Ch 5-Motions before the Immigration Court - AILA webCLE

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Immigration Court Chapter 5 Practice Manual Motions before the Immigration Court (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. A motion 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 “MOTION TO RECONSIDER” and comply with the deadlines and requirements for filing. See subsection updates: www.usdoj.gov/eoir 92 this page last revised: April 1, 2008
Immigration Court Chapter 5 Practice Manual Motions before the Immigration Court (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). updates: www.usdoj.gov/eoir 93 this page last revised: April 1, 2008
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Page 17 and 18: MOTIONS 127 I. Motions Before Entry
Page 19 and 20: MOTIONS 129 6. The exclusionary rul
Page 21 and 22: MOTIONS 131 D. MOTION TO WITHDRAW A
Page 23 and 24: MOTIONS 133 6. The convenience of c
Page 25 and 26: MOTIONS 135 5. A motion to reconsid
Page 27 and 28: MOTIONS 137 cretion to deny reopeni
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356 IMMIGRATION PRACTICE POINTERS,
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358 IMMIGRATION PRACTICE POINTERS,
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