How to File a Motion to Substitute Counsel in Immigration Court

To file a motion to substitute counsel in immigration court, your new attorney submits a written Motion to Substitute Counsel together with a completed Form EOIR-28 through the EOIR Courts and Appeals System (ECAS), serves copies on your prior attorney and the Department of Homeland Security, and waits for the Immigration Judge to grant the substitution by signed order. Done correctly, it is a paperwork exercise. Done sloppily, it gets denied or, worse, leaves you exposed at your next hearing.

What the Motion Must Contain

The EOIR Policy Manual identifies four items every motion to substitute counsel must include.¹ Miss one and the motion is vulnerable to denial before DHS even weighs in.²

The scope of the substitution: whether the new attorney is stepping in for all proceedings, for custody and bond proceedings only, or for everything except custody and bond.
A brief reason for the change, consistent with applicable ethical rules. A sentence or two is enough; the motion is not the place to litigate what went wrong with the old attorney.
Evidence that the prior attorney has been notified. Serving a copy of the motion and the new Form EOIR-28 on the outgoing attorney satisfies this.
Evidence that you, the client, consent to the change. This is typically a signed statement or declaration attached to the motion.

The motion can be filed in writing or made orally at a hearing.³ Written is the norm and creates the cleanest record. An oral motion is a fallback if your representation blows up right before a scheduled appearance.

Form EOIR-28 Goes With Every Motion

The motion must be accompanied by a completed Form EOIR-28, the Notice of Entry of Appearance as Attorney or Representative.¹ A few details matter here.

Every state bar to which the attorney has ever been admitted must be listed on the form, including bars where the attorney is no longer active or has faced discipline. The scope of representation box on the form (all proceedings, bond only, or all proceedings except bond) must match what the motion itself states. And when a paper version is used, it has to be the current version pulled from the EOIR website. Older versions are rejected.⁴

Serving the Prior Attorney and DHS

Before filing, the new attorney must serve copies of the motion and the executed Form EOIR-28 on two parties: the prior attorney and the DHS attorney handling the case.¹

The prior attorney does not have to consent or sign off. Service is what matters. If the outgoing attorney is unresponsive, keep records of every attempt: emails sent, certified mail receipts, phone logs. The court is looking for evidence of a genuine effort, not proof that the effort succeeded.

For DHS, the opposing party is always the DHS Office of Chief Counsel, not the Immigration Judge or the court. A Proof of Service (sometimes called a Certificate of Service) must be included with the filing, stating when, how, and to whom the documents were sent. Place it at the bottom of the filing package.⁵

Filing Through ECAS

The motion, Form EOIR-28, and supporting documents are filed through the EOIR Courts and Appeals System (ECAS). Electronic filing has been mandatory at all immigration courts and the Board of Immigration Appeals since February 2022.⁶ Uploading through ECAS creates an immediate, timestamped record under your case file.

To use ECAS, an attorney has to be registered through EOIR’s eRegistry. Registration is electronic but requires one in-person step: visiting the front window of the nearest immigration court with a photo ID to verify identity. No appointment is needed, and once registered, the attorney can appear before any immigration court nationwide.⁷ If your new attorney has never practiced in immigration court before, build in time for this step. It has to be done before they can file anything electronically.

If Any Documents Are Not in English

Everything filed with the court must be in English or accompanied by a certified English translation.⁸ Two situations come up often in substitution filings.

First, your consent declaration. If you sign a declaration written in English but you are not fluent in English, the filing needs a certificate of interpretation confirming that someone read the declaration to you in a language you understand before you signed.

Second, any foreign-language supporting document needs a typed, signed certification from the translator stating that the translator is competent in the language and that the translation is accurate. The translator’s address and phone number must also appear on the certification.⁸ Informal or uncertified translations get rejected.

What the Judge Does Next

The Immigration Judge reviews the motion to confirm it has everything: scope, reason, notification of the prior attorney, client consent, a properly completed Form EOIR-28, and proof of service on DHS. If it does, the judge issues a signed order that recognizes the new attorney of record and removes the prior one in a single step. No separate motion to withdraw is needed from the outgoing attorney.¹

Denials are not the norm when the paperwork is complete, but a judge can deny a motion before the opposing party responds if it fails to meet the procedural requirements.² Filing very close to a scheduled hearing can also draw scrutiny; judges tend to be wary of substitution motions that look like delay tactics.

One thing to plan around: granting the substitution does not postpone your next hearing. The EOIR Policy Manual states that granting the motion does not constitute a continuance and all parties must be prepared to proceed at the next scheduled date.¹ If your new attorney needs time to get up to speed, they must file a separate motion for a continuance explaining why. Switching lawyers, on its own, does not buy time.

The Prior Attorney Is Still on the Hook Until the Order Is Signed

Until the judge formally grants the substitution, your prior attorney remains the attorney of record and is responsible for your case, including appearing at any hearings in the meantime.¹ This holds even if you have already retained a new attorney and the motion is pending. If no one appears on your behalf at a hearing before the order is signed, you can face serious consequences, including an in absentia removal order.

Substitution vs. Withdrawal

If your current attorney simply wants to stop representing you and no replacement is lined up, that is a motion to withdraw, not a motion to substitute, and the requirements are different. A withdrawing attorney must include your last known address, the reasons for withdrawal, and evidence that you consented or an explanation of why consent could not be obtained. They must also show that they informed you (or made specific, documented efforts to inform you) of any pending deadlines, your next hearing date and time, and the consequences of missing either.¹ The substitution route is cleaner because a new attorney is already stepping in, so the court does not have to worry about leaving you unrepresented.

1
Executive Office for Immigration Review. EOIR Policy Manual – 5.4 – Changes in Representation
2
Executive Office for Immigration Review. EOIR Policy Manual – 4.12 – Response to Motion
3
eCFR. 8 CFR 1003.17
4
Executive Office for Immigration Review. EOIR Policy Manual – 5.3 – Entering an Appearance as the Practitioner of Record
5
Executive Office for Immigration Review. EOIR Policy Manual – 2.2 – Service on the Opposing Party
6
Executive Office for Immigration Review. EOIR Courts and Appeals System (ECAS) – Online Filing
7
Executive Office for Immigration Review. eRegistration Validation Process
8
Executive Office for Immigration Review. EOIR Policy Manual – 2.3 – Documents