28 CFR § 68.10 - Motion to dismiss for failure to state a claim upon which relief can be granted.

---
identifier: "/us/cfr/t28/s68.10"
source: "ecfr"
legal_status: "authoritative_unofficial"
title: "28 CFR § 68.10 - Motion to dismiss for failure to state a claim upon which relief can be granted."
title_number: 28
title_name: "Judicial Administration"
section_number: "68.10"
section_name: "Motion to dismiss for failure to state a claim upon which relief can be granted."
chapter_name: "DEPARTMENT OF JUSTICE"
part_number: "68"
part_name: "RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD"
positive_law: false
currency: "2026-03-24"
last_updated: "2026-03-24"
format_version: "1.1.0"
generator: "[email protected]"
authority: "5 U.S.C. 301, 554, 557(b); 8 U.S.C. 1103, 1324a, 1324b, and 1324c; 28 U.S.C. 509, 510, and 2461 note."
cfr_part: "68"
---


# 68.10 Motion to dismiss for failure to state a claim upon which relief can be granted.

(a) The respondent, without waiving the right to offer evidence in the event that the motion is not granted, may move for a dismissal of the complaint on the ground that the complainant has failed to state a claim upon which relief can be granted. The filing of a motion to dismiss does not affect the time period for filing an answer.

(b) The Administrative Law Judge may dismiss the complaint, based on a motion by the respondent or without a motion from the respondent, if the Administrative Law Judge determines that the complainant has failed to state a claim upon which relief can be granted. However, in the prehearing phase of an adjudicatory proceeding brought under this part, the Administrative Law Judge shall not dismiss a complaint in its entirety for failure to state a claim upon which relief may be granted, upon his or her own motion, without affording the complainant an opportunity to show cause why the complaint should not be dismissed.

[Order No. 2203-99, 64 FR 7075, Feb. 12, 1999]