3 The Main PlayersU.S. Department of Justice, EOIR, Immigration Judges and BIAU.S. Department of Homeland Security,a) Immigration and Customs Enforcementb) U.S. Citizenship and Immigration ServicesState Court in SIJS casesThe Respondent and You
10 Two Types of Hearings in Immigration Court Master CalendarPreliminary and quickOften likened to criminal arraignmentPleading and Scheduling(Subsequent masters for filing applications for relief)IndividualUsually hoursEvidentiary trial on the meritsDecision - usually oral from the bench occasionally written10
11 Attorney Appearance Form- EOIR-28 Attorneys should observe the distinction between the Immigration Courts—Notice of Appearance (Form EOIR-28) - Immigration CourtThe 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 Attorneyor Representative Before the Immigration Court (Form EOIR-28) must bear anindividual attorneys current address and the attorneys signature in compliance withthe 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 orprinted clearly. Note that the EOIR ID number issued by EOIR through the eRegistryProcess 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 reviewFormal Reading of NTAPleadingsDesignation of reliefDesignation of country of removalFiling issuesAdvisalsDo not skip over analyzing of any of these steps.Finally, continuance or Scheduling of Individual Hearing1313
14 This is the kind of drawing you might use to explain immigration court to a child.
29 Individual Hearing Evidentiary Trial on the Merits Any preliminary mattersRemovability formally determined if not previously doneOpening statements (good to prepare but rarely permitted; very brief + focused on key issues)Respondent's case in chiefYou bear the burden on reliefRespondent 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 witnessesProffers if any as to additional witnessesGovernment's Witnesses (usually none)Closing Statements (typically allowed)Decision (oral or schedule for written)Reservation of appeal - either side30
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).3131
32 Practice Tips Know your statute, regulations and case law Deal with law in applicable circuitAll filings must comply with the Immigration Court Practice ManualCredibility of respondent and witnesses is keyRead all your documents
33 MotionsDetermine 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 EvidenceAlthough 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 examinationLack of opportunity for cross examination of affiantIncomplete document or reportUntimely filing of evidenceLack of compliance with immigration court rulesUnavailability of original document for inspectionAuthentication of documents
36 Standard Objections – Checklist (cont’d) Objections to questioningIrrelevantVagueMisstatement of testimony givenArgumentative; narrationPrejudicialCompound questionAsks for a conclusion for which witness not qualifiedAsked and answeredNonresponsive answer to question askedBeyond scopeLack of knowledgeFailure to lay a foundation
37 ExpertsRespondent 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 involvingunaccompanied 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 representativeor a guardian ad litem for unaccompanied juveniles. However, the Executive Office forImmigration Review encourages the use of pro bono legal resources for unaccompaniedjuveniles. For further information, see Chapter 2.2(b) (Legal service providers).(c) Courtroom orientation. Juveniles are encouraged, under the supervision ofcourt personnel, to explore an empty courtroom, sit in all locations, and practice answeringsimple questions before the hearing. The Department of Health and Human Services,Office of Refugee Resettlement, provides orientation for most juveniles in their nativelanguages, explaining Immigration Court proceedings.(d) Courtroom modifications. Immigration Judges make reasonablemodifications for juveniles. These may include allowing juveniles to bring pillows, or toys,permitting juveniles to sit with an adult companion, and permitting juveniles to testifyoutside 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
40 Appeals Notice of Appeal to Board of Immigration Appeals Form EOIR-26 Fee Waiver EOIR-26A if neededMust be received within 30 days of IJ Decision; No Mailbox Rule.Notice of Appearance (Form EOIR-27) - Board of Immigration AppealsConsult BIA Practice Manual atFederal Court appealsMotion to re-open (can be brought to Immigration Court or BIA – wherever last action in the case took place)40
41 WHAT DIFFERENCE DOES A LAWYER MAKE? 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.