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Wednesday, April 15, 2015

Difference between JOINT filing and CONSENT filing

As a practitioner in both Federal and State jurisdictions, I am often consulted on matters that cross between both types of Courts. A recent question posted to the American Immigration Lawyers Association (AILA) is a good example. In this case, a practitioner new to immigration law (Federal) was asking the difference between a joint filing with the opposing counsel, and a consent filing with the DHS attorney. Her question, in part, read:

I used to file "consent" motions in state criminal court when I had consulted with the prosecutor and they agreed on whatever I was asking for. I didn't have them [prosecutors] actually sign the motion...

I've been looking at a sample "joint" motion to admin close an immigration case, and there's a space for the DHS attorney to sign. Is that just a best option, or is it actually necessary for me to get OCC's (Office of Chief Counsel -- immigration equivalent of the "district attorney" for a particular court) signature on a joint motion?

Does it make a difference if I title my motion "consent" vs. "joint"?

A discussion on JOINT MOTIONS vs. CONSENT MOTIONS:


A consent motion is one that the opposing parties agrees to allow you to file – consent = no opposition. The other party consents to your filing, but takes no position on the matter.

A joint motion is one where you and another party (together) are requesting the Court take some action. A joint motion is much stronger than a consent motion. In a joint motion, all parties are arguing that the Court should grant the requested relief, and the facts alleged are true. The opposition has moved from merely agreeing to allow you to file, to actually arguing for the relief to be granted. To make an argument to the Court, counsel must sign the motion. Hence for a joint filing, all parties filing in joint must sign.

When the petitioner AND the government both file in joint (a joint motion -- in the example above, OCC and the petitioner), the government is actually obligated to argue on behalf of the motion, just as you are obligated to argue on behalf of the motion. The Court is obligated to view the requested relief as beneficial to the government (or other joint filing party) when factoring whether to grant the same, or not.

Oddly, I just had a joint motion for bond redetermination denied by the Superior Court in DC (client had a 3rd DUI and was being held on a show cause for probation violation). That is exceptionally rare, and despite my impassioned plea, and rather luke-warm, tepid support by the government, the judge did her own thing. Just goes to show no matter how strong a joint motion is, the final arbitor is always the judge!(laughing). Those of you who have had favorable plea agreements nixed by the Court are too aware of the odd quirks that a judge can take despite the agreement of all parties on how the case should move forward.

Do you have a procedural question or concern in Federal or State Court? Call us! We can help -- 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

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