How to File a Motion to Withdraw as Counsel in Immigration Court

An attorney who wants to stop representing a client in immigration court must file a motion to withdraw as counsel in immigration court and obtain the immigration judge’s permission before stepping away.¹ Until that motion is granted, the attorney who filed Form EOIR-28 remains the practitioner of record and must appear at every scheduled hearing. The motion carries no filing fee and can be made orally or in writing, though written motions are the norm because they build a clear record.

When Withdrawal Is Required and When It Is Optional

Professional conduct rules separate mandatory withdrawal from permissive withdrawal, and the distinction shapes how a judge is likely to rule.

Withdrawal is mandatory when continuing the representation would force the attorney to violate professional conduct rules or other law, when a physical or mental condition prevents competent work, when the client fires the attorney, or when the client insists on using the attorney’s services to commit fraud despite being warned.² The fraud scenario appears in immigration cases more often than outsiders expect. An attorney who learns a client wants to submit fabricated documents or a false asylum claim is ethically obligated to withdraw, not merely permitted to.

Permissive withdrawal covers everything else, and the judge has discretion to say no. Typical grounds include a complete communication breakdown, the client’s persistent refusal to follow legal advice on strategy, or a loss of trust that makes effective representation impossible. Nonpayment is another common reason: when a client fails to meet obligations under a retainer agreement after reasonable warning, the attorney can seek to withdraw on the ground that continuing would create an unreasonable financial burden.² Conflicts of interest can also justify withdrawal, though they arise less often.

What the Motion Must Contain

At a minimum, the motion identifies the attorney and the client (including the client’s A-Number) and clearly requests permission to withdraw. The EOIR Policy Manual then adds specific content requirements.

The attorney must show evidence of notifying, or attempting to notify, the client of the withdrawal request, along with a description of the specific efforts made. That notice must cover pending deadlines, the date, time, and place of the next scheduled hearing, the importance of meeting those deadlines and appearing, and the consequences of failing to do so.³ The requirement exists to make sure the client is not blindsided by a hearing they never heard about.

The motion must also include evidence of the client’s consent to the withdrawal, or a statement explaining why consent could not be obtained.³ Attorneys generally avoid graphic detail about what went wrong, citing broader reasons like “professional considerations” or “irreconcilable differences” to avoid disclosing sensitive information about the attorney-client relationship.

Most motions also include a certificate of service confirming that a copy went to the client and to the DHS attorney, plus a proposed order the judge can sign.

How the Immigration Judge Decides

Immigration judges do not rubber-stamp these motions. The two main factors are timing and the stated reasons.³ A motion filed weeks before a hearing has a much better chance than one dropped on the court two days before an individual merits hearing. Late-stage requests draw heavy scrutiny because they almost always cause delays and leave the respondent scrambling.

The judge weighs the attorney’s reasons against the potential harm to the client. A complicated asylum case with a hearing next week may not clear the bar even for a legitimate communication breakdown, because the disruption is too great. With time before the next hearing and a genuine record of efforts to fix the underlying problem, approval is more likely.

If the Motion Is Denied

If the judge denies the motion, the attorney remains the client’s legal representative and must continue handling the case at all future hearings.³ The dynamic can be uncomfortable, but the court’s priority is preventing the client from being stranded without counsel at a critical moment. An attorney who abandons representation without court permission risks disciplinary action, including charges of failing to act with reasonable diligence and failing to carry a matter through to conclusion.⁴

What the Client Should Do Once Withdrawal Is Granted

Approval of the motion shifts a set of responsibilities back to the client immediately, and several of them are time-sensitive.

Update Your Address With the Court

While the attorney was on the case, official correspondence went to the attorney’s office. The moment withdrawal is granted, hearing notices, decisions, and filing deadlines start going directly to whatever address the court has on file. File Form EOIR-33/IC within five business days of any change to contact information. Even if the physical address has not changed, confirm the court’s information, because the attorney may have been listed as the contact address. Missing a hearing because notice went to the wrong place can produce an in absentia removal order, which can make the respondent ineligible for voluntary departure, cancellation of removal, and adjustment of status for ten years after the order becomes final.⁵

Ask for a Continuance to Find New Counsel

Immigration judges can continue proceedings for “good cause shown,” and losing counsel generally qualifies, at least the first time. Federal courts have found that denying a continuance to seek representation can amount to a denial of the statutory right to counsel, particularly when the record shows a realistic continuance would have allowed the person to find an attorney.⁶ The goodwill has limits. Courts have denied fourth and fifth continuance requests when the respondent could not show real efforts to find counsel. If a continuance is granted, use it: contact attorneys and legal aid organizations right away, and document those efforts.

Get Your File From Your Former Attorney

Under professional conduct rules adopted in every state, an attorney who stops representing a client must return the client’s materials and property upon request. That covers original documents, court filings, correspondence, and discovery, and in most jurisdictions the attorney’s work product where withholding it would harm the client going forward. Request the file in writing as soon as the withdrawal is happening, and keep a copy of the request. If the former attorney is unresponsive, a complaint can be filed with the state bar or, for practitioners authorized by EOIR, with the EOIR disciplinary counsel.

Find New Representation

EOIR maintains an official List of Pro Bono Legal Service Providers, made up of nonprofits and attorneys who have committed to providing at least 50 hours per year of free legal services in immigration court.⁷ The list is organized by court location, and the court should provide it on request. A new attorney will need to file a new Form EOIR-28 to become the practitioner of record.⁸ Until that form is filed, the court treats the respondent as unrepresented. If full representation is not available, Form EOIR-61 lets practitioners help with individual documents without becoming attorney of record.¹ Immigration court has no right to appointed counsel the way criminal court does, so the judge will not assign a lawyer.

Deadlines Do Not Pause

Court deadlines do not change or extend automatically because an attorney withdrew. Deadlines for submitting evidence, filing applications for relief, or responding to government motions remain in effect. If a deadline is approaching and no new counsel is in place, file what you can on your own rather than letting the date pass in silence. A judge is more forgiving of an imperfect filing than of a missing one.

1
eCFR. 8 CFR 1003.17 – Entry of Appearance
2
American Bar Association. ABA Model Rule 1.16 – Declining or Terminating Representation
3
United States Department of Justice. EOIR Policy Manual – 5.4 Changes in Representation
4
eCFR. 8 CFR 1003.102 – Grounds
5
EOIR Respondent Access. Change of Address Form (EOIR-33/IC)
6
U.S. Department of Justice. EOIR Policy Manual – Continuances
7
United States Department of Justice. List of Pro Bono Legal Service Providers
8
United States Department of Justice. EOIR Policy Manual – 5.3 Appearances Before the Immigration Court