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Procedures in Immigration Court 101: From Master to Merits

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Presentation on theme: "Procedures in Immigration Court 101: From Master to Merits"— Presentation transcript:

1 Procedures in Immigration Court 101: From Master to Merits
Presented by: Michelle L. Saenz-Rodriguez, Saenz-Rodriguez & Associates, P.C Karen Grisez, Fried, Frank, Harris, Shriver & Jacobson LLP .

2 Anatomy of Removal Proceedings
© 2010 American Immigration Lawyers Association

3 The Main Players U.S. Department of Justice, EOIR, Immigration Judges and BIA U.S. Department of Homeland Security, a) Immigration and Customs Enforcement b) U.S. Citizenship and Immigration Services State Court in SIJS cases The Respondent and You

4 Notice to Appear: The Charging Document
What is an NTA? Did the client receive it? Who signed it? Issuance of the NTA v. Commencement of Proceedings © 2010 American Immigration Lawyers Association

5 What is Required on the NTA? INA §239/ 8 CFR §239
(A) The nature of the proceedings against the alien (B) The legal authority under which proceedings are conducted (C) The acts or conduct alleged to be in violation of law (D) The charges against the alien and the alleged violations (E) The alien may be represented by counsel and the alien will be provided a period of time to secure counsel and a current list of counsel (F) Alien must provide an address and telephone number where he may be contacted (G) Time and place of where proceedings are to be held © 2010 American Immigration Lawyers Association

6 What Constitutes Proper Service
Personal Service of NTA If not practicable-regular mail-last known address Service upon Counsel of record Presumption that if it was mailed, then received by alien. (Matter of M-D, 12 I&N Dec. 540 (BIA 2002)) © 2010 American Immigration Lawyers Association

7 You’ve Got the NTA – Now What ?
Can the government sustain the legal charges against your client? Does the factual allegation relate to the alleged ground of removal/ inadmissibility? Read all information very carefully Are the factual allegations correct? Does it contain all of the required information under the regulations? Was it signed by the right person? © 2010 American Immigration Lawyers Association

8 Burden of Proof – Removability
The Government has the burden of proof to establish that the alien is deportable by “clear and convincing evidence” – INA §240(c)(1) © 2010 American Immigration Lawyers Association

9 Jurisdiction and Venue
Jurisdiction is generally proper in any Immigration Court provided the Court has jurisdiction over the person (i.e., not a USC) Venue is proper in any Immigration Court generally closest to where the Respondent resides Change of Venue can be granted upon a showing of good cause. Consider whether you need to move for change of venue. Immigration Judges apply the law of the Circuit in which they sit (even where televideo crosses Circuits) © 2010 American Immigration Lawyers Association

10 Two Types of Hearings in Immigration Court
Master Calendar Preliminary and quick Often likened to criminal arraignment Pleading and Scheduling (Subsequent masters for filing applications for relief) Individual Usually hours Evidentiary trial on the merits Decision - usually oral from the bench occasionally written 10

11 Attorney Appearance Form- EOIR-28
Attorneys should observe the distinction between the Immigration Courts— Notice of Appearance (Form EOIR-28) - Immigration Court The Immigration Courts will not recognize an attorney based on a Form EOIR-27, whether filed with the Board or the Immigration Court. Accordingly, when a case is remanded from the Board to the Immigration Court, the attorney must file a new Form EOIR-28. Attorney information: The Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28) must bear an individual attorneys current address and the attorneys signature in compliance with the requirements of Chapter 3.3(b) (Signatures). When filing a paper Form EOIR- 28, all information required on the form, including the date, should be typed or printed clearly. Note that the EOIR ID number issued by EOIR through the eRegistry Process must be provided on the Form EOIR-28. *****It is highly recommended that the EOIR-28 Form be submitted on green paper

12 EOIR- Registration for Attorneys
Who Must Register? In order to practice before the Immigration Court or the Board of Immigration Appeals: Immigration Appeals attorneys and accredited representatives must register with EOIR’s eRegistry. See 8 C.F.R. §§ (f), (f), (a)(1), (a)(4). Registration is a two-step process, which consists of an online registration and an identity validation. Both steps must be completed in order for an attorney or accredited representative to be registered before EOIR.

13 Master Calendar Hearing
Service of Notice to Appear: Can be served in person or by regular mail. If counsel does not have the NTA, may request a copy from ICE OCC and/or request continuance to obtain and review Formal Reading of NTA Pleadings Designation of relief Designation of country of removal Filing issues Advisals Do not skip over analyzing of any of these steps. Finally, continuance or Scheduling of Individual Hearing 13 13

14 This is the kind of drawing you might use to explain immigration court to a child.

15 Bifurcated Proceedings: Removability
© 2010 American Immigration Lawyers Association

16 “Fundamental Fairness”
The formal rules of evidence in Immigration Court are very limited Most evidence is admissible as long as it is relevant and whether its use is fundamentally fair so as not to deprive the alien of due process of law Hearsay is admissible, i.e., I-213, but can be contested, affidavit testimony can be used as long as probative and fundamentally fair Explore the possibility of suppression motions © 2010 American Immigration Lawyers Association

17 Don’t Be Afraid to Object
If the Government tries to bring in irrelevant issues that are prejudicial and seem unfair – then object If the I-213 is not factually correct based on what your client is telling you – then object to its admission © 2010 American Immigration Lawyers Association

18 What Do They Have to Prove?
Alienage – Can the Government prove that your client is an “alien”? Deportability – Can they prove that your client is subject to removal by clear and convincing evidence? © 2010 American Immigration Lawyers Association

19 Contesting Removability
© 2010 American Immigration Lawyers Association

20 Strategic Considerations
What is the ultimate goal in the case? Is there viable relief available? Do I need more time? Will contesting removal have an impact on my ultimate goal of discretionary relief? Will the TA hold this against my client because we are making him do his job? Will I annoy the IJ and will my client be the one to suffer? © 2010 American Immigration Lawyers Association

21 Pleading Suggestions Be polite but firm. DO NOT be bullied into giving up arguments. You will soon gain a reputation for being thorough and effective. Even if you know that the IJ is going to rule against you, you must make a record for appeal. Be prepared for resistance. Most lawyers admit the charges and focus on relief. © 2010 American Immigration Lawyers Association

22 Examine the Statute The first step is to read the ground of removability. Each ground has elements and can be interpreted in different ways. The charges on the NTA are not facts, they are allegations that the Government must prove. © 2010 American Immigration Lawyers Association

23 Bifurcated Proceedings: Relief
© 2010 American Immigration Lawyers Association

24 Types of Relief in Removal Proceedings
Adjustment of Status Special Immigrant Juvenile Cases (SIJ) Asylum/Withholding/CAT U/T/VAWA applications Voluntary Departure (offered to UAC’s in some courts) Prosecutorial Discretion © 2010 American Immigration Lawyers Association

25 Continuances for Adjudication
Most Courts will allow continuances for the adjudication of underlying applications by USCIS (SIJ Cases, I-130 Cases) Some Courts may administratively close cases while underlying applications are pending © 2010 American Immigration Lawyers Association

26 Filing Application in Court
Must follow the Instructions for Filing which are provided by the Court Fees are paid to USCIS with a copy of the application Original applications and proof of fee receipt are filed with the Court Fee Waivers are adjudicated by the Court © 2010 American Immigration Lawyers Association

27 Supporting Documents Documents can make or break your case
Review everything prior to submitting to the Court Provide documents to prove up each statutory eligibility ground as well as each discretionary factor © 2010 American Immigration Lawyers Association

28 Witnesses Must provide a witness list to the Court prior to merits hearing Provide a summary of what the witness will testify to on the witness list Provide an affidavit from each witness Effective use of offers of proof Witness availability for cross-examination Motions for telephonic testimony © 2010 American Immigration Lawyers Association

29 Individual Hearing Evidentiary Trial on the Merits
Any preliminary matters Removability formally determined if not previously done Opening statements (good to prepare but rarely permitted; very brief + focused on key issues) Respondent's case in chief You bear the burden on relief Respondent normally testifies first; others out of order sometimes possible. 29

30 Individual Hearing (cont’d)
Cross-examination (often more extensive by IJ than by DHS) Other lay and/or expert witnesses Proffers if any as to additional witnesses Government's Witnesses (usually none) Closing Statements (typically allowed) Decision (oral or schedule for written) Reservation of appeal - either side 30

31 Burdens of Proof - Relief
Applicant for admission must prove that s/he is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212 or, by clear and convincing evidence, that s/he is lawfully present in US. §240(c)(2). Burden on respondent seeking relief to establish that s/he satisfies eligibility requirements, and with respect to relief requiring discretion, that the noncitizen merits favorable exercise of discretion. INA §240(c)(4). 31 31

32 Practice Tips Know your statute, regulations and case law
Deal with law in applicable circuit All filings must comply with the Immigration Court Practice Manual Credibility of respondent and witnesses is key Read all your documents

33 Motions Determine which motions you need to file as early on as possible. Make sure to comply with filing deadlines and motions requirements under ICPM. Contact ICE Office of Chief Counsel to determine its position on motion. Try for unopposed motions wherever possible and indicate that clearly. Serve copy on ICE and include Certificate of Service. See Chapter Five, Immigration Court Practice Manual.

34 Rules of Evidence Although Federal Rules of Evidence do not apply in removal proceedings, spirit of the rules do apply. Note: Hearsay is expressly permitted. Any evidence offered must be probative and its use must be fundamentally fair to guarantee due process of law. 34

35 Standard Objections - Checklist
In order for evidence to be admissible, must be material and relevant to the issue, must be reliable and its admission must be fundamentally fair. Checklist of objections: Objections to documentation: Asylum office interview notes/summary report – incomplete or irrelevant; not subject to cross examination Lack of opportunity for cross examination of affiant Incomplete document or report Untimely filing of evidence Lack of compliance with immigration court rules Unavailability of original document for inspection Authentication of documents

36 Standard Objections – Checklist (cont’d)
Objections to questioning Irrelevant Vague Misstatement of testimony given Argumentative; narration Prejudicial Compound question Asks for a conclusion for which witness not qualified Asked and answered Nonresponsive answer to question asked Beyond scope Lack of knowledge Failure to lay a foundation

37 Experts Respondent may present expert testimony as part of right to present evidence. Not required but can be very helpful to document individual trauma, medical or psychological conditions, country conditions. Look to FRE 702 as a guide to qualifying your expert. IJ must find that the proposed expert witness has knowledge that will be helpful to assist in determining a fact in issue. Include expert affidavit and CV as part of supporting documentation.

38 Treatment of Juveniles in Court
(a) Scheduling. Immigration Courts do their best to schedule cases involving unaccompanied juveniles on a separate docket or at a fixed time in the week or month, separate and apart from adult cases. (b) Representation. An Immigration Judge cannot appoint a legal representative or a guardian ad litem for unaccompanied juveniles. However, the Executive Office for Immigration Review encourages the use of pro bono legal resources for unaccompanied juveniles. For further information, see Chapter 2.2(b) (Legal service providers). (c) Courtroom orientation. Juveniles are encouraged, under the supervision of court personnel, to explore an empty courtroom, sit in all locations, and practice answering simple questions before the hearing. The Department of Health and Human Services, Office of Refugee Resettlement, provides orientation for most juveniles in their native languages, explaining Immigration Court proceedings. (d) Courtroom modifications. Immigration Judges make reasonable modifications for juveniles. These may include allowing juveniles to bring pillows, or toys, permitting juveniles to sit with an adult companion, and permitting juveniles to testify outside the witness stand next to a trusted adult or friend. (e) Detained juveniles. For additional provisions regarding detained juveniles, see Chapter 9.2 (Detained Juveniles

39 Immigration Court Practice Manual
Covers all aspects of Immigration Court proceedings Follow guidelines carefully with respect to filing deadlines Form of filing (i.e., style) is carefully spelled-out READ it or RISK rejected filings! © 2010 American Immigration Lawyers Association

40 Appeals Notice of Appeal to Board of Immigration Appeals Form EOIR-26
Fee Waiver EOIR-26A if needed Must be received within 30 days of IJ Decision; No Mailbox Rule. Notice of Appearance (Form EOIR-27) - Board of Immigration Appeals Consult BIA Practice Manual at Federal Court appeals Motion to re-open (can be brought to Immigration Court or BIA – wherever last action in the case took place) 40

Under current U.S. law, there is no right to appointed counsel in immigration removal proceedings, which are considered civil, rather than criminal in nature, even if the respondent is a child. Without a volunteer lawyer, the child will have no voice.

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