of alien’s motion to reopen where alien had difficulty locating building and was caring for a sick child given the fact that alien gave “a multitude of factors contributing to her failure to appear”).

24. For deportation proceedings where notice of the hearing was served or attempted service was made prior to June 13, 1992, and in cases where the notice requirements were not followed in section 242B of the Act: Where an alien can demonstrate reasonable cause for his or her failure to appear, section 242(b) of the Act guarantees his right to a hearing. A prima facie showing of eligibility for relief is not a prerequisite to reopen-ing exclusion proceedings following an in absentia hearing. Matter of Ruiz, 20 I&N 91 (BIA 1989).

25. The BIA held that Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), aff’d, 141 F.3d 953 (9th Cir. 1998) is not applicable to an alien who was ordered deported at an in absentia hearing and has therefore not remained beyond a period of voluntary departure; consequently, the proceedings may be reopened upon the filing of a timely motion showing exceptional circumstances for failure to appear. Matter of Singh, 21 I&N Dec. 998 (BIA 1997); Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989) (in exclusion case, motion to reopen in absentia hearing granted upon a showing that his failure to appear was caused by illness; did not need to make a prima facie showing of eligibility for relief on the merits).


26. The proper filing of the motion to reopen an order entered in absentia stays the removal or deportation of the alien pending disposition of the motion by the Immigration Judge. INA §242B(c)(3) (prior); INA §240(b)(5)(C) and 240(c)(7)(C)(iii); 8 C.F.R. §§3.23(b)(4)(iii)(C) (2000) 1003.6(b), 1003.23(b)(4)(iii)(C) (2007) and §242.22 (1997). The IIRIRA added the words “by the immigration judge.” Compare prior INA §242B(c)(3) with INA §240(b)(5)(C). Before the IIRIRA’s amendment, the filing of a motion to reopen an in absentia deportation order stayed the order pending a decision by the Board as well as pending a decision by the Immigration Judge. Matter of Rivera-Claros, 21 I&N Dec. 232 (BIA 1996). The regulations state that there is no automatic stay of removal or deportation pending the Board’s determination of other motions to reopen. 8 C.F.R. §§1003.2(f) and 1003.6(b). A respondent appealing an Immigration Judge’s denial of a mo-tion to reopen can file a request for a stay with the Board. Some courts have held, however, that failure to grant a stay pending determination of a motion to reopen may raise constitutional concerns. See Castandea-Suarez v. INS, 993 F.2d 142 (7th Cir. 1993); Gutierrez-Rogue v. INS, 954 F.2d 769 (D.C. Cir. 1992).

27. The term “exceptional circumstances” refers to exceptional circumstances (such as serious illness of the alien, or serious illness or death of the alien’s spouse, child or parent, but not including less compelling cir-cumstances) beyond the control of the alien. INA §240(e)(1); 8 C.F.R. §1003.23(b)(4)(iii)(A)(1).

The ineffective assistance of counsel constitutes “exceptional circumstances” excusing the failure to appear. Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996). Immigration Judge’s should always read and issue all warn-ings, advisals, dates for applications as well as the penalties that apply should applications not be timely filed directly to the alien through an interpreter so that there is no question in the mind of the alien what must be done in his or her case. This eliminates many “ineffective assistance” issues that may otherwise result in re-mands.

a. An alien seeking to reopen in absentia proceedings based on his or her unsuccessful communications with his or her attorney did not establish exceptional circumstances pursuant to section 242B(c)(3)(A) of the Act when she failed to satisfy all of the requirements for a claim of ineffective assistance of counsel as set out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Matter of Rivera-Claros, 21 I&N Dec. 599 (BIA 1996); cf. also Matter of A-A-, 22 I&N Dec. 140 (BIA 1998) (a claim of ineffective assistance of counsel does not con-stitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation on the basis of exceptional circumstances); Matter of Lei, 22 I&N Dec. 113 (BIA 1998) (same).

A motion to reopen or reconsider based upon a claim of ineffective assistance of counsel requires:

(1) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representa-tions counsel did or did not make to the respondent in this regard;

(2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him or her and be given an opportunity to respond, and;

(3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not.

Matter of Lozada 19 I&N Dec. 637, 639 (BIA 1988).

This legal framework was reaffirmed by the Board in Matter of Assaad, 23 I&N Dec. 553 (BIA 2003), in light of circuit court precedent and lack of direct ruling on the issue by the Supreme Court in an immigration context. Several circuits have upheld the Lozada requirements. See, e.g., Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000); Hernandez v. Reno, 238 F.3d 50 (1st Cir. 2001); Melkonian v. Ashcroft, 320 F.3d 1061 (9th Cir. 2003) (generally citing with approval, including requirement that prejudice be shown); Hamid v. Ashcroft, 336 F.3d 465 (6th Cir. 2003); Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) (requires affidavit regarding attorney conduct where facts are not plain on the record, and also prejudice must be shown); Da-kane v. U.S. Attorney General, 399 F.3d 1269 (11th Cir. 2005) (citing with approval, including requirement

MOTIONS 143

that prejudice must be shown); Hernandez-Moran v. Gonzales, 408 F.3d 496 (8th Cir. 2005); Zheng v. U.S. Dept. of Justice, 409 F.3d 43 (2d Cir. 2005); Gbaya v. US Attorney General, 342 F.3d 1219 (11th Cir. 2003) (holding that strict compliance with Lozada necessary to establish an ineffective assistance of counsel claim).

Some cases have considered limitations on the reach of Lozada. See, e.g., Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) (Lozada requirements “not sacrosanct,” substantial compliance may be sufficient); Saakian v. INS, 252 F.3d 21 (1st Cir. 2001) (agrees with 9th Cir. that requirements may not be “arbitrarily” applied); Lu v. Ashcroft, 259 F.3d 127 (3d Cir. 2001) (upholds Lozada requirements, but failure to file bar complaint not fatal if reasonably explained); Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (stating that alien need only show “plausible grounds” for relief with regard to prejudice requirement).

b. An alien’s failure to appear at his or her rescheduled deportation hearing due to his inability to leave his or her employment on a fishing vessel was not an “exceptional circumstance.” Matter of W-F-, 21 I&N Dec. 503 (BIA 1996).

28. A motion to reopen exclusion hearings on the basis that the Immigration Judge improperly entered an or-der of exclusion in absentia may be filed at anytime and must be supported by evidence that the alien had rea-sonable cause for his or her failure to appear. INA §212(a)(6)(B); 8 C.F.R. §1003.23(b)(4)(iii)(B).

29. Cases which have considered what constitutes “reasonable cause” for failure to appear include: Hernan-dez-Vivas v. INS, 23 F.3d 1557 (9th Cir. 1994); Maldonado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989); Matter of Nafi, 19 I&N Dec. 430 (BIA 1987). Remember that “reasonable cause” is different from “excep-tional circumstances” which are defined by statute. See Matter of S-A-, 21 I&N Dec. 1050 (BIA 1998).

30. A motion to reopen exclusion proceedings decided in absentia is properly granted where the applicants met the requirements for an ineffective assistance of counsel claim set in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). The attorney of record failed to give the applicants notice of their hearing. Matter of N-K and V-S-, 21 I&N Dec. 879 (BIA 1997).

C. COMMONALITIES OF MOTIONS TO REOPEN AND RECONSIDER

1. The Immigration Judge is authorized to reopen or reconsider his or her decision, on his or her own initia-tive, or upon motion by either party, at any time before jurisdiction has vested in the BIA through the filing of a notice of appeal or certification of the case to it. INA §240(c)(5)-(7) of the Act; 8 C.F.R. §§1003.23(b)(1) (2007) and 242.22 (1997).

2. Where the BIA dismisses an appeal from the decision of an Immigration Judge solely for lack of jurisdic-tion, without adjudication on the merits, the attempted appeal was nugatory and the decision of the Immigra-tion Judge remained undisturbed. Thereafter, if a motion is made to reopen or reconsider, there is no reason why the Immigration Judge should not adjudicate it as he does in other cases where there was no appeal from his or her prior order. Matter of Mladineo, 14 I&N Dec. 591, 592 (1974).

3. The Board’s power to reopen or reconsider cases sua sponte is limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations, where enforcing them might result in hardship. 8 C.F.R. §1003.2(a); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

4. Motions to reopen or reconsider are subject to the requirements and limitations set forth in 8 C.F.R. §§1003.23 (2007) and 242.22 (1997).

5. Motions to reopen or reconsider a decision of the Immigration Judge must be filed with the Immigration Court having administrative control over the Record of Proceedings (ROP). 8 C.F.R. §§1003.23(b)(1)(ii), 1003.31(a). The regulations create an exception for the filing of certain motions under NACARA and the LIFE Act Amendments. See 8 C.F.R. §1003.43. Such motions are to be adjudicated under applicable statutes and regulations governing motions to reopen. Id.


6. A motion is deemed filed when it is received at the BIA, irrespective of whether the alien is in custody. Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

7. A motion to reopen or reconsider must be in writing and signed by the affected party or the attorney or rep-resentative of record, if any, and submitted in duplicate if addressed to an Immigration Judge. 8 C.F.R. §1003.23(b)(1)(i)-(ii).

8. A motion to reopen or a motion to reconsider, and any submission made in conjunction with such motion must be in English or accompanied by a certified English translation. 8 C.F.R. §§1003.2(g)(1) and 1003.23(b)(1)(i).

9. Payment of the required fee may be waived by the Immigration Judge in any case in which the alien is un-able to pay the prescribed fee upon a showing of the inability to pay. 8 C.F.R. §1103.7(c) and 1003.24(d). To qualify for such waiver, the alien must submit an executed affidavit or unsworn declaration made pursuant to 28 U.S.C. §1746 substantiating the alien’s inability to pay the fee. 8 C.F.R. §1003.24(d). See also Matter of Alejandro, 19 I&N Dec. 75 (BIA 1984); Matter of Chicas, 19 I&N Dec. 114 (BIA 1984). If the request for a fee waiver is denied, the application or motion will not be deemed properly filed. 8 C.F.R. §1003.24(d). Pur-suant to Interim Operating Policies and Procedures Memorandum 06-01, Fee Waiver Form, June 28, 2006, fee waiver decisions must be in writing. For an example of a standard fee waiver order, see Attachment A to OPPM No. 06-01.

10. A motion to reopen or a motion to reconsider shall include proof of service on the opposing party of the motion and all attachments. 8 C.F.R. §§1003.2(g)(1) and 1103.5(a).

11. In general, the fee for filing a motion to reopen or reconsider is $110. 8 C.F.R. §1103.7(b)(2); 1003.8 (fees pertaining to the BIA’s jurisdiction); 1003.24 (fees pertaining to the Immigration Court’s jurisdiction). In accordance with 8 C.F.R. §1003.24(b)(2)(i)-(viii), a fee is not required for:

a. A motion to reopen based solely on an application for relief that does not require a fee;

b. A motion to reconsider that is based exclusively on a prior application for relief that did not require a fee;

c. A motion filed while proceedings are already pending before the Immigration Court;

d. A motion requesting only a stay of removal, deportation, or exclusion;

e. A motion to reopen a deportation or removal order entered in absentia if the motion is filed pursuant to sec-tion 242B(c)(3)(B) of the Act, as it existed prior to April 1, 1997, or section 240(b)(5)(C)(ii) of the Act, as amended;

f. Any motion filed by the DHS;

g. A motion agreed upon by all parties and jointly filed;

h. A motion filed under law, regulation, or directive that specifically does not require a filing fee.

12. A motion to reopen or reconsider, submitted with the required fee, may not be rejected as inadequate without a written adjudication. The written adjudication must sufficiently state the basis for the decision, so that an appellate tribunal can review it. Matter of Felix, 14 I&N Dec. 143 (1972); Matter of M-P-, 20 I&N Dec. 786 (BIA 1994).

13. If an alien files a motion asking for his or her case to be reopened or reconsidered while the case is on appeal, the BIA may deem it a motion to remand for further proceedings before the Immigration Judge from whose decision the appeal was taken. 8 C.F.R. §1003.2(c)(4).

MOTIONS 145

14. Motions to reopen or reconsider must be filed with the Immigration Court that has administrative control over the Record of Proceeding. 8 C.F.R. §1003.23(b)(1)(ii). A certificate of service shall accompany the mo-tion evidencing service on the opposing party. Id. If the moving party, other than the Service, is represented, a Form EOIR-28 must be filed with the motion. Id. The motion also must be accompanied by a fee receipt. Id. The Court may set and extend time limits for replies to motions to reopen or reconsider. 8 C.F.R. §1003.23(b)(1)(iii). The motion shall be deemed “unopposed” unless timely response is made; however, the Court’s decision to grant or deny the motion is discretionary. Id.

15. The Immigration Judge may set and extend time limits for replies to motions to reopen or reconsider. 8 C.F.R. §1003.23(b)(1)(iv).

16. A motion to reopen or reconsider shall be deemed unopposed unless a timely response is made. 8 C.F.R. §§1003.23(a) and (b). An unopposed motion may still be denied if the requisite showings are not made.

17. A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of deportation, exclusion, or removal proceedings subsequent to his or her departure from the United States. 8 C.F.R. §1003.2(d); Matter of Crammond, 23 I&N Dec. 179 (BIA 2001); Matter of Estrada, 17 I&N Dec. 187 (1979); Matter of Rangel-Cantu, 12 I&N Dec. 73 (BIA 1967), overruled in part by Matter of Ku, 15 I&N Dec. 712 (BIA 1976) (regarding Board’s jurisdiction over interlocutory appeals). Any departure from the United States, including the deportation or removal of a person who is the subject of removal, deportation or exclusion proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall con-stitute a withdrawal of such motion. 8 C.F.R. §1003.2(d); Matter of Palma, 14 I&N Dec. 486 (BIA 1973) (de-parture executed outstanding deportation order); Mansour v. Gonzales, 470 F.3d 1194 (6th Cir. 2006) (Board had no jurisdiction to grant respondent’s motion to reopen where respondent left the U.S. under a final depor-tation order). Some circuit courts have entertained motions to reopen made after the alien’s deportation on the ground that the alien’s departure was not legally executed. See Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981). Courts have held in the excepted case, the alien may be readmitted with the same status he or she held prior to departure, and will be permitted to pursue any administrative and judicial remedies to which he or she is entitled. Mendez v. INS, 563 F.2d 956 (9th Cir. 1977).

18. Motions to reopen or reconsider shall state whether the validity of the deportation, exclusion, or removal order has been or is the subject of any judicial proceeding and, if so, the nature and date thereof, the court in which the proceeding took place or is pending, and its result or status. 8 C.F.R. §§1003.2(e) and 1003.23(b)(1)(i); Matter of Wong, 13 I&N Dec. 258 (BIA 1969) (motion denied as insubstantial and dila-tory). In any case in which a deportation, or exclusion, or removal order is in effect, any motion to reopen or reconsider such order shall include a statement by or on behalf of the moving party declaring whether the sub-ject of the order is also the subject of any pending criminal proceeding under the Act, and if so, the status of that proceeding. Id.

19. If a motion to reopen or reconsider seeks discretionary relief, the motion shall include a statement by or on behalf of the moving party declaring whether the alien for whose relief the motion is being filed is subject to any pending criminal prosecution and, if so, the nature and current status of that prosecution. 8 C.F.R. §1003.2(e).

20. All fees for the filing of motions and applications in connection with proceedings before the Court are paid to the DHS. The Court does not collect fees. 8 C.F.R. §1003.24; 8 C.F.R. §103.7 (DHS requirements for filing of fees). If an individual files a motion to reopen or reconsider concurrently with an application for re-lief for which a fee is chargeable, the individual initially must pay only the fee required for the motion to re-open or reconsider, unless a fee waiver has been granted. 8 C.F.R. §1003.24(c)(2). The fee receipt shall ac-company the motion. Id. If the motion to reopen or reconsider is granted, the individual then must pay the fee required for the underlying application for relief to the DHS within the time specified by the Court, unless a fee waiver has been granted. Id.


21. If the motion is opposed, the Immigration Judge in ruling on the motion must state in writing, however briefly, the reasons for his or her decision. Matter of Correa, 19 I&N Dec. 130 (BIA 1984). The ruling on the motion shall be in written form fully explaining the reasons for the decision. See Matter of M-P-, 20 I&N Dec. 786 (BIA 1994).

22. The basis for denial of a motion to reopen or reconsider must be stated with specificity. Matter of Felix, 14 I&N Dec. 143 (BIA 1982); Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir. 1985) (must clearly articulate the factors considered and the basis for its discretionary determination). In exercising its discretion the court must show that it has considered all factors, both favorable and unfavorable, and must state its reasons and show proper consideration of all factors when weighing equities and denying relief.

D. MOTION FOR STAY OF DEPORTATION/REMOVAL

1. Except where a motion is filed pursuant to INA §240(b)(5)(C)(i) or (ii), or former 242B(c)(3), the filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case. 8 C.F.R. §§1003.2(f), 242.22 (1997). Execution of such decision shall proceed unless a stay of execution is specifically granted by the Board, the Immigration Court, or an authorized officer of the DHS. 8 C.F.R. §§1003.2(f), 1003.6(b), 1003.23(b)(1)(v) (2007), 242.22 (1997); Matter of Valiyee, 14 I&N Dec. 710 (BIA 1974). The Immigration Judge may stay deportation pending his or her determination of the motion and also pending the taking and disposition of an appeal from such determination. 8 C.F.R. §§242.22 and 243.4 (1997); Matter of Correa-Garces, 20 I&N Dec. 451 (BIA 1992); Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974) (BIA took case on certification and denied motion to reopen). The burden of proof for obtaining a stay of deportation is upon the alien who must show that there is a likelihood of success of the underlying basis for reopening.

2. There is no right to an evidentiary hearing on the merits of the motion. 8 C.F.R. §§1003.23(b) (“a motion to reopen shall state new facts that will be proven at a hearing to be held if the motion is granted”); INS v.Wang, 450 U.S. 139 (1981); Urbano de Malaluan v. INS, 577 F.2d 589 (9th Cir. 1980); see also Matter of Rivera, 21 I&N Dec. 599 (BIA 1996) (noting, in an ineffective assistance of counsel claim pursuant to Lozada, that there is a preference to make determinations on motions “to a great extent” on the documentary evidence in order to avoid an added burden on the parties and the court).

3. An alien who files a motion and submits the required fee, or a fee waiver, is entitled to an adjudication of the request. Matter of Felix, 14 I&N Dec. 143 (BIA 1972).

E. MOTION TO REMAND

1. Motions to remand are not expressly addressed by the Act or the regulations. Such motions are commonly addressed to the BIA. Motions to remand are an accepted part of appellate civil procedure and serve a useful function. Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).

2. A motion to reopen a decision rendered by an Immigration Judge that is pending when an appeal is filed, or that is filed while an appeal is pending before the Board, may be deemed a motion to remand for further pro-ceedings before the Immigration Judge from whose decision the appeal was taken. 8 C.F.R. 1003.2(c)(4).

3. The number and time limits do not apply to motions filed with the Board while an appeal is pending. A motion that asks the BIA to order the Immigration Judge to reopen his or her decision still can be made at any time until the BIA renders its decision on the underlying appeal and is considered a motion to remand. 8 C.F.R. §1003.2(b)(1) and 1003.2(c)(4).

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---,/Office olth" Princ:ipull.egtl/.·1dl'iso,.

1I.s. Department of Homeland Semrlty425 1Street,. NWWashington. DC 20536

U.S. Immigrationand CustomsEnforcement

October 24,2005

MEMORANDUM .FOR: All OPLA ChiefCounsel

FROM: William J. Howard1\(l~Principal Legal AdVisor

SUBJECT: Prosecutorial Discretion

N; you know, when Congress abolished tbe Immigration and Naturalization Serviceand divided its fimctions among U.S. Immigration and Customs Enforcement (ICE),U.S. Customs and Border Protection (CBP), and U.S. Citizenship and ImmigrationServices (CIS), the Office of the Principal Legal Advisor (OPLA) was given exclusiveauthority to prosecute all removal proceedings. See Homeland Security Act of2002,Pub. L. No. 107-296, § 442(c), 116 Stat. 2135, 2194 (2002) ('"the legal advisor * * *shall represent the bureau in all exclusion, deportation, and removal proceedings beforethe Executive Office for Imm' . n view~"ompJicating matters for OPLA isthat our cases come to us fro 1 CBP CIS an ICE since all Qlreebureaus areauthorized to issue Notices to ppe rAs). - . .- .

OPLA is handling about 300,000 cases in the immigration courts, 42,000 appeals beforethe Board of Immigration Appeals (BlA or Board), and 12,000 motions to reopen eachyear. Our circumstanc«s in litigating these cases differ in a major respect from ourpredecessor, the INS's Office ofGeneral Counser Gone are the days when INS districtcounsels, baving chosen 811 attorney-client model that required client consultationbefore INS trial attorneys could exercise prosecutoria1 discretion, could simply walkdown the haH to an INS district director, immigration agent, adjudicator, or borderpatrol officer to obtain the client's permission to proceed \.\Iith that exercise. NowNTA-issuing clients or ~i.akeholdersmight be in different agencies, in different

.buildings, and in different cities from OU1' own.

Since the NTA-issuing authorities are no longer all under the same roof, adhering toINS OGe's attorney-client model would minimize our efficiency. This kparticularlyso since we are liEgating our hUl1dreasort1ioiisanasorc1ises~t)learwith only 600 orso attorneys; thafour case preparation time is extremely hmlfed, averaging about ,"0minutes a case; that our caseload will increase since Conhrress is now providing moreresources for border and interior immigration enforcement; that many of the cases thatcome to us from NTA-issuers lack supporting evidence like conviction documents; thatwe must prioritize our cases to allow us to place greatest emphasis on OUT nationalsecurity and criminal alien dockets; that webave growing collateral duties such as

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assisting the Department of Justice with federal court litigation; that in many instanceswe lack sufficiept statIto adequately briefBoard appeals or oppositions to motions to

... r"eopen; and that the opportunities to exercise prosecutorial discretion arise at manydifferent points in the removal process.

To elaborate on this last point, the universe ofopportunities to exercise prosecutorialdiscretion is large. Those opportunities arise in the pre-filing stage, wnen, for example,

- we can advise clients who consult us whether or not to file NTAs or what charges andevide:nce to base them on. They arise in the course of litigating the NTA inimmigration court, when we may want, among other things, to move to dismiss a caseas Ie al' dent to. mend the NTA, to decide not to oppose a grant ot rehet, to• In m a motion to r,eopen~ or to stipulate to tfie ad1rilsslon 01 eVIQence: Imy ari§,S'afterthe immigration judge has entered an order, when we must decide whether to appeal allor part of the decision. Or they may arise in the context of ORO's Qecision to detainaliens, when we must work closely with DRO in connection with defending thatdecision in the administrative or federal courts. In the 50-plus immigration courtJ.:oomsacross the United States in which we litigate, OPLA's trial attorneys continually facethese and other prosecutorial discretion questions. Litigating with maximum efficiencyrequires that we exercise careful yet quick judgment on questions involvingprosecutorial discretion. This will require that OPLA~s trial attorneys become veryfamiliar with the principles in this memorandum and how to apply them.

Further giving rise to the need for this guidance is the extraordinary volume 2fimmigration cases that is now reaching the United States Courts ofAppeals. Since2001, federal court immigration cases have.tripled. That year, there were 5,435 federalcourt cases. Four years later~ in fiscal year 2004, that number had risen to 14~699

federal court cases. Fiscal year 2005 federal court immigration cases will approximate15,000. The lion's share ofthese cases consists of petitions for review in the UnitedStates Courts ofAppeal. Those etitions are now overwhelminJustice'~fficeQf Imm.imration itigation.~ith the result that the Department ofJusticehas shifted responsibility to brier as many as 2,000 of these appellate cases to otherDepartmental components and to the U.S. Attorneys' Offices. This, as you know, h@Sbrought you into greater contact with Assistant U.S. Attorneys who are turning to youfor assistance in remanding some of these cases. This 'memorandum is also intended toless uch remand requests, since it provides your office with guidancefo assist you in eliminating cases taw uld later merit a remand.

/

Given the complexity of immigration law, a complexity that federal courts at all levelsroutinelyacknowledre in published decisions~ your expert assistance to the U.S.Attorneys is critical. It is all the more important because the decision whether to

I As you know, ifand when your resources permit it, I encourage you lo speak with your respectiveUnited States Attorneys' Offices about having those Offices designate Special Assistant U.S. Attorneysfrom OPLA's ranks to handle both civil and criminal federal court immigration litigation. The U.S.

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proceed with litigating a case in the federal courts must be aaused for fMPULbJeucsslest, in losingthe case, me eoum award attorneys'"Tees-against the government pursuantto the Equal Access to Justice Act, 28 U.S.C. 2412. In the overall scheme of litigatingthe removal ofaliens at both the administrative and federal court leve4 litigation thatoften takes years to complete, it is important that we all apply sound principles ofprosecutorial discretion, uniformly throughout our offices and in all ofour cases, toensure that the cases we litigate on behalfofthe United States, whether at theadministrative level or in the federal courts, are truly worth litigating.

** ...... ******With this background in mind, I am directing that all OPLA attorneys apply thefollowing principles ofprosecutorial discretion:

1) Prosecutorial Discretion Prior to or in Lieu ofNTA Issuance:

In the absence ofauthority to cancel NTAs, we should engage in client liaison withCBP, CIS (and ICE) via, or in conjunction with, CISlCBP attorneys on the issuance ofNTAs. We should attempt to discourage issuance ofNTAs where there are other .options available such as administrative removal, crewman removal, expedited removalor reinstatement, clear eligibility for an immigration benefit that can be obtained outsideof immigration court, or where the desired result is other than a removal order.

It is not wise or efficient to place an alien into proceedings where the intent is to allowthat person to remain unless, where compelling reasons exist, a stayed removal ordermight yield enhanced law enforcement cooperation. See Attachment A (Memorandumfrom Wesley Lee, ICE Acting Director, Office ofDetention and Removal, AlienWitnesses and Informants Pending Removal (May 18, 2005»;~ also Attachment B(Detention and Removal Officer's Field Manual, Subchapters 20.7 and 20.8, for furtherexplanation on the criteria and procedures for stays ofremoval and deferred action).

Examples:

• Immediate Relative of Service PerSOD- Ifan alien is an immediate relative ofamilitary service member, a favorable exercise ofdiscretion, including not issuing anNTA, should be a prime consideration. Military service includes current or formermembers of the Anned Forces, including: the United States Army, Air Force, Navy,Marine Corps, Coast Guard, or National Guard, as well as service in the PhilippineScouts. OPLA counsel should analyze possible eligIbility for citizenship under

Attorneys' Offices will benefit greatly from OPLA SAUSAs, especially given the immigration lawexpertise that resides in each ofyour Offices, the immigration law's great complexity, and the extent towhich the USAOs are now overburdened by federal inun;gration litigation.

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sections 328 and 329. See Attachment C (Memorandum fromM~y M: Forman,Director, Office ofInvestigations, Issuance ofNotices to Appeal, AdministrativeOrders ofRemoval. or Reinstatement ofa Final Removal Order on Aliens withUnited States Military 'Service (June 21, 2004».

• Clearly Approvable 1-13011-485- Where an alien is the potential beneficiary ofa clearly approvable 1-13011-485 and there are no serious adverse factors thatotherwise justify expulsion, allowing the alien the opportunity to legalize his or herstatus through a CIS-adjudicated adjustment application can be a cost-efficientoption that conserves immigration court time and benefits someone who can beexpected to become a lawful pennanent resident ofthe United States. SeeAttachment D (Memorandum from William J. Howard, OPLA Principal Legal~dvisor~Exercising Prosecutorial Discretion to Dismiss Adjustment Cases (October6,2005».

• Administrative Voluntary Departure- We may be consulted in a case whereadministrative voluntary departure is being considered. Where an alien is eligiblefor voluntary departure and likely to depart, OPLA attorneys are encouraged tofacilitate the grant ofadministrative voluntary departure or voluntary departureunder safeguards. This may include continuing detention if that is the likely endresult even should the case go to the Immigration Court.

• NSEERS Failed to Register- Where an alien subject to NSEERS registrationfailed to timely register but is otherwise in status and has no criminal record, heshould not be placed in proceedings ifhe has a reasonable excuse for his failure.Reasonably excusable failure to register includes the alien's hospitalization,admission into a nursing home or extended care facility (where mobility is severelylimited); or where the alien is simply unaware ofthe registration requirements. SeeAttachm~tE (Memorandum from Victor Cerda, OPLA Acting Principal LegalAdvisor~Changes to the National Security Entry Exit Registration System(NSEERS)(January 8, 2004».

• Sympathetic Humanitarian Factors- Deferred action should be consideredwhen the situation involves sympathetic humanitarian circumstances that rise tosuch a level as to cry for an exercise ofprosecutorial discretion. Examples of thisinclude where the alien has a citizen child with a serious 'medical condition ordisability or where the alien or a close family member is undergoing ~imentfor apotentially life threatening disease. DHS has the most prosecutorial discretion atthis stage ofthe process.

2) Prosecutorial Discretion after the Notice to Appear has issued, but beforethe Notice to Appear has been filed:

We have an additional opportunity to appropriately resolve a case prior toexpending court resources when an NTA has been issued but not yet filed with theimmigration court. This would be an appropriate action in any of the situations


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identified in #1. Other situations may also arise where the reasonable and rationaldecisioo is oot to prosecute the case.

Example:

• U or T vis~- Where a "u" or "1''' visa application has been submitted, itmay be appropriate not to file an NTA until a decision is made on such anapplication. In the event that the applicatioo·is denied then proceedingswould be appropriate.

.3) Prosecutorial Discretion after NTA Issuance and Filing:

The filing of an NTA with the Immigration Court does not foreclose furtherprosecutorial discretion by OPLA Counsel to settle a matter. There may beample justification to move the court to terminate the case and to thereaftercancel the NTA as improvidently issued or due to a change in circumstancessuch that continuation is no longer in the government interest. 2 .We haveregulatory authority to dismiss proceedings. Dismissal is by regulation withoutprejudice. See 8 CFR §§ 239.2(c), 1239.2(c). In addition, there are numerousopportunities thatOPLA attorneys have to resolve a case in the immigrationcourt. These routinely include not opposing relief, waiving appeal or makingagreements that narrow issues, or stipulations to the admissibility ofevidence.There are other situations where such action should also be considered forpurposes ofjudicial economy, efficiency ofprocess or to promote justice.

Examples:

2 Unfortunately. DHS's regulations, at 8 C.F.R. 239.1. do not include OPLA's attorneys among the 38categories ofpersons given authOrity there ~o issue NTAs and thus to cancel NTAs. That being said.when an OPLA attorney encounters an NTA that lacks merit or evidence, he or she should apprise theissuing entity of the deficiency and ask that the entity cure the deficiency as a condition ofOPLA'sgoing forward with the case. If the NTA has already been filed with the immigration co~ the OPLAattorney should attempt to correct it by filing a form 1-261. or, ifthat wi)) not correct the problem,should move to dismiss proceedings without prejudice. We must be sensitive, particularly given ourneed to prioritize our national security and criminal alien cases, to whether prosecuting a particular casehas little law enforcement value to the cost and time required. Although we lack the authority to suasponte cancel NTAs, we can move to dismiss proceedings for the many reasons outlined in 8 CFR §239.2(a) and 8 CFR § 1239.2(c). Moreover. since OPLA attorneys do not have independent authorityto grant deferred action status, stays ofremoval, parole, etc;, once we have concluded that an alienshould not be SUbjected to Jt:moval, we must still engage the .client entity to "defer" the action, issue thestay or initiate administmtive removal.

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• Relief Otherwise Available- We should consider moving to dismissproceedings without prejudice where it appears in the discretion of the OPLAattorney that relief in the fonn ofadjustment of status appe~rs clearly approvablebased on an approvable 1-130 or 1-140 and appropriate for adjudication by CIS. SeeOctober 6, 2005 Memorandum from Principal Legal Advisor Bill Howard, supra.Such action may also be appropriate in the special rule cancellation NACARAcontext. We should also consider remanding a case to permit an alien to pursuenaturalization.3 This allows the alien to pursue the matter with CIS, the DHS entitywith the principal responsibility for adjudication of immigration benefits» rather thanto take time from the overburdened immigration court dockets that could beexpended on removal issues.

• Appealing Humanitarian Factors- Some cases involve sympathetichumanitarian circumstances that rise to such a level as to cry for an exercise ofprosecutorial discretion. Examples of this, as noted above, include where the alienhas a'citizen child with a serious medical condition or disability or where the alienor a close family member is undergoing treatment for a potentiaUy life threateningdisease. OPLA attorneys should consider these matters to determine whether analternative disposition is possible and appropriate. Proceedings can be reinstitutedwhen the situation changes. Ofcourse, if the situation is expected to be ofrelativelyshort duration, the ChiefCounsel Office should balance the benefit to theGovernment to be obtained by terminating the proceedings as opposed toadministratively closing proceedings or asking ORO to stay removal after entry ofan order.

• Law Enforcement Assets/CIs- There are often situations where federal, State orlocal law enforcement entities desire to have an alien remain in the United States fora period of time to assist with investigation or to testify at trial. Moving to dismiss acase to permit a grant ofdeferred action may be an appropriate result in thesecircumstances. Some offices may prefer to administratively close these cases, whichgives the alien the benefi~ of remaining and law enforcement the option ofcalendaring proc~dings at any time. This may result in more control by law·enforcement and enhanced cooperation by the alien. A third option is a stay.

4) Post-Hearing Actions:

Post-hearing actions often involve a great deal ofdiscretion. This includes adecision to file an appeal, what issues to appeal. how to respond to an alien's appeal.whether to seek a stay of a decision or whether to join a motion to reopen. OPLA

3 Once in proceedings, this typically will occur only where the alien has shown prima facie eligibilityfor naturalization and that his or her case involves exceptionally appealing or humanitarian factors. 8CFR §1239.1(f). It is improper for an immigration judge to terminate proceedings absent an affirmativecommtmication from DHS that the alien would be eligible for naturalization but for the pendency of thedeportation proCeeding. Matter ofCru~ 151&N Dec. 236 (BlA 1975): see Nolan v. Holmes, 334 F.3d189 (2d tiro 2003) (Second Cireuit upholds BIA's reliance on Matter of Cruz when petitioner failed to·establish prima facie eligibility.). .

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\I\ll OPLA Chief CounselPage? of9

..--....... ,. .'

'-",

attorneys are also responsible for replying to motions to reopen and motions toreconsider. The interests ofjudicial economy and fairness should guide your actionsin handling these matters.

Examples:

• RemandlBg to an Immigration Judge or Withdrawing Appeals- Where theappeal brieffiled on behalfof the alien respondent is persuasive, it may beappropriate for an OPLA attorney to join in that position to the Board, to agree to .remand the case back to the immigration court, or to withdraw a government appealand allow the decision to become final.

• Joining in Untimely Motions to ReopeB- Where a motion to reopen foradjustment of status or cancellation ofremoval is filed on behalfofan alienwith substantial equities, no serious criminal or immigration violations, andwho is legally eligible to be granted that reliefexcept that the motion is ..beyond the 90-day limitation contained in g C.F.R. § 1003.23, stronglyconsider exercising prosecutorial discretion and join in this motion to reopento permit the alien to pursue such relief to the immigration court.

• Federal Court Remands to the BIA- Cases filed in the federal courtspresent challenging situations. In a habeas case, be very careful to assess thereasonableness ofthe government's detention decision and to consult withour clients at ORO. Where there are potential litigation pitfalls or unusuallysympathetic fact circumstances and where the BIA has the authority tofashion a remedy, you may want to consider remanding the case to the BlA.Attachments H and I provide broad guidance on these matters. Bringconcerns to the attention of the Office ofthe United States Attorney or theOffice ofImrnigration Litigation, depending upon which entity hasresponsibility over the litigation. See generally Attachment F (Memorandumfrom OPLA Appellate Counsel, U.S. Attorney Remand Recommendations(rev. May 10,2005)); see also Attachment G (Memorandum from ThomasW. Hussey, Director, Office ofIrnmigration Litigation, U.S. Department ofJustice, Remand ofImmigration Cases (Dec. 8, 2004».

• In absentia orders. Reviewing courts have been very critical'of inabsentia orders that, for such things as appearing late for court, deprive aliensofa full hearing and the ability to pursue relieffrom removal. This isespecially hue where court is still in session and there does not seem to beany prejudice to either bolding or rescheduling the hearing for later that day.These kinds ofdecisions, while they may be technically correct, underminerespect for the fairness ofthe removal process and cause courts to findreasons to set them aside. These decisions can create adverse precedent inthe federal courts as well as BAJA liability. OPLA counsel should bemindful ofthis and, ifpossible, show a measured degree of flexibility, but


All OPLAfhief CounselPage 8of9'

only ifconvinced that the alien or his or her counsel is not abusing theremoval court process.

5) Final Orders- Stays and Motions to ReopeolReconsider:

Attorney discretiondoesntt cease after a final order. We may be consultedon whether a stay ofremoval should be granted. See Attachment B(Subchapter 20.7). In addition, circumstances may develop whether theproper and just course ofaction would be to move to reopen the proceedingfor purposes of terminating the NTA.

Examples:

• Ineffective Assistance- An OPLA attorney is presented with a situation wherean alien was deprived ofan opportunity to pursue relieft due to incompetent counsel,where a grarit of such relief could reasonably be anticipated. It would beappropriatet assuming compliance with Matter ofLozadat to join in or not opposemotions to reconsider to allow the relief applications to be filed.

• Witnesses Needed, Recommend a Stay- State law enforcement authorities needan alien as a witness in a major cnminal case. The alien has a final order and willbe removed fTom the United States before trial can take place. OPLA counsel mayrecommend that a stay of removal be pted and this alien be released onan orderofsupervision.

**********

Prosecutorial discretion is a very significant tool that sometimes enables you to dealwith the difficultt complex and contradictory provisions of the immigration laws andcases involving human suffering and hardship. It is clearly DHS policy that nationalsecurity violators, human rights abusers, spiest traffickers both'in narcotics and people,sexual predators and other criminals are removal priorities. It is wise to remember thatcases that do not fall within these categories sometimes require that we balance the costofan action versus the value of the result. Our reasoned determination in makingprosecutorial discretion decisions can be a significant benefit to the efficiency andfairness of the removal process.

Official Use Disclaimer:

This memorandum is protected by the Attorney/Client and Attorney Work product privilegesand is for Official Use Only. This memorandum is intended solely to provide legal advice tothe Office of the ChiefCounsels (CCC) and their staffs regarding the appropriate and lawfulexercise ofprosecutorial discretion, which will lead to the efficient management of resources.It is not intended to, does not, and may not be relied upon to create or confer any right(s) orbenefit(s), substantive or procedural. enforceable at law by any individual or other party in

I

II,

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,All OPLA ChiefCounselPage90f9

removal proceedings, in litigation with the United States, or in any other form or manner.Discretionary decisions oftbe OCC regarding the exercise ofprosecutorial discretion underthis mem.orandmn are final and not subject to legal review or recourse. Finally this internalguidance does not have the force oflaw. orofa Department ofHomeland Security Directive.


U.S. Department of Justice

Executive Office for Immigration Review

ofjice of the Chief Immigration Judge

Chief Immigration Judge 5/07 Lees- Pike, Suite 2500 Fa& Chmh. Virginia 22041

May 22,2007

MEMORANDUM

TO: All Immigration Judges All Court Administrators All Judicial Law Clerks All Immigration Court Staff

FROM: David L. Neal ----.-LA Chief Immigration Judge

SUBJECT: Operating Policies and Procedures Memorandum 07-01: Guidelines for Immimtion Court Cases Involvine Unaccom~anied Alien Childreq

This Operating Policies and Procedures Memorandum (OPPM) replaces OPPM 04-07, dated September 16,2004.

Table of Contents

IV.

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Definition of unaccompanied alien child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

. . Basicpnnciples ......................................................... 3

A. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Best interest of the child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Legal and personal representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 D. Applicability to all immigration judges . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 E. Additional considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ensuring an appropriate courtroom setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Courtroom orientation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Scheduling unaccompanied alien children's cases . . . . . . . . . . . . . . . . . . 5 C. Courtroom modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 D. Assessing the use of video conferencing . . . . . . . . . . . . . . . . . . . . . . . . . .5 E. Allowing the use of telephone conference . . . . . . . . . . . . . . . . . . . . . . . . .6 F. Removing the robe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2

V. Ensuring appropriate courtroom procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Explain the proceedings at the outset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. Pay particular attention to the interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. Be aware of time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

D. Prepare the child to testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

E. Employ child-sensitive questioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

F. Make proper credibility assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

G. Control access to the courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VI. Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Motions to change venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Requests for continuances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VII. Coding unaccompanied alien child cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VIII. Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Attachment A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. Introduction

This OPPM provides guidance and suggestions for adjudicating cases where the respondent

is an unaccompanied alien child (defined later). The suggestions focus primarily on assisting the

judge in ensuring that the respondent understands the nature of the proceedings, effectively presents

evidence about the case, and has appropriate assistance.

When the respondent is a child, the immigration judge faces fundamental challenges in

adjudicating the case: does the respondent understand the nature of the proceedings; can the

respondent effectively present evidence about the case; and is there anyone who can properly

advocate for the respondent’s interests? Issues of age, development, experience and self-

determination impact how a court deals with a child respondent.

Organizations involved in handling children’s asylum claims have developed special

guidance for adjudicators. Canada’s Immigration and Refugee Board was the first to draft such

guidance, Child Refugee Claimants: Procedural and Evidentiary Issues (1996). The following year

the United Nations High Commissioner for Refugees issued Policies and Procedures for

Unaccompanied Children Seeking Asylum. Finally, in 1998 the former Immigration and

Naturalization Service (INS) distributed Guidelines for Children’s Asylum Claims to its asylum

officers. Copies of these guidelines have been distributed to all Immigration Courts, and judges have

been encouraged to consult them as appropriate.

3

None of these documents specifically addresses the issues that arise when children’s asylum

claims are presented in an adversarial setting. Therefore, in developing guidelines for the kinds of

cases that we handle, the Office of the Chief Immigration Judge (OCIJ) sought additional guidance

primarily from materials developed for juvenile and family courts. The guidelines that follow are

based upon the asylum-specific documents mentioned above and the writings of judges and litigators

in other areas of the law.

II. Definition of unaccompanied alien child

The definition of the term “child” may differ depending on the context in which it is used.

These guidelines use the terms “child” and “children” in a way that is slightly different from the

definitions provided in the Immigration and Nationality Act (INA or Act). The Act defines a “child”

as an unmarried person under 21 years of age. Sections 101(b)(1) and 101(c)(1). The regulations

follow this statutory definition. The regulations also define a “juvenile” as an alien under the age

of 18. 8 C.F.R. § 1236.3. The regulations also use (but do not define) the word “minor” when

describing aliens under 14 years of age. 8 C.F.R. § 1236.2.

The Homeland Security Act of 2002 transferred responsibility for detained alien children

from the former INS to the Department of Health and Human Services (HHS) and the Department

of Homeland Security (DHS). It also introduced a new term -- unaccompanied alien child -- to

define a child who has no lawful immigration status in the United States, has not attained 18 years

of age, and who has no parent or legal guardian in the United States, or no parent or legal guardian

in the United States available to provide care and physical custody. The Office of Refugee

Resettlement (ORR) within HHS is responsible for unaccompanied alien children, while DHS is

responsible for accompanied children.

These guidelines use the term “unaccompanied alien child” as defined in the Homeland

Security Act of 2002 -- that is, a person under 18, without a parent or legal guardian in the United

States or without a parent or legal guardian in the United States who is available to provide care and

physical custody. Once a person attains the age of 18, or has a parent or legal guardian in the United

States who is available to provide care and physical custody, he or she would not fall within the

definition. All references to “child” or “children” in these guidelines should be construed to mean

an “unaccompanied alien child” as defined in the Homeland Security Act of 2002.

III. Basic principles

Several principles are central to these guidelines:

A. Authority. Every immigration judge is expected to employ child sensitive

procedures whenever a child respondent or witness is present in the courtroom.

However, it is equally true that all such cases are not alike, and the procedures

appropriate for a very young child may differ significantly from those appropriate for

a teenager. These guidelines are suggestions that should be applied as circumstances

warrant. All immigration judges understand that special attention is required for

4

cases involving child witnesses or unaccompanied alien child respondents. An

immigration judge should decide, on a case by case basis, whether special attention

is required.

B. Best interest of the child. Issues of law -- questions of admissibility, eligibility for

relief, etc. -- are governed by the Immigration and Nationality Act and the

regulations. The concept of “best interest of the child” does not negate the statute or

the regulatory delegation of the Attorney General’s authority, and cannot provide a

basis for providing relief not sanctioned by law. Rather, this concept is a factor that

relates to the immigration judge’s discretion in taking steps to ensure that a “child-

appropriate” hearing environment is established, allowing a child to discuss freely

the elements and details of his or her claim.

C. Legal and personal representation. Neither the INA nor the regulations permit

immigration judges to appoint a legal representative or a guardian ad litem.

Immigration judges should encourage the use of appropriate pro bono resources

whenever a child respondent is not represented. Where a list of pro bono services is

available, an immigration judge should provide it to a child if the child is not

represented. Likewise, although there is no independent court role for a personal

representative or guardian ad litem, if such services are made available to

respondents they have the potential to increase a child’s understanding of the

proceedings and to improve the child’s communication with his or her legal

representative.

D. Applicability to all immigration judges. All judges must be able to handle cases

involving unaccompanied alien children. Circumstances in a particular court may

require specialized dockets for children’s cases, and responsibility for such dockets

may be assigned to certain judges. However, all immigration judges are trained to

handle these cases. It is the responsibility of every immigration judge to be familiar

with these guidelines and related training materials.

E. Additional considerations. While these guidelines are written for cases involving

unaccompanied alien children, some provisions will apply in other cases where

children are accompanied by a parent or guardian or where children testify as

witnesses. Additionally, the guidelines mention, but do not address in detail, other

topics that apply whenever a child is present as a respondent or witness. These topics

include: the effect of age and development on a child’s ability to participate in the

proceedings; gender; mental health (including possible post-traumatic stress

syndrome); general cultural sensitivity issues; and appropriate questioning and

listening techniques for child witnesses. OCIJ has provided training to immigration

judges on some of these issues and will continue to do so in the future. These

guidelines should be viewed as one component of that training.

5

IV. Ensuring an appropriate courtroom setting

Claims in Immigration Court are raised in an adversarial setting. Recognizing that cases

involving unaccompanied alien children may make special demands on all parties, consideration

should be given in appropriate circumstances to some modifications to the ordinary courtroom

operations and configuration. These modifications may include:

A. Courtroom orientation. The courtroom is usually an unfamiliar place for children.

Many family and juvenile court experts recommend allowing children to visit an

empty courtroom prior to their scheduled hearing. Under the supervision of court

personnel, the children should be permitted to explore the courtroom, sit in all the

locations (including, especially, the judge’s bench and the witness stand), and to

practice answering simple questions in preparation for testimony. To the extent that

resources permit, court administrators should be receptive to requests by legal

representatives or custodians for unaccompanied alien children to visit our courts

prior to the initial hearing. Additionally, they should be open to other ways to

familiarize unaccompanied alien children with court operations.

B. Scheduling unaccompanied alien children’s cases. Wherever possible, courts should

conduct cases involving unaccompanied alien children on a separate docket or at a

fixed time in the week or month. If the number of cases do not warrant a separate

docket, courts should try to schedule children’s cases at a specific time on the regular

docket, but separate and apart from adult cases. Such a docket or schedule will

improve the ability of custodians to transport the children and of legal service

providers to assist them. Similarly, courts should keep detained dockets for adults

and children completely separate. Courts should try to ensure our dockets do not

have the effect of forcing unaccompanied alien children to be transported or held

with detained adults. When docketing these cases, immigration judges should be

mindful to weigh both the child’s need for time to prepare his or her case and the

impact of prolonged custody on the child’s mental health and well-being.

C. Courtroom modifications. Immigration judges do not have the luxury of equipping

their courtrooms with special furniture designed on a child’s scale. However, judges

can and should permit reasonable modifications: allowing counsel to bring pillows

or booster seats for young respondents; permitting young respondents to sit in one of

the pews with an adult companion or permitting the companion to sit at counsel’s

table; allowing a young child to bring a toy, book or other personal item into the

courtroom; permitting the child to testify while seated next to an adult or friend,

rather than in the witness stand; etc. Simple, common sense adjustments need not

alter the serious nature of the proceedings. They can, however, help foster an

atmosphere in which a child is better able to present a claim and to participate more

fully in the proceedings.

D. Assessing the use of video conferencing. It is important to note that Congress made

no distinction between hearings conducted in person and hearings conducted by

6

video conference. Video conference generally will be appropriate unless

circumstances dictate otherwise. Therefore, when handling cases involving

unaccompanied alien child respondents, if under ordinary circumstances the hearing

would be conducted by video conference, immigration judges should determine if

particular facts are present in the case to warrant an exception from the usual

practice.

E. Allowing the use of telephone conference. Where practicable, alien children,

whether unaccompanied or not, should be allowed to appear through telephone

conference for master calendar hearings and status conferences when they do not

reside within close proximity to the immigration court. Either party may request that

an alien child appear telephonically. Judges may query the parties as to whether a

telephonic appearance by an alien child would be more appropriate than an in-person

appearance.

F. Removing the robe. Like the courtroom, the robe is a symbol of the judge’s

independence and authority. For this reason, OPPM 94-10, “Wearing of the Robe

During Immigration Judge Hearings,” provides that a robe shall be worn in every

proceeding when any of the parties is present with the immigration judge. While

most unaccompanied alien children will be far more interested in the judge’s

behavior than the judge’s attire, the robe may be disconcerting for younger

respondents. If a judge determines in a particular case that dispensing with the robe

would add to the child’s ability to participate, OPPM 94-10 is modified to permit the

judge to remove the robe for that case.

V. Ensuring appropriate courtroom procedures

There is a consistency in the published recommendations for improvements in handling

children’s cases. Many of these recommendations come not from child psychologists but from

lawyers and judges. Although most suggestions pertain to juvenile and family court cases, they have

applicability in immigration cases as well, despite the added complexities of language and cultural

differences. By carefully controlling how the proceedings are conducted, immigration judges can

effectively discharge their obligation under the INA and the regulations in a way that takes full

account of the best interest of the unaccompanied alien child. The following suggestions have

relevance to most, if not all, cases where children are respondents:

A. Explain the proceedings at the outset. Judges should consider making a brief opening

statement at the beginning of each proceeding, or at the commencement of a

specialized docket for children’s cases, to explain the purpose and nature of the

proceeding, to introduce the parties and discuss each person’s role, and to explain

operational matters such as tape recording, note taking, telephonic or video

conference appearances, etc. Where approved instructive materials are available,

such as a video prepared for unaccompanied alien children in proceedings, the courts

should make a reasonable effort to make those materials available to unaccompanied

alien children.

7

B. Pay particular attention to the interpreter. Judges should allow time for the

interpreter and the unaccompanied alien child to establish some rapport by talking

about unrelated matters before testimony is taken. Judges should also watch for any

indication that the child and the interpreter are having difficulty communicating.

Any statement to be translated should be made in English at an age-appropriate level

and translated at that level for the child respondent.

C. Be aware of time. As in any case, the judge should give the parties a full opportunity

to present or challenge evidence. However, stress and fatigue can adversely impact

the ability of an unaccompanied alien child to participate in his or her removal

proceedings. Where appropriate, immigration judges should seek not only to limit

the number of times that children must be brought to court, but also to resolve issues

of removability and relief without undue delay. As appropriate, judges should

require the parties to narrow issues through pre-trial conference and stipulations.

Additionally, if a child is called to testify, judges should seek to limit the amount of

time the child is on the stand. Similarly, judges should recognize that, for emotional

and physical reasons, children may require more frequent breaks than adults.

D. Prepare the child to testify. As with any witness, a judge should be confident that the

child is competent to testify in the proceedings, including whether the child is of

sufficient mental capacity to understand the oath and give sworn testimony. The

explanation of the oath should vary with the age of the witness: promise “to tell the

truth” or promise “to tell what really happened” etc. Children should be told that it

is all right for them to say, “I don’t know” if that is the correct answer, and to request

that a question be asked another way if the child does not understand it. Explain also

that the child witness should not feel at fault if an objection is raised to a question.

E. Employ child-sensitive questioning. Language and tone are especially important

when children are witnesses. Proper questioning and listening techniques will

produce a more complete and accurate record. Although the Immigration Court

process is adversarial, judges should ask and encourage the parties to phrase

questions in age-appropriate language and tone. Attachment A contains a detailed

set of instructions from the DHS guidelines. Immigration judges should consult

these suggestions and adapt them to the courtroom setting to the extent possible.

F. Make proper credibility assessments. Judges should recognize that children,

especially young children, usually will not be able to present testimony with the same

degree of precision as adults. Do not assume that inconsistencies are proof of

dishonesty, and recognize that a child’s testimony may be limited not only by his or

her ability to understand what happened, but also by his or her skill in describing the

event in a way that is intelligible to adults. Judges should be mindful that children

are highly suggestible and their testimony could be influenced by their desire to

please judges or other adults.

8

G. Control access to the courtroom. As a general matter, it is best to have as few people

in court as possible. Children may be reluctant to testify about painful or

embarrassing incidents, and the reluctance may increase with the number of

spectators or other respondents.

VI. Motions

Certain motions, as appropriate, should be adjudicated in a manner that enables

unaccompanied alien children to effectively present their evidence and obtain appropriate

assistance. Accordingly, immigration judges should adjudicate motions to change venue and

requests for continuances as follows.

A. Motions to change venue. In cases involving alien children, whether unaccompanied

or not, unopposed motions for change of venue may be granted without requiring a

pleading or the filing of an application for relief. Accordingly, the pleading and issue

resolution mandates set forth in OPPM 01-02, section V. B., may be waived in cases

involving unaccompanied alien children.

B. Requests for continuances. When considering requests for continuances,

immigration judges should be mindful that cases involving alien children are exempt

from case completion goals and aged case completion deadlines. Such cases,

however, must be noted with case identifier “J” or “UJ” in ANSIR or CASE to be

exempted from completion goals and aged case completion deadlines.

VII. Coding unaccompanied alien child cases

It is important that the Immigration Courts code these cases so that they can readily be

identified. Courts for many years have used the J-code in ANSIR to designate cases

involving children. However, the J-code alone does not permit us to distinguish children

who are with a parent or legal guardian from unaccompanied alien children.

Beginning immediately, court administrators should assign the J-code in ANSIR or CASE

only to cases where a child in proceedings has a parent or legal guardian in the United States

who is providing care and physical custody. Those children, obviously, will not be in the

custody of the Office of Refugee Resettlement. If, on the other hand, a child in proceedings

meets the definition of an unaccompanied alien child -- has no parent or guardian in the

United States or no parent or legal guardian in the United States available to provide care and

physical custody -- the court administrator should use a new ANSIR or CASE code, UJ. In

most if not all instances, those unaccompanied alien children will be in the custody of DHS

or the custody of ORR. The UJ code should remain on the record unless the child is released

from DHS custody or ORR custody to a sponsor, parent or legal guardian. If the court staff

or the judge become aware that the child has been released from DHS custody or ORR

custody to a sponsor, parent or legal guardian, the case should be re-coded J-1. The J-1 code

should also be used if an unaccompanied alien child attains the age of 18 while still in

9

proceedings. These new codes should be used for all new case filings. Additionally, for

pending cases court staff should change the case identifier from J to UJ if the respondent

meets the definition of an unaccompanied alien child.

The use of these three codes is temporary until the new CASE system is operational in all

courts. Although it is an interim procedure, it will permit us to report on the number and

disposition of unaccompanied alien children cases in our courts.

VIII. Training

Immigration judges can play an active part in training programs for pro bono attorneys.

Mock trials, “Model Hearings,” and other efforts are effective ways of increasing the

available pool of representatives. When judges are invited to participate, these requests

should be promptly forwarded to OCIJ for approval. Recognizing that docket demands must

come first, this office is committed to assisting in such efforts.

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Attachment A

The following suggestions are drawn from the Guidelines for Children’s Asylum Claims issued

by the Immigration and Naturalization Service (now the Department of Homeland Security) in

1998. Specifically, they are found in the section entitled “Child-Sensitive Questioning -- And

Active Listening -- Techniques.”

As a general rule, use short, clear, age appropriate questions and sentences, avoiding long

or compound questions. Use one or two syllable words in questions and avoid three or

four syllable words. For example, it is better to ask “Who was the person?” rather than

“Identify the person.” Use simple, straight-forward questions: “What happened?” Avoid

multi-word verbs: “Might it have been the case ... ?” Ask the child to define the use of a

term or phrase in the question posed in order to check the child’s understanding.

Choose easy words over hard ones: use expressions like “show,” “tell me about,” or

“said” instead of complex words like “depict,” “describe,” or “indicate.”

Tolerate pauses, even if they are long.

Ask the child to describe the concrete and observable, not the hypothetical or abstract.

Use visual terms (e.g., gun), instead of categorical terms (e.g., weapon). Reduce

questions to their most basic and concrete terms.

Avoid the use of technical legal terms in questions, such as “persecuted” or

“persecution.” Instead of “Were you persecuted?”, ask “Were you hurt?”

Use the active voice when asking a question (e.g., “Did the man hit your father?”). Avoid

the passive voice (e.g., “Was your father hit by the man?”).

Avoid “front-loading” questions. Front-loading involves using a number of qualifying

phrases before asking the crucial part of the question (i.e., questions that list several

previously established facts before asking the question at hand). For example, “When

you were in the house, on Sunday the third, and the man with the gun entered, did the

man say ... ?” should be avoided.

Keep each question simple and separate. For example, a question like “Was your mother

killed when you were 12?” should be avoided. The question asks about the child’s

mother and the child’s age at the same time.

Generally, avoid leading questions whenever possible. Research reveals that children

may be more highly suggestible than adults. Leading questions may influence them to

respond inaccurately.

11

Use open-ended questions to encourage narrative responses. Children’s spontaneous

answers, although typically less detailed than those elicited by specific questioning, can

be helpful in understanding the child’s background. Try not to interrupt the child in the

middle of a narrative response.

If you are asking questions more than once, explain to the child why you are doing so.

Make clear to the child that he or she should not change or embellish earlier answers and

explain that you are asking repeated questions to make sure you understand the story

correctly. Repeated questioning is often interpreted (by adults as well as children) to

mean that the first answer was regarded as a lie or wasn’t the answer that was desired.

Coercion has no place in any hearing. Children are never to be coerced into answering

questions during the hearing. For example, telling a child that she cannot leave the

hearing until she answers the questions posed by counsel or the judge should never occur.

Do not expect children to be immediately forthcoming about events which have caused

great pain.

Before asking how many times something happened, the immigration judge should

determine the child’s ability to count. Children may try to answer without the requisite

skill, resulting in irrelevant, inconsistent, misleading, or erroneous responses.

Children may not know the specific circumstances that led to their flight from their home

countries and, even if they know the circumstances, they may not know the details of the

circumstances. The child may also have limited knowledge of conditions in the home

country, as well as his or her vulnerability in that country. Even older children may not

have mastered many of the concepts relating to conventional systems of measurement for

telling time (minutes, hours, calendar dates).

Imprecise time and date recollection may be a common problem for children. Many

aliens, however, note events not by specific date but by reference to cyclical (rainy

season, planting season, etc.) or relational (earthquakes, typhoons, religious celebrations,

etc.) events. In response to the question “When were you hurt?”, it may not be

uncommon for a child to state “During harvest season two seasons ago” or “shortly after

the hurricane.” To be sure, these answers may appear vague, but they may be the best and

most honest testimony the child has to offer.

It should be noted that children can not be expected to present testimony with the same

degree of precision as adults with respect to context, timing, and details.

Copyright © 2010, American Immigration Lawyers Association. All rights reserved. Reprinted, with permission, from AILA’s Immi-gration Practice Pointers, (2010–11 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org.

354 Copyright © 2010 American Immigration Lawyers Association

MOTIONS TO SUPPRESS, CONTINUE, AND WITHDRAW A PLEADING by Rex Chen, Lawrence Rudnick & Philip Smith*

MOTION TO SUPPRESS Home Raid Suppression Motion Developments

Recent immigration court litigation has succeeded using the well-established theory of suppressing evi-dence that the government obtained through an egregious violation of the Fourth Amendment. Several practice tips have emerged from a series of successful suppression motions after home raids:

Establish that the respondent did not consent to the government officers’ entry into the home. U.S. Immigra-tion and Customs Enforcement (ICE) frequently argues that someone in the home consented to the officers’ en-try. However, opening the door of the home is not necessarily an indication that the occupant has consented to the officers’ entry.1 There is no requirement to show that the occupant ordered the officers to leave after they improperly entered the home. In Lopez-Rodriguez v. Mukasey,2 the U.S Court of Appeals for the Ninth Circuit overturned the Board of Immigration Appeals (BIA) and suppressed evidence that ICE obtained from an ille-gal home raid.

Emphasize that by raiding a home, the government invaded a particularly private space. Immigration judges (IJ) have concluded that warrantless home raids are egregious Fourth Amendment violations based on how the U.S. Supreme Court has consistently recognized that individuals deserve the highest privacy protec-tions in their own home. At the core of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”3

Explain that suppressing evidence would be consistent with several recent immigration court decisions. Judge Brennan in New York City Immigration Court suppressed evidence in May 2008, after ICE officers raided a home between 2:30 a.m. and 4 a.m. without a judicial warrant.4 It made no difference that the offi-cers had an administrative warrant. Judge Balasquide in New York City immigration court suppressed evi-dence in November 2008, after ICE officers conducted a warrantless home raid around 5:30 a.m.5 Judge Gordon-Uruakpa in New York City immigration court suppressed evidence in May 2009, after armed ICE

* Rex Chen is managing attorney at Catholic Charities of Newark. He has extensive experience litigating suppression motions before the immigration court, the BIA, and the Third Circuit, and manages a confidential joint defense wiki where lawyers collaborate on suppression motion strategy and research. Mr. Chen also litigates and speaks on pre-hearing discovery, protec-tions for informants, and the application of international law in immigration court. He also blogs about Third Circuit immigra-tion decisions and made a documentary video about an immigrant wrongly convicted of murder. Lawrence H. Rudnick has been consistently rated one of the preeminent immigration lawyers in the U.S. He has practiced immigration law for over 28 years, is listed in the Best Lawyers in America, and is a frequent commentator on immigration-related issues for the press. Mr. Rudnick has been selected among the Pennsylvania “Super Lawyers” for immigration law, and is listed in the Who’s Who of International Corporate Immigration Lawyers. He is AV-rated by Martindale-Hubbell. While Mr. Rudnick’s practice focuses primarily on business immigration, he has had a number of well-known successes in litigation, in-cluding the decisions in Yusupov v. Att’y Gen., 518 F.3d 185 (3d. Cir. 2008), overturning the attorney general’s interpretation of which individuals constitute a danger to the U.S., and Soltane v. DOJ, 381 F.3d 143 (3d.Cir. 2004), overturning USCIS’ overly restrictive interpretation of the religious worker regulation. Philip Smith, a partner in the law firm Nelson | Smith, LLP in Portland, Oregon, is a member of the Tennessee and Oregon bars, the U.S. District Court of Oregon, the Ninth Circuit and the U.S. Supreme Court. He previously served as chair of the AILA Oregon chapter. Mr. Smith received his law degree from the University of North Carolina at Chapel Hill. Prior to his legal career, Philip served as a Peace Corps volunteer in Sri Lanka. 1 Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008). 2 Id. 3 Silverman v. United States, 365 U.S. 505, 511 (1961). 4 In re Victor Leonel Pineda Morales (NYC Imm. Ct. May 13, 2008) on file with author (litigated by Anne Pilsbury). 5 In re Guevara Mata (NYC Imm. Ct. Nov. 21, 2008) on file with author (litigated by Anne Pilsbury and Miwako Dai).

MOTIONS TO SUPPRESS, CONTINUE, AND WITHDRAW A PLEADING 355

Copyright © 2010 American Immigration Lawyers Association

officers entered a home without a warrant, awoke the respondent in his bedroom, and ordered him to come out of his bedroom at 5:30 a.m.6 Judge Straus in Hartford immigration court suppressed evidence in four cases in June 2009, after ICE officers entered homes around 6:30 a.m. without a warrant.7 In one of Judge Straus’s cases, the ICE officers’ illegal home entry and continued questioning of occupants who expressed their desire not to answer questions was so clearly egregious that Judge Straus believed the case “does not appear to be on the margins” of whether suppression would be appropriate.

Explain that suppressing evidence would be consistent with Supreme Court and circuit court precedent. The Supreme Court stated in footnote 5 of INS v. Lopez-Mendoza8 that the BIA suppresses evidence from illegal warrantless night-time entries into a residence. It would be logical to apply the same rule for illegal, warrantless early-morning home raids as for illegal, warrantless night-time home raids. The Ninth Circuit has overturned the BIA and an IJ for failing to suppress evidence after an illegal home raid.9

Consider making an alternative argument that the illegal home raid was an egregious Fourth Amendment violation because it was conducted in bad faith. The Ninth Circuit repeatedly has held that bad faith Fourth Amendment violations are egregious ones that require suppressing evidence.10 Frame this issue as an alterna-tive basis for finding that the government’s violation was egregious. Development Regarding Termination Motions Based on Violating 8 CFR §287.3(c)

IJs are increasingly terminating cases after the government committed a regulatory violation.11 There are many regulations to examine when analyzing the government’s conduct. One of the regulations is 8 Code of Federal Regulations (CFR) §287.3(c), requiring the government to provide certain advisals12 to people they arrest. There has been greater focus recently on when the government first has the obligation to provide the advisals. In many cases, an ICE officer arrests and interrogates someone before formally commencing re-moval proceedings through filing a Notice to Appear (NTA) with an immigration court. The issue is whether the government has the obligation to give the advisals once they arrest someone or whether they have no ob-ligation until after they file the NTA.

The Ninth Circuit focused on this issue in a 2008 case. The Ninth Circuit noted that the BIA had not yet announced its view and remanded the case for the BIA to address it.13 The BIA has not yet addressed the is-sue. In February 2009, Judge Tabaddor in Los Angeles immigration court terminated a case because the ad-visals are required upon arrest, even if removal proceedings have not yet formally commenced.14 Judge Ta-baddor concluded that the plain meaning and practical purpose of the regulation are that anyone who is not subject to expedited removal must be given the advisals once there is a warrantless arrest. The warning that statements may be used against someone would offer no protection if it was not required until after the gov-ernment already questioned or interrogated him or her.

In March 2009, the Ninth Circuit again decided an appeal that raised this issue. Rather than remand the is-sue to the BIA as the court had done in 2008, the Ninth Circuit instead ruled that the advisals were not re-quired until removal proceedings formally commenced.15 In January 2010, Judge Stancill in Los Angeles

6 In re Martin Reyes-Basurto (NYC Imm. Ct. May 28, 2009) on file with author (litigated by Heather Axford and Anne Pilsbury). 7 In re [Redacted] (Hartford, CT Imm. Ct. June 1, 2009) on file with author (litigated by Michael Wishnie with Yale Law School clinicians and students). 8 468 U.S. 1032 (1984). 9 Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008). 10 Adamson v. CIR, 745 F.2d 541 (9th Cir. 1984); Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008). 11 See Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980). 12 The advisals required by 8 CFR 287.3(c) involve stating the reasons for the arrest, advising about the right to a lawyer at no cost to the government, providing a list of legal service providers, and advising that the person’s statements could be used against him or her. 13 Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir. 2008). 14 In re Gregorio Perez-Cruz, No. A95-748-837 (Los Angeles Imm. Ct. Feb. 10, 2009) (litigated by Noemi Ramirez and Ahi-lan Arulanantham). 15 Samayoa-Martinez v. Holder, 588 F.3d 897 (9th Cir. 2009).

356 IMMIGRATION PRACTICE POINTERS, 2010–11 ED.


uance.

immigration court applied the Ninth Circuit’s view by holding that the advisals are not required until removal proceedings formally commenced.16

PRACTICE POINTERS Argue that the proper interpretation of 8 CFR §287.3(c) is to require certain advisals upon a warrantless

arrest, even if formal proceedings had not yet commenced. Argue that Judge Tabaddor’s analysis is sound—it would be meaningless to allow the government to interrogate people before advising them that what they say may be used against them. Raise as an analogous situation how the government may not obtain consent to enter a home by only asking the occupant for consent after they already searched the home. The voluntary consent would be tainted because the occupant would believe that refusing to consent would be a bit like clos-ing the barn door after the horse is out.17 Here, advising people that what they say may be used against them after they are interrogated would be as useless and tainted as asking for consent to enter a home after the gov-ernment already searched the home. Outside the Ninth Circuit, argue that the Ninth Circuit’s interpretation is not binding, and therefore, should only be considered for its persuasiveness. Then argue that its interpretation is not as persuasive as Judge Tabaddor’s analysis. In addition, the Ninth Circuit’s interpretation is contradic-tory because in 2008 it remanded the issue to the BIA, but a different three-judge panel in 2009 offered its view on the issue.

Within the Ninth Circuit, argue that under the Supreme Court’s decision in National Cable & Telecommu-nications Ass’n v. Brand X Internet Services,18 it is possible that an agency is not bound by a circuit court’s interpretation of a statute or regulation. Ask the IJ to act on behalf of the agency by issuing an interpretation without concern for the Ninth Circuit’s opinion. In the alternative, ask the IJ to predict how the BIA would rule on the issue, noting that the BIA frequently deviates from the view of the circuit court whose law is bind-ing in the case. In the alternative, ask the IJ first to predict how the BIA would rule, and then to predict how the Ninth Circuit would view the predicted BIA decision. It is possible that the BIA would deviate from the Ninth Circuit’s view and that the Ninth Circuit would defer to the BIA’s position based on a specific interpre-tation of Brand X.

MOTION FOR CONTINUANCE This section focuses on Motions for Continuances due to pending or approved I-130 immigrant petitions

for a foreign national relative or a pending or approved I-140 immigrant petition for a foreign national worker. Motion for Continance for Pending or Approved I-140 Immigrant Petition

Continuances are granted for “good cause.”19 In Matter of RAJAH,20 the BIA instructed that in determin-ing whether good cause exists to continue removal proceedings to await the adjudication of a pending em-ployment-based visa petition or labor certification, an IJ should determine the foreign national’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi,21 and any other relevant considerations. A continuance should normally be granted where the foreign national has filed an unopposed motion for a continuance based upon a pending employment-based visa petition that, if ap-proved, would render the foreign national prima facie eligible for adjustment of status. The mere pendency of a labor certification is generally not sufficient to warrant contin

The non-exclusive list of factors to be considered from Matter of Hashmi are:

16 In re Mirna [Redacted] (Los Angeles Imm. Ct. Jan. 8, 2010) on file with author (litigated by John Ayala) (granting termina-tion motion on other grounds). 17 United States v. Furrow, 229 F.3d 805, 814 (9th Cir. 2000). 18 National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). 19 See 8 CFR §103.29. 20 Matter of RAJAH, 25 I&N Dec. 127 (BIA 2009). 21 Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).



(1) The U.S. Department of Homeland Security (DHS) response to the Motion for Continuance; (2) Whether the underlying visa petition is prima facie approvable; (3) The respondent’s statutory eligibility for adjustment of status; (4) Whether the respondent’s application for adjustment of status merits a favorable exercise of discretion; and (5) The reason for the continuance and other procedural factors. Overall, the focus is on the likelihood of success of the adjustment of status application. Matter of RAJAH should apply a fortiori where the immigrant petition has been approved and, therefore,

the applicant for permanent residence is prima facie eligible. If eligibility under INA §245(i) is required then that should clearly be documented in the submission. Further, the bona fides of the employment and contin-ued nature of the employment should be documented or eligibility under INA §204(j).22 Practitioners should produce evidence that the foreign national warrants the favorable exercise of the immigration court’s discre-tion—e.g., proof of the foreign national’s tax payments—and, at a minimum, should demonstrate an absence of negative factors counting against the approval of permanent residence. Motion for Continance for Pending or Approved I-130 Immigrant Petition

In Hashmi v. Attorney General of the U.S.,23 there were a number of continuances granted while the peti-tioner and beneficiary awaited an adjudication of the pending I-130 petition. The U.S. Court of Appeals for the Third Circuit held that the immigration court abused its discretion by denying an unopposed motion for a further adjournment because the case had been pending longer than the eight month “case-completion goals” set by the U.S. Department of Justice. The IJ’s denial of a motion for continuance based on case completion goals rather than the specific facts and circumstances was arbitrary and capricious and an abuse of discretion. It is important to note that in Hashmi, much of the delay was attributable to the government and that the peti-tioner through his counsel exercised due diligence. The court distinguished its holding in Kahn v. Attorney General,24 where the petitioner’s wife had applied for a labor certification that had not yet been granted. The court relied on the inchoate and speculative nature of the labor application. The court distinguished Hashmi from Kahn based on Hashmi’s prima facie eligibility for adjustment of status upon the approval of the I-130 petition.

In Matter of Hashmi,25 the BIA on remand discussed the analytical framework set forth above. In the non-exclusive five-part test, the BIA applied the presumption in Matter of Garcia.26 Discretion ordinarily would be favorably exercised where there is a prima facie approvable visa petition and adjustment of status applica-tion could be submitted. DHS’ mere opposition to the motion cannot be determinative. The IJ may evaluate the prima facie approvability of the I-130 notwithstanding USCIS’ exclusive jurisdiction over the petition. An IJ must advance a cogent reason for denying the continuance after examining all of the relevant factors.27

MOTION TO WITHDRAW PLEA It happens. Admissions are made in removal proceedings that a respondent would later like to take back. It

may be an admission to a factual charge, like alienage or manner of entry, or it may be that a particular con-viction constitutes an aggravated felony or a crime of domestic violence. The admission may have been made

22 See Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010) (finding Immigration Judges have authority to determine whether the foreign national’s approved employment-based visa petition is preserved under § 204(j) where the foreign national has changed jobs or employer). 23 Hashmi v. Attorney General of the U.S., 531 F.3d 256 (3d Cir. 2008). 24 Kahn v. Attorney General, 448 F.3d 226 (3d Cir. 2006). 25 Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). 26 Matter of Garcia, 16 I&N Dec. 653 (BIA 1978) modified on other grounds, Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). 27 See Subhan v. Ashcroft, 385 F.3d 591 (7th Cir. 2004) (finding an abuse of discretion where the Immigration Judge offered no reason for denying the continuance).

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f removal.

by the respondent pro se or by the respondent’s counsel. Either way, can an admission once made be with-drawn? Not easily, but here are three things to keep in mind if you are going to try.

FIRST, read the BIA decision, Matter of Velasquez,28 the seminal BIA case that addresses this topic. In Velasquez, the respondent, through counsel, had conceded the factual allegations and the charge of deport-ability in a motion to change venue, which was granted.29 At the next hearing, respondent’s new attorney sought to withdraw the admissions and suppress respondent’s statement made at the time of his arrest and interrogation by immigration officers. The IJ refused to conduct a separate suppression hearing and found the respondent deportable based solely on the admissions made in the motion to change venue.30

On appeal, the BIA set out the general rule applicable to admissions made in removal proceedings: “[A]bsent egregious circumstances, a distinct and formal admission made before, during or even after a pro-ceeding by an attorney acting in his professional capacity binds his client as a judicial admission.”31 Relying on the Supreme Court’s holding in Strickland v. Washington,32 the BIA explained that an admission made as a tactical decision is binding and may be relied on as evidence of deportability. Beyond the general rule, the BIA left open the possibility that withdrawal of an admission might be necessary in certain circumstances. For example, the BIA noted that the respondent did not argue that his factual admissions and concession of deportability were untrue or incorrect.33 The BIA also noted that there was no evidence that the admissions were the result of unreasonable professional judgment or produced an unjust result. Thus, the BIA recognized five possible reasons to withdraw a plea:

1) The admission was not true; 2) The admission was not correct; 3) The admission was the result of unreasonable professional judgment (ineffective assistance); 4) The admission produces an unjust result; or 5) There were egregious circumstances. SECOND, try to proffer evidence with a motion to withdraw that the admission was based on a factual mis-

take and was not done to gain a tactical advantage. The Ninth Circuit recently held in Torres-Chavez v. Holder that conceding a true fact is not fundamentally unfair.34 Torres-Chavez involved the common scenario pre-sented in Velasquez, where the respondent first admits alienage and later tries to file a motion to suppress.35 Al-though Torres-Chavez tried to claim the admission was the result of ineffective assistance of counsel, the Court emphasized that voluntarily conceding a true fact in removal proceedings is simply not egregious conduct or outside the scope of reasonable professional judgment.36 Still, where there is credible evidence that a factual admission was simply wrong, it is difficult to see why a respondent should not be able to withdraw the admis-sion. For example, without too much discussion, the Ninth Circuit has held that the BIA abused its discretion when it denied a request to reinstate an asylum application that had been withdrawn by an applicant’s counsel on the mistaken belief that the applicant had entered the country on an earlier date than was actually the case and thus counsel mistakenly thought his client would be eligible for cancellation o 37

28 Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986). 29 Velasquez, 19 I&N Dec. at 378. 30 Id. at 380. 31 Id. at 382. 32 Strickland v. Washington, 466 U.S. 668, 689 (1984). 33 Velasquez, 19 I&N Dec. at 383. 34 Torres-Chavez v. Holder, 567 F.3d 1096, 1098 (9th Cir. 2009). 35 Id. at 1100–01. 36 Id. at 1102. 37 Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 867 (9th Cir. 2003).



Where the admission concerns the classification of a particular conviction as a removable offense, an in-teresting case to consider is Garcia v. US Attorney General, from the U.S. Court of Appeals for the Third Cir-cuit.38 In Garcia, the respondent, under questioning at the hearing, had conceded that his conviction was for an aggravated felony and his attorney did not object or attempt to counter the admission. The Third Circuit stated that the legal classification of a criminal conviction is not a factual proposition susceptible of admission by a party, but is a legal proposition to be determined by a court.39 Thus, under Garcia, there is an argument that only facts can be admitted; legal issues, by contrast, can be waived or not exhausted, but should not be deemed to be conclusively admitted.

THIRD, consider the holding from the U.S. Court of Appeals for the Second Circuit in Hoodho v. Holder: tactical decisions that do not work out as planned cannot later be withdrawn.40 In Hoodho, the respondent, through his attorney, conceded the charge that his conviction constituted a violation of that portion of a pro-tection order that protects against credible threats of violence, harassment, etc., and sought cancellation of removal. After the IJ denied cancellation of removal, respondent argued that his attorney’s admission was erroneous and was an egregious circumstance that should allow him to withdraw the admission.41 In its own words, the Second Circuit stated, “the acceptance by an IJ of a plausible concession of removability is an un-remarkable feature of removal proceedings. A petitioner cannot disavow that concession because, in hind-sight, it might have been preferable for him to have contested removability, rather than to have conceded it. Because Hoodho is bound by his attorney's concession of removability, his petition for review is denied.”42 Even here, the Second Circuit did explain that when the record evidence runs contrary to a concession or the IJ has reason to believe that a mistake might have been made an IJ may probe the basis for the concession and need not mechanically accept it.43

FINAL THOUGHT: The moral of the story is: be very careful before admitting and conceding and mov-ing on to relief that may fizzle or fade before the final hearing. The general rule of thumb is to admit facts but not law. Laws change. New decisions are published. Cases are overturned. Clients marry and divorce. Wit-nesses disappear. If a new legal theory comes up or an old one is suddenly given new life, put yourself in a position to take advantage of it if the need arises.

38 Garcia v. U.S. Attorney General, 462 F.3d 287 (3d Cir. 2006). 39 Id. at 290. 40 Hoodho v. Holder, 558 F.3d 184 (2d Cir. 2009). 41 Id. at 188–89. 42 Hoodho, 558 F.3d at 187. 43 Id. at 192, n.7.

2011 AILA Teleconference/Web Conference © 2011 American Immigration Lawyers Association

Tolchin Outline 1. Discovery

a. Motions for subpoenas i. 8 C.F.R. § 1003.35(b)(1)

(b) Subpoenas issued subsequent to commencement of proceedings. (1) General. In any proceeding before an Immigration Judge . . . the Immigration Judge shall have exclusive jurisdiction to issue subpoenas requiring the attendance of witnesses or for the production of books, papers and other documentary evidence, or both. An Immigration Judge may issue a subpoena upon his or her own volition or upon application of the Service or the alien.

ii. Enforcement of Subpoenas, 8 C.F.R. § 1003.35(b)(6) (6) Invoking aid of court. If a witness neglects or refuses to appear and testify as directed by the subpoena served upon him or her in accordance with the provisions of this section, the Immigration Judge issuing the subpoena shall request the United States Attorney for the district in which the subpoena was issued to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify and to produce the books, papers or documents designated in the subpoena.

iii. Format of Subpoena

iv. Must be essential and not a “fishing expedition”.” Kaur v. I.N.S., 237 F.3d 1098, 1100 opinion amended on denial of reh'g, 249 F.3d 830 (9th Cir. 2001)

b. Motion for prior statement of witness: i. The Jencks Act, 18 U.S.C. § 3500, and due process require the government to

produce any witness’s statements relating to his or her testimony at trial.

ii. Matter of C--, 8 I. & N. Dec. 696 (BIA 1960), Matter of L--, 9 I. & N. Dec. 14 (BIA 1960); Wright v. INS, 673 F.2d 153, 157-58 (6th Cir. 1982) (alien’s attorney was able to use the prior affidavits to show that the witness was perjuring himself on the stand or had lied in the earlier affidavits).

c. Motion to produce alien file: Dent v. Holder, 627 F.3d 365 2010 (9th Cir. 2010)

d. Motion for exculpatory evidence: Brady v. Maryland, 373 Supreme U.S. 83 (1963)

e. Motion to exclude evidence or testimony when no right of cross-examination:

i. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674 (9th Cir. 2005) (declarant

must be unavailable and must not be fundamentally unfair to admit statements) ii. Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir.1988) (ex-spouse must be

available to testify or else admission of hearsay statement is fundamentally unfair)


iii. Cinapian v. Holder, 567 F.3d 1067, 1075 (9th Cir. 2009) (holding “the combination of the government’s failure to disclose the DHS forensic reports in advance of the hearing or to make the reports’ author available for cross-examination and the IJ’s subsequent consideration of the reports under these circumstances denied Petitioners a fair hearing.”);

iv. Shin v. Mukasey, 547 F.3d 1019, 1024-25 (9th Cir. 2008) (admission of deposition testimony from former federal immigration official did not violate due process where official was cross-examined by alien’s counsel during the deposition, and official was made available during alien’s hearing if additional testimony was needed);

2. Motions to Suppress:

a. Government has burden of proving alienage by clear, convincing, and unequivocal evidence.

i. 8 CFR 1240.8(c) (c) Aliens present in the United States without being admitted or paroled. In the case of a respondent charged as being in the United States without being admitted or paroled, the Service must first establish the alienage of the respondent. Once alienage has been established, unless the respondent demonstrates by clear and convincing evidence that he or she is lawfully in the United States pursuant to a prior admission, the respondent must prove that he or she is clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged.

b. Regulatory i. Matter of Garcia-Flores, 17 I&N Dec. 325, 328 (BIA 1980).

ii. regulatory violations require termination where 1) the regulation serves a “purpose of benefit to the alien,” and 2) “the violation prejudiced interests of the alien which were protected by the regulation.”

iii. Prejudice not required where regulation at issue protects a fundamental right. Leslie v. Attorney Gen. of U.S., 611 F.3d 171, 182 (3d Cir. 2010)

iv. Sample regulations:

1. 8 C.F.R. 287.8(b): individualized suspicion before detaining alleged non-

citizens based on articulable facts

2. 8 C.F.R. 287.8(c)(2)(ii) requires agents to obtain a warrant prior to arrest unless the officer has reason to believe that the person is likely to escape before a warrant can be obtained.

c. Constitutional

i. Fourth Amendment: INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) 9no Fourth Amendment Suppression unless there was an egregious constitutional violation)

ii. Fifth Amendment: coerced statements


1. the government may not engage in conduct that “shocks the conscience” or interferes with rights “implicit in the concept of ordered liberty.” See Rochin v. California, 342 U.S. 165 (1952); Palko v. Connecticut, 302 U.S. 319 (1937).

2. Matter of Garcia, 17 I. & N. Dec. 319, 320 (BIA 1980); Bong Youn Choy v. Barber, 279 F.2d 642, 647 (9th Cir.1960)

d. Resources: i. http://www.legalactioncenter.org/clearinghouse/litigation-issue-

pages/enforcement-motions-suppress

e. FOIA/PRA requests


McKinney Outline II. Motions for Change of Venue A. Sources of Law and Guidance

1. Regulation – 8 C.F.R. § 1003.20 2. Matter of Rahman, 20 I&N Dec. 480 (BIA 1992) 3. OPPM 01‐02, “Changes of Venue” (accessed on April 15, 2011 at

http://www.justice.gov/eoir/efoia/ocij/oppm01/OPPM01‐02.pdf) 4. IJ Benchbook, accessed on April 15, 2011 at

http://www.justice.gov/eoir/vll/benchbook/tools/Motions%20to%20Reopen%20Guide.htm

B. Lesser Standard for Minors: Neal, "Operating Policies and Procedures

Memorandum 07‐01," posted on AILA InfoNet Doc. No. 07052360 (May 23, 2007). "In cases involving alien children, whether unaccompanied or not, unopposed motions for change of venue may be granted without requiring a pleading or the filing of an application for relief."

C. Detained Setting ‐ Venue Change Even Possible?

1. Immigration judges technically have the authority to change venue in removal proceedings even in cases where the applicant is being held in custody. Matter of Dobere, 20 I &N Dec. 188, 188 (BIA 1990) (respondent transferred from New York to Oakdale; venue request from Oakdale back to NYC granted).

2. However, while a respondent's place of residence may be relevant, it may

be outweighed by demonstration that DHS would be prejudiced by such a change of venue. Matter of Rahman, 20 I&N Dec. 480 (BIA 1992).

D. The reality of pleadings being resolved before venue changed

1. OPPM 01‐02: "Prior to granting a motion for COV, the assigned Immigration Judge should make every effort, consistent with procedural due process requirements, to complete as much of the case as possible in the time available. Specifically, the judge should attempt to obtain pleadings; resolve the issue of deportability, removability, or


inadmissibility; determine what form(s) of relief will be sought; set a date certain by which the relief application(s), if any, must be filed with the sending court; and state on the record that failure to comply with the filing deadline will constitute abandonment of the relief application(s) and may result in the judge rendering a decision on the record as constituted."

2. As a result, AILA continues to receive reports of IJ's requiring concessions

prior to changing venue. This is not proper and can be reported to AILA EOIR Liaison committee. See AILA‐EOIR Liaison Spring 2011 Meeting Agenda Questions and Answers, accessed on April 15, 2011 at http://www.justice.gov/eoir/statspub/eoiraila040611.pdf.

E. Do you really want to change venue? Forum concerns.

1. Know the IJ's. See, e.g., TRAC IJ Report, accessed on April 15, 2011 at http://trac.syr.edu/immigration/reports/judgereports/.

2. Know the Circuit. "The petition for review shall be filed with the court of

appeals for the judicial circuit in which the immigration judge completed the proceedings. " 8 U.S.C. § 1252(b)(2).

III. Motions to Continue

A. Sources of Law and Guidance

1. Regulation – 8 C.F.R. § 1003.29 (IJ may grant a motion for continuance for good cause shown); 8 C.F.R. § 1240.6 (providing that the Immigration Judge may grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application by the respondent or the DHS).

2. Practice Manual § 5.10(a). 3. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Velarde, 23 I&N

Dec. 253 (BIA 2002); Matter of Garcia, 16 I&N Dec. 653 (BIA 1978). 4. OPPM 05‐07 "Definitions and Use of Adjournment, Call‐up and Case

Identification Codes," accessed on April 15, 2011 at http://www.justice.gov/eoir/efoia/ocij/oppm05/05‐07.pdf

5. IJ Benchbook, accessed on April 15, 2011 at

http://www.justice.gov/eoir/vll/benchbook/tools/Motions%20to%20Reopen%20Guide.htm


B. For a Pending Petition

1. Although still subject to IJ discretion, motion to continue where a prima facie approvable visa petition is pending should generally be granted, if such approval would make the respondent immediately eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978).

2. However, where the visa petition is based on marriage and that marriage

was entered into after the initiation of proceedings, the BIA requires a showing of clear and convincing evidence indicating a strong likelihood that the marriage is bona fide. Matter of Velarde, 23 I&N Dec. 253 (BIA 2002).

3. IJ should consider (1) DHS response to the motion to continue; (2)

whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).

C. Padilla Motions to Continue: Now that the failure to advise of the risk of

deportation could constitute ineffective assistance of counsel, should IJ's continue proceedings to allow the respondent to pursue post‐conviction relief?

1. There is certainly good cause for additional time where a respondent can

show a meaningful claim. See Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) (a conviction that has been vacated by the criminal court based upon a procedural or substantive defect in the underlying proceedings is no longer a conviction for immigration purposes). See also Padilla v. Kentucky, ___U.S.___, 130 S.Ct. 1473 (March 31, 2010); Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006); Matter of Rodriguez‐Ruiz, 22 I&N Dec. 1378, 1379‐80 (BIA 2000).

2. However, it remains completely subject to IJ discretion. The fact that a

respondent may be pursuing post‐conviction relief in the form of a collateral attack on a conviction in federal or state criminal court does not affect its finality for federal immigration purposes. Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992).


D. Rather than continue, what about a Motion to Waive the Master Calendar?

1. Practice Manual § 4.15(j) "Written pleadings. — In lieu of oral pleadings, the Immigration Judge may permit represented parties to file written pleadings, if the party concedes proper service of the Notice to Appear (Form I‐862)." Timely submission of written pleadings with a Motion to Waive the Master Calendar hearing can excuse you and your client from appearing for a brief hearing.

2. Appendix L of the Practice Manual provides example. See

http://www.justice.gov/eoir/vll/OCIJPracManual/appendix_L.pdf.