Motion to change venue

Motion to change venue

How do you transfer a removal case to another immigration court?

If you were denied asylum at the interview, you will be served with a Notice to Appear in immigration court when you come to pick up your decision. Immigration court has the same meaning as deportation court. You are in removal proceedings from the moment you were served with a Notice to Appear. Removal proceedings can be fast or they can drag for years. While in removal proceedings, it is not uncommon for a respondent to move to another city or state. Every time respondent in removal proceedings changes his address, he or she has a duty to notify the court and the government of the new address. Change of address in removal proceedings is done on form EOIR-33. You have five days from the time that you move to notify the immigration court of the change of address.

Can the venue be changed to another immigration court by filing form EOIR-33?

Form EOIR-33 is not sufficient to change venue to another immigration court, a motion to change venue should be filed. There is no official template for the motion to change venue. Nevertheless, motion to change venue must satisfy certain requirements articulated in the practice manual. Every motion to change venue must have a title page, a draft order of the immigration judge, and proof of service. 

The order of documents in a motion to change venue:

  1. Form EOIR-28 (if you are represented by an immigration lawyer in immigration court);
  2. Title page with the words “MOTION TO CHANGE VENUE”;
  3. Body of the motion where change of venue to another court is requested;
  4. Supporting documents with a table of exhibits. For example, you may want to submit a copy of your id or driver’s license with your new address in another state, lease agreement with the new address, etc.;
  5. Draft order of the immigration judge;
  6. Signed proof of service certifying that the trial attorney was served with a copy of the motion to change venue.

Contents of the motion to change venue:

Your motion to change venue must contain the following information:

  1. The date and time of your next court hearing;
  2. You must respond to the charges in the Notice to Appear (form I-862): admit or deny the factual allegations, concede or deny the charge of removability;
  3. You must designate or decline to designate the country of removal;
  4. If you are planning to apply for asylum or some other form of relief from removal, you must state that in your motion to change venue;
  5. Your new residential address and phone number;
  6. If your mailing address has changed, you must fill out and include a form EOIR-33;
  7. Detailed explanation why you are requesting the change of venue;

Do you need to appear at a scheduled hearing if you have filed a motion to change venue?

If the change of venue has been denied or the judge has not ruled on your motion to change venue, you will have to appear at the scheduled hearing. If you fail to appear, you will be removed in absentia. 

Government attorney must have enough time to respond to your motion to change venue. Therefore, if you filed your motion to change venue less than fifteen days before your hearing, the immigration judge will not order change of venue, you will have to appear at the hearing, and the government attorney may ask the judge for more time to respond to the motion to change venue in writing.

Is it possible to file a motion to change venue if your case was assigned to an immigration judge who is unlikely to grant you the requested relief?

When your case is filed with an immigration court, it is randomly assigned to an immigration judge. That judge will handle your case from start to finish. If the judge orders removal, you may file an appeal with the Board of Immigration Appeals. If your appeal is successful, the case will be remanded to the same immigration judge who ordered you removed. The process is structured this way to save judicial resources. The immigration judge who adjudicated your case already knows the facts of the case, whereas the new immigration judge would have to study the evidence and testimony in the record.

Some immigration lawyers or notarios suggest transferring the case to another city or state if your case has been assigned to an immigration judge who is unlikely to grant you the requested relief. It is unethical to file a motion to change venue under such circumstances. Respondent in removal proceedings should not be shopping for a judge. Motion to change venue should be filed only if respondent is moving to another jurisdiction to live, work, or study.

What are the chances that the immigration judge will grant your motion to change venue?

If you have had individual hearings before the judge already, it is unlikely that the immigration judge will grant your motion to change venue. If, however, you were just recently placed in removal proceedings, the immigration judge has not reviewed the evidence in your case, the government attorney does not have witnesses residing in the jurisdiction of the immigration court, and you stated a valid reason for the change of venue, the immigration judge will likely grant your motion to change venue. 

What are the consequences of the change of venue?

If you were denied asylum at an interview and you have not received an employment authorization document, the motion to change venue will stop the clock for your employment authorization. By filing a motion to change venue you are causing delay in your removal case. Therefore, the employment authorization clock will be stopped until the first calendar hearing in immigration court where you will have a chance to start the clock again. The decision to file a motion to change venue is strategically important. Please make sure you consult with an immigration attorney before filing a motion to change venue if you want to preserve your eligibility for employment authorization. 

Do you need an attorney to file a motion to change venue?

If you were placed in removal proceedings, you should seek advice of an immigration attorney who has removal defense experience. You can find information about how to select an immigration lawyer here. You do not have to hire an immigration attorney to represent you in removal proceedings right away. Immigration attorney can help you prepare the motion to change venue. Once the venue is changed, you can then look for a local immigration attorney to handle your case. 

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