Anatomy of Removal Proceedings 2010 American Immigration
Lawyers Association
Slide 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 3
Slide 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
Slide 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
Slide 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
Slide 7
Youve Got the NTA Now What ? 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? Can the government sustain the legal charges
against your client? Does the factual allegation relate to the
alleged ground of removal/ inadmissibility? 2010 American
Immigration Lawyers Association
Slide 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
Slide 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
Slide 10
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 2 - 4 hours Evidentiary trial on the
merits Decision - usually oral from the bench occasionally written
10
Slide 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
Slide 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 EOIRs eRegistry. See 8 C.F.R.
1001.1(f), 1292.1(f), 1292.1(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.
Slide 13
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
Slide 14
Slide 15
Bifurcated Proceedings: Removability 2010 American Immigration
Lawyers Association
Slide 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
Slide 17
Dont 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
Slide 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
Slide 19
Contesting Removability 2010 American Immigration Lawyers
Association
Slide 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
Slide 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
Slide 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
Slide 23
Bifurcated Proceedings: Relief 2010 American Immigration
Lawyers Association
Slide 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 UACs in some
courts) Prosecutorial Discretion 2010 American Immigration Lawyers
Association
Slide 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
Slide 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
Slide 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
Slide 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
Slide 29
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
Slide 30
30 Individual Hearing (contd) 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
Slide 31
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
Slide 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 32
Slide 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. 33
Slide 34
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
Slide 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 35
Slide 36
Standard Objections Checklist (contd) 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 36
Slide 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. 37
Slide 38
Treatment of Juveniles in Court 4.22 Juveniles (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
Slide 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
Slide 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
http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm.http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm
Federal Court appeals Motion to re-open (can be brought to
Immigration Court or BIA wherever last action in the case took
place) 40
Slide 41
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. WHAT
DIFFERENCE DOES A LAWYER MAKE?
