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BIA Practice Manual

BIA Practice Manual
Chapter 5 - Motions before the Board

5.2 - Filing a Motion

(a) Jurisdiction

Motions must be filed in the right place.  See Appendix J (Filing Motions).  The Board may entertain motions only in those cases in which it has jurisdiction.

      (1) Cases never before the Board - The Board cannot entertain motions for cases that have never been before it.  Cases “never before the Board” include both appeals that were never filed and appeals that were rejected for a filing defect that was never remedied.

      (2) Cases pending before the Board - Where an appeal is pending before the Board, all motions regarding that appeal should be filed with the Board.

      (3) Cases already decided by the Board

           (A) Motions to reopen and motion to reconsider - As a general rule, where an appeal has been decided by the Board and no case is currently pending, a motion to reopen or a motion to reconsider may be filed with the Board.  See Chapters 5.6 (Motions to Reopen), 5.7 (Motions to Reconsider).  Parties should be mindful of the strict time and number limits on motions to reopen and motions to reconsider.  See Chapters 5.6(c) (Time Limits), 5.6(d) (Number Limits), 5.7(c) (Time Limits), 5.7(d) (Number Limits).

           (B) Motions subsequent to remand - Once a case has been remanded to the immigration judge, the only motion that the Board will entertain is a motion to reconsider the decision to remand.  All other motions must be filed with the immigration judge.  Motions to reconsider a remand order are not favored, and concerns regarding the decision to remand should be presented to the immigration judge.

           (C) Motions on appeals dismissed for lack of jurisdiction - Where an appeal has been dismissed for lack of jurisdiction, the Board cannot consider a motion to reopen.  See Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974).  The only motion that the Board may entertain is a motion to reconsider the Board’s finding that it lacks jurisdiction.

           (D) Motions on appeals dismissed as untimely - Where an appeal has been dismissed as untimely, the Board does not have jurisdiction to consider a motion to reopen.  The only motion that the Board may entertain is a motion to reconsider the Board’s finding that the appeal was untimely.  See Matter of Lopez, 22 I&N Dec. 16 (BIA 1998).

           (E) Motion on appeals affirmed without opinion - By regulation, the Board cannot entertain a motion based solely on an argument that the case should not have been affirmed without opinion.  See Chapter 4.15 (Summary Affirmance).  Otherwise, the Board retains jurisdiction over any motion to reconsider or motion to reopen filed after a summary affirmance order.  See Chapters 5.6 (Motions to Reopen) and 5.7 (Motions to Reconsider).

(b) Form

There is no official form for filing a motion before the Board.  Motions should not be filed on a Notice of Appeal (Form EOIR‑26), which is used exclusively for the filing of appeals.

Motions and supporting documents must comply with the general rules and procedures for filing.  See Chapter 3 (Filing with the Board).  The Board prefers that motions and supporting documents be assembled in a certain order.  See Chapter 3.3(c)(1)(B) (Motions).

A motion should be characterized and labeled as accurately as possible.  The Board construes a motion according to its content, not its title, and applies time and number limits accordingly.  See Chapter 5.3 (Motion Limits).

Motions should clearly contain all pertinent information, and the Board recommends that parties use captions containing the following material:

  • title (Example: “Respondent’s Motion to Reopen”)
  • the full name (as it appears on the charging document) for each respondent included in the motion
  • the A-number for each respondent involved in the motion
  • the type of hearing or adjudication underlying the motion (e.g., removal, deportation, exclusion, bond, visa petition)
  • the adjudicator whose decision underlies the motion (e.g., the immigration court, the DHS officer, or the Board), where appropriate

All motions must be made in writing, signed, and served on all parties.  The manner of completion of service of documents on the opposing party depends on whether both parties are participating in ECAS, as explained in Chapter 3.2 (Service).  A motion must identify all persons included in the motion.  See Chapter 5.1(a) (Parties).  A motion must state with particularity the grounds on which it is based and must identify the relief or remedy sought by the moving party.

If a motion involves a detained or incarcerated respondent, the motion should clearly state that information.  The Board recommends that the cover page to the motion be prominently marked “DETAINED” in the upper right corner and highlighted, if possible.  See Appendix E (Cover Pages).

(c) Proof of Service

All motions must be served on the other party and must contain Proof of Service.  See Chapter 3.2 (Service), Appendix F (Cert. of Service).

(d) Motion Fee and Fee Waivers

Where required, a motion must be accompanied by the appropriate filing fee, fee receipt, or Fee Waiver Request (Form EOIR‑26A).  See Chapter 3.4 (Filing Fees).

(e) Copy of Underlying Order

Motions to reopen and motions to reconsider should be accompanied by a copy of the Board’s order.

(f) Evidence

Statements made in a motion are not evidence.  If a motion is predicated upon evidence that was not made part of the record by the immigration judge, that evidence should be submitted with the motion.  Such evidence includes sworn affidavits,  declarations under the penalty of perjury, and documentary evidence.  The Board will not suspend or delay adjudication of a motion pending the receipt of supplemental evidence.

Any material that is not in the English language must be accompanied by a certified English translation.  8 C.F.R §§ 1003.2(g)(1), 1003.33.  See Chapter 3.3(a) (Language).  Documents regarding criminal convictions must comport with the requirements set forth in 8 C.F.R. § 1003.41.

(g) Application for Relief

A motion based upon eligibility for relief must be accompanied by a copy of the application for that relief, if an application is normally required.  See 8 C.F.R. § 1003.2(c)(1).

The application for relief must be duly completed and executed in accordance with the requirements for such relief.  The original of an application for relief is generally not required but should be held by the filing party for submission to the immigration judge or DHS following the Board’s ruling on the motion.  See Chapter 12.3 (Submitting Completed Forms).  The copy that is submitted to the Board 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 application for that relief (Form I‑485) should be filed with the motion, along with the necessary documents.  See subsection (h), below.

Application fees are not paid to the Board and should not accompany the motion.  Fees for applications should be paid if and when the case is remanded to the immigration judge in accordance with the filing procedures for that application.  See Chapter 3.4(i) (Application Fees).

(h) Visa Petitions

If a motion is based on adjustment of status and there is an underlying visa petition that has been approved, evidence of the approved visa petition should accompany the motion.  When a petition is subject to visa availability, evidence that a visa is immediately available to the beneficiary should also accompany the motion (e.g., a copy of the State Department’s Visa Bulletin reflecting that the petition 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 should accompany the motion.  If the visa petition has already been filed with DHS, evidence of that filing should accompany the motion.

Parties are advised that, in certain instances, an approved visa petition is required.  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 Board 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) Oral Argument

The Board generally does not grant requests for oral argument on a motion.  See Chapter 8.2(b) (Motions).

(j) Draft Orders

Parties should not include draft orders in the motion filing.  The Board always issues its own order.

(k) Confirmation of Receipt

The Board issues filing receipts for motions to reopen and motions to reconsider.  The Board does not issue filing receipts for other types of motions.  See Chapter 3.1(d) (Filing Receipts).  The Board will, however, return a conformed copy of a filed motion if it complies with Chapter 3.1(d)(3) (Conformed copies).