Ch 5-Motions before the Immigration Court - AILA webCLE

Immigration Court Chapter 5
Practice Manual Motions before the Immigration Court
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.
updates: www.usdoj.gov/eoir 88 this page last revised: April 1, 2008