ABA Pro Bono Training: The Essentials of Immigration Court Representation · · 2017-12-22– Brief Overview of Relief Available in Removal Proceedings ... removal and asylum proceedings

ABA Pro Bono Training: The Essentials of Immigration Court Representation

Introduction to Immigration Court Proceedings

Dree CollopyCo-panelist: Christina Fiflis

Presentation Overview

Representation of Clients in Immigration Court Overview– The Notice to Appear and Pleadings – Brief Overview of Relief Available in Removal Proceedings – The Immigration Court Practice Manual– Working with Opposing Counsel

The Fundamentals of Burden of Proof, Evidence, and Witness Examination

– The Shifting Burdens of Proof– The Abridged Rules of Evidence– Submission of Evidence/Authentication/Meeting your Burden– Preparation of Witnesses; Direct, Cross, and Re-Direct

Examination; Opening and Closing Statements – Common Motions Used in Immigration Court

1. The Notice to Appear and Pleadings2. Master Calendar & Individual Hearings3. Most Common Forms of Relief4. The Immigration Court Practice Manual5. Working with Opposing Counsel

Representation of Clients in Immigration Court

The Notice to Appear and Pleadings in Immigration Court

Commencement of Proceedings – The main players– Identification of non-citizens for removal by DHS – Enforcement of U.S. Immigration Laws – Useful Tools

Charging Document– What is a Notice to Appear?– Initial considerations – Challenging the Notice to Appear

Pleadings in Immigration Court

Commencement of Proceedings

Immigration Court proceedings begin the lodging of a charging document with the Immigration Court

– Prior to April 1, 1997: Exclusion Proceedings, Form I-122– Prior to April 1, 1997: Deportation Proceedings, Form I-221– Effective April 1, 1997: Removal Proceedings, Form I-862

The Main Players:– U.S. Department of Justice, Executive Office for Immigration

Review, Immigration Judges– U.S. Department of Homeland Security, Immigration and

Customs Enforcement– The Respondent and You

Commencement of Proceedings:Identification and Enforcement

Identification of Non-citizens for Removal by DHS – Through U.S. Citizenship and Immigration

Services– Through U.S. Customs and Border Protection at a

port of entry, or 110 miles of the border– Through U.S. Immigration and Customs

Enforcement (tips, raids, local law enforcement referrals, safe communities program, etc.)


Enforcement of U.S. Immigration Laws– Under federal authority, but delegated to certain state officials

under INA § 287(g); INA § 275– Powers to stop, search, seize, and arrest are found at INA § 287

and 8 C.F.R. § 287.8(b)(1)– Extremely broad power as long as liberty is not restrained– No reasonable suspicion necessary at the border– Expectation of privacy is less at the border (expansive search

power)– DHS may briefly detain an individual where there is reasonable

suspicion (not probable cause) that the person is engaging in illegal activity or is in the U.S. unlawfully

– Home Searches: search warrant and probable cause required– Employment Searches: search warrant, consent of owner or

exigent circumstances required (but not necessary for public areas)


Due process rights exist for non-citizens– Accardi v. Shaughnessy, 347 U.S. 260 (1954); Landon v.

Placencia, 459 U.S. 21 (1982); Pyler v. Doe, 457 U.S. 202 (1982)

Remedies for Due Process/Statutory and Regulatory Violations in Enforcement

– Motions to Suppress and Terminate Proceedings INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) – egregious

violations of the 4th Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained

Commencement of Proceedings: Useful Tools

Where is the court? When is the hearing?– http://www.justice.gov/eoir/– Immigration Court Information System: #1-800-898-7180

Who is representing DHS?– http://www.ice.gov/about/district_offices.htm

If your client is detained, who should you contact?– http://www.ice.gov/about/dro/contact.htm– Online Detainee Locator System:

https://locator.ice.gov/odls/homePage.do

Charging Document: the NTA

What is a Notice to Appear?– Form I-862– Charging Document that commences removal proceedings

(INA § 239(a)) Initial Considerations:

– Is the individual subject to proceedings? – Is he/she removable as charged in the NTA?– If so, is he/she eligible for relief? – Identify deficiencies in the NTA or in the service of the NTA

Statutory and regulatory requirements Due process

Charging Document:Identifying Deficiencies

Specific Requirements for NTAs set forth at INA §239; 8 CFR §§ 239.2, 1003.20, 1239.2.

– The NTA must state: The nature of the proceedings The legal authority for the proceedings The acts or conduct alleged to be in violation of law The charges against the individual and the statutory authority

for those charges Notification of the right to be represented by counsel Notification of the requirement that the Respondent must

provide a current and updated address/phone number – Service and issuance of the NTA must not be defective

Must be served in person, or “if personal service is not practicable,” through mail to the Respondent or counsel of record

Charging Document:Identifying Deficiencies

Due Process– Requires that the NTA provide the Respondent with

sufficient notice of the government’s theory of the case and the evidence in support of that theory

– Proceedings comply with due process when the NTA is correctly prepared, accurately alleged and charged, and properly served INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); see

also Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994); Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979).

Charging Document: Challenging Deficiencies

Why Challenge the Notice to Appear?– Shift the burden of proof– Preserve rights on appeal

If you fail to review the NTA and make objections, you will likely be waiving any future challenges (Chambers v. Mukasey, 520 F.3d 445 (5th Cir. 2008); Matter of Velasquez, 19 I&N Dec. 377, 380 (BIA 1986))

– Termination of proceedings (claim to U.S. citizenship, regulatory violation, etc.)

– Eligibility for relief – Contest mandatory detention

Charging Document: Challenging Deficiencies

Review Allegations and Charges Carefully– Correct date/manner of entry?– Claim to U.S. Citizenship?– Corrected categorization of criminal history?– Asylee/refugee in proceedings without DHS having

terminated protected status? 8 CFR § 1208.24– Possible diplomatic immunity – Respondent in A or G

status?– Information contained in the allegations obtained in violation

of due process?

Pleadings in Immigration Court

Address whether service of the NTA was proper Representation by counsel that he/she has discussed the nature and purpose

of proceedings, as well as contents of the NTA, with Respondent Representation by counsel that he/she has explained the consequences of

failing to appear or filing frivolous applications Admit or deny factual allegations and concede or deny charge(s) of

removability – Be prepared to explain why the Respondent denies any of these

If relevant, notify the Court what application(s) for relief from removal the Respondent will be seeking

– Acknowledge that they must be timely filed and biometrics must be timely completed – Notify the Court how much time Respondent needs to submit application(s)– Be ready to explain prima facie eligibility for relief sought– Notify the Court how much time Respondent needs to present the case in Court– Notify the Court if any interpreters are needed

Designate or decline to designate a country of removal

Master Calendar and Individual Hearings in Immigration Court

Authority of the Immigration Judge Appearing before the Immigration Judge Form and Record of Proceedings Interpreters Attendance and Timeliness Master Calendar Hearing Individual Hearing

Authority of the Immigration Judge

Set forth at INA § 240(b)(1); 8 CFR §§ 1003.10, 1240.31 “The Immigration Judge shall administer oaths, receive

evidence, and interrogate, examine and cross-examine the alien and any witnesses…issue subpoenas and sanction by civil money penalty any action or inaction in contempt of the judge’s proper exercise of authority under the Act.” INA §240(b)(1).

The Immigration Judge “shall…conduct exclusion, deportation, removal and asylum proceedings and such other proceedings which the Attorney General may assign them to conduct.” 8 CFR §§ 1003.10, 1240.31 (“shall exercise the discretion and Authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such cases”).

Appearing before the Immigration Judge

Practical tips for appearing before the Immigration Judge:

1. Be on time2. Be familiar with and comply with the statute and

regulations, the Immigration Court Practice Manual, and the basic rules of evidence

3. Be prepared 4. Be organized – know your client and the

documentation on record with the Court5. Be civil

Form and Record of Proceedings

Form of Proceedings (INA § 240(b)(2); 8 CFR § 1003.25(c))– In person– By video conference– By telephone conference (evidentiary hearings on the merits may

only be by telephone with consent) Record of Proceedings

– NTA, forms, applications for relief, exhibits submitted by the parties, motions, briefs, written orders and decisions of the Immigration Judge

– Recordings of Hearings Recorded electronically by the Immigration Judge May be off-the-record discussions, which are summarized on the

record by the IJ Other types of Proceedings

– Deportation, exclusion – Detention and Bond – Discipline of Practitioners

Interpreters

8 CFR § 1003.22 Interpreters are provided at government

expense for Individual Hearings and, if necessary, Master Calendar Hearings

Staff interpreters, contract interpreters, and telephonic interpretation services– Oath to interpret and translate accurately in court

Attendance and Timeliness

Attendance and Timeliness is Essential – Delay in appearance or failure to appear may

result in the Respondent’s removal in absentia (8 CFR § 1003.26(c))

– No appeal, but parties may file a motion to reopen an in absentia removal order

Master Calendar Hearing

The Respondent’s first appearance before an Immigration Judge in removal proceedings

Notification of Master Calendar Hearing– NTA or Hearing Notice with date, time, and location

Purpose of Master Calendar Hearing:– Entry of Appearance – Advising the Respondent of rights – NTA: explain the charges and factual allegations – Pleadings– Identify and narrow the factual and legal issues – Set filing deadlines – Status Updates– Scheduling of the Individual Hearing for adjudication of contested

matters and applications for relief – Provide certain warnings to the Respondent

Individual Hearing

Evidentiary hearings on contested matters, or merits hearings – Challenges to removability – Application(s) for relief

Filings of applications, exhibits, motions, witness list, pre-hearing briefs prior to hearing

– Immigration Court Practice Manual for filing rules and deadlines Pre-Hearing Conferences and Communications Between the

Parties – Narrow issues, obtain stipulations, and simplify proceedings

Content of Hearings– Opening statements– Objections to evidence– Presentation of witnesses and evidence, as well as cross-

examination of witnesses– Closing statements– Decision of the Immigration Judge (oral or written)

Most Common Forms of Relief Available in Removal Proceedings

Termination and Administrative Closure Voluntary Departure – INA § 240B Asylum, Withholding of Removal, and Protection Under the Convention Against

Torture – INA §§ 208(a), 241(b)(3) Cancellation of Removal

– LPRs– Non-LPRs– NACARA “Special Rule” Cancellation– VAWA Cancellation

Adjustment of Status – INA § 245(a) Special Cases

– INA § 245(i)– Waivers – INA §§ 212(c), 212(h), 212(i)– VAWA and U visas

Deferred Action

The Immigration Court Practice Manual

Arose from desire for greater uniformity in Immigration Court procedures and need for Courts to implement “best practices” nationwide

Table of Contents in your materials, full manual available online at: http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm

The Immigration Court Practice Manual

Filing rules and deadlines– Must be timely – know the 15 day rule!– Must include EOIR-28, cover page, fee receipt if applicable,

application, exhibits with table of contents, proposed order in triplicate (for motions), proof of service

– Must serve opposing party – Format must be proper

Rules for conduct and procedures of hearings Motions before the Immigration Court Appeals of Immigration Judge decisions Rules for Detention and Bond proceedings Discipline of practitioners Appendices with samples

Working with Opposing Counsel

Why work with opposing counsel?– DHS and IJ also want a just result; minimizes the adversarial

nature of proceedings– Efficiency of case before the IJ– Best possible outcome

Take the long view – Guard your reputation– Don’t sell out for a single client – Know your case– Make sure DHS knows you mean business if necessary

Prosecutorial discretion – new policy memos – Stipulations – Withholding prosecution– Repapering– Deferred Action

1. The Shifting Burdens of Proof 2. The Abridged Rules of Evidence3. Submission of Evidence, Authentication, Meeting your Burden4. Preparation and Examination of Witnesses5. Opening and Closing Statements 6. Common Motions Used

Burden of Proof, Evidence, Witness Examination, and Motions

The Shifting Burdens of Proof

Burden on DHS to prove:– Alienage – 8 CFR § 1240.8

If the Respondent is present without being admitted or paroled, the burden is on DHS initially to establish alienage.

– Removability as charged – INA § 240(c)(3)(A); 8 CFR §1240.8(a) If the Respondent was lawfully admitted but is now deportable,

the burden is on DHS to prove that the Respondent is removable as charged by “clear and convincing evidence.”

– If there is any possible way to challenge alienage or removability, force DHS to meet their burden!

The Shifting Burdens of Proof

Burden on Respondent to prove:– Lawfully present or not inadmissible as charged – 8 CFR §

1240.8(c) If the Respondent is present without being admitted or paroled

and DHS established alienage, the burden shifts to the Respondent to prove that he/she is lawfully present (“clear and convincing”) or not inadmissible as charged (“clearly and beyond doubt”).

– Eligibility for relief from removal If DHS has established alienage and removability, the burden

shifts to the Respondent to prove that he/she is eligible for relief from removal

– Meets all applicable eligibility requirements– Merits a favorable exercise of discretion (for discretionary relief)

The Abridged Rules of Evidence in Immigration Court

Rules of Evidence come from the Regulations and the Practice Manual

– Use your instincts– Make objections to maintain the issues for appeal

Rules that apply – aimed at reliability and trustworthiness– Authentication – Best Evidence– Administrative Notice– Stipulations

Rules that do not apply – Hearsay – Privileges

When in doubt, it’s about Fundamental Fairness!

Submission of Evidence, Authentication, and Meeting Your Burden

Applications for Relief – May be submitted any time before final order or

on Motion to Reopen– See Practice Manual for format

Tab your exhibits!

– Know your record Do not submit duplicate evidence unless necessary Address issues you find in the record

Submission of Evidence, Authentication, and Meeting Your Burden

Burden – INA § 240(c)(4)(A)– Must satisfy basic statutory/regulatory eligibility

requirements Meet each element Address any bars to relief / inadmissibility issues

– Criminal, misrepresentation/fraud, statutory bars – Must show that a favorable exercise of discretion is

warranted Address any adverse criminal factors, fraud, etc.

– Submit waivers – Show rehabilitation and remorse – Highlight positive factors: U.S. citizen family members, hardship

to U.S. citizens, contributions to community, long period of time in the U.S., lack of criminal record, immigration history, paying taxes and other civic duties, etc.

Preparation of Witnesses, Witness Examination, Opening/Closing Statements

Preparation of Witnesses – Make sure the witness knows the purpose of the

proceedings and the purpose of his/her testimony – Familiarize the witness with the procedures and

what to expect – Prepare witnesses for questions that are likely to

come up on cross-examination and explain the purpose of those questions

– Sworn affidavits are your friend! Use them!


Tips for Immigration Court Representation – Know and follow the rules!– Be prepared– Contact the ICE Trial Attorney prior to the hearing – Always keep “the record” in the back of your mind

Protect your client and preserve issues for appeal Raise all non-frivolous arguments and challenge DHS Note anything improper or unfair to your client on the record by

objecting to it (i.e. improper evidence or improper questioning)– Be zealous, but not over-zealous – remember your

manners!– Always listen carefully and be alert!


Direct Examination– Have a plan, but be flexible

Listen to your client’s answers Pay attention to the Immigration Judge

– Ask direct, simple questions focused on the personal knowledge of the witness

– Watch out for leading questions – Qualify your expert and/or witnesses to give opinions – Defer to the Immigration Judge as the fact-finder

Cross Examination – Listen!– Be prepared to object and make your objections for the record

Re-direct Examination – Don’t repeat what has already been covered– Purpose of re-direct is to respond to issues brought up on cross or

to help clarify the Respondent’s answers given on cross


Opening Statements– Some IJs allow, some do not– Most IJs start with preliminary matters, such as identifying the

exhibits, asking if there are any objections to evidence, admitting the evidence into the record, etc.

– After preliminary matters, some IJs will ask you for your theory of the case This is your opportunity to tell the Judge what the case is all about! First impressions are lasting impressions!

Purpose of an Opening Statement– Establish the theory of your case (legal requirements with facts

woven in)– Establish your theme – reduce a large amount of information to

easily-remembered words and phrases – Anticipate weaknesses and refute the other side– Request an outcome – tell the IJ what you want!


Closing Statements– Most IJs allow closing statements – Keep it short and sweet!– This is your opportunity to tie it all together for the

Immigration Judge…not simply a summation! Remind the IJ of your theme and why he/she should find in

your client’s favor – logic and emotion! Take the law, theory of your case, supporting evidence, and

testimony presented, and mold them into a persuasive whole Deal candidly with weaknesses and dismiss them, point out

weaknesses in the other side’s case

Common Motions Used in Immigration Court

Bond Motions Motions to Change Venue Motions for Telephonic Testimony Motions for Termination or Administrative

Closure Motions for Continuances Motions to Reopen/Reconsider Motions to Suppress Evidence

Common Motions: Bond Motions

Custody/Bond Redetermination– DHS custody and bond determinations may be

reviewed by an Immigration Judge – 8 CFR §1236

Application for bond redetermination may be made orally, in writing, or, at the discretion of the IJ, by telephone

Separate and apart from any deportation or removal hearing or proceeding – 8 CFR §1003.19(d)


Discretionary Determination by the IJ– May consider any information available or presented

Matter of Adeniji, 22 I&N Dec. 1102 (BIA 1999)– Establish not a danger to property or persons– Establish not a flight risk

Matter of Patel, 15 I&N Dec. 666 (BIA 1976)– Local family ties– Prior arrests, convictions, appearances at hearings – Employment– Membership in community organizations– Manner of entry and length of time in the U.S.– Immoral acts or participation in subversive activities – Financial ability to post bond– Chances of success on the merits


Mandatory Detention – INA §236(c)– For certain criminal aliens – Joseph Hearing when DHS inaccurately charges your client

as mandatory – Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) Properly included? DHS substantially unlikely to prevail on charge of removability

specified in INA § 236(c)

Alternatives to Detention– Matter of Garcia-Garcia, 24 I&N Dec. 93 (BIA 2009)– Matter of Aguilar-Aquino, 25 I&N Dec. 93 (BIA 2010)

Common Motions: Motions to Change Venue

Venue lies where the charging document is filed by the Service – 8 CFR §§ 1003.14(a), 1003.20(a)

– Usually, where the Respondent resides or is detained Standard is good cause Matter of Rahman, 20 I&N Dec. 480 (BIA 1992)

– Balance administrative convenience, location of Respondent and witnesses, efficiency, cost of transporting witness or evidence, etc.

Know your Courts– Seek advice of local counsel– TRAC Study– Advise client of possibility of “conservative” Court

Common Motions: Motions for Telephonic Testimony

Motion for Telephonic Testimony– Specify the witness’s name and A number – Detail and document the reasons why the witness

cannot appear in person and why their testimony is important to the case

– Provide a written summary and estimated length of testimony

– Specify the language used by the witness – Present a resume if the witness is an expert

Common Motions: Motions for Termination or Administrative Closure

Motions to Terminate– “The order of the Immigration Judge shall direct the respondent’s removal

from the United States, or the termination of proceedings.” 8 CFR §1240.12(c)

– Reasons: Respondent not removable/inadmissible Lack of prosecution Challenges to the NTA Prosecutorial discretion Regulatory violations

Motions for Administrative Closure– Alternative to termination– Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996) (“A case may

not be administratively closed if opposed by either of the parties.”)– Case still in EOIR system and pending, but temporarily off the docket –

may be recalendared – Purpose is to allow time for USCIS to adjudicate petitions/applications,

clarification of the law, etc.– Recalendaring

Common Motions: Motions to Continue

First continuance granted to pro se Respondents to seek counsel; then burden for continuance becomes good cause.

– Pending petitions before USCIS– Pursuit of post-conviction relief under Padilla v. Kentucky

Practice Manual– File in writing no less than 15 days prior to the hearing (the

sooner the better)– Detail the reasons for the request and support with

evidence – Include preferred dates that party is available to re-schedule

the hearing

Common Motions: Motions to Reopen

New Evidence – INA § 240(c)(7)– Deadline is 90 days– One motion only– Standards – prima facie case for underlying relief,

evidence previously unavailable and material, evidence could not have been discovered at previous hearing, must be supported with evidence and application for relief (if not already filed)


In Absentia – INA § 240(b)(5)(C)– Must be filed with Court having administrative control over the case – No Notice – INA § 239

May be filed “at any time” Automatic stay of removal Proper notice defined in INA § 239(a) and Matter of G-Y-R-, 23 I&N Dec. 181

(BIA 2001) Presumption of effective delivery (Matter of Grijalva, 21 I&N Dec. 27 (BIA 1996)

– Exceptional Circumstances Attempt to contact Immigration Court or explanation for failure to do so Evidence should include affidavits (Matter of J-P-, 22 I&N Dec. 33, 34-35 (BIA

1998) Must be filed within 180 days – INA § 240(b)(5)(C)(i) Automatic stay of removal What are exceptional circumstances?

– Circumstances beyond the Respondent’s control – Totality of the Circumstances Test (Matter of W-F-, 21 I&N Dec. 503, 509 (BIA 1996))– Ineffective assistance of counsel (Matter of Grijalva, supra; Matter of Lozada, 19 I&N

Dec. 637 (BIA 1988))


Beware– Must file motion with Immigration Court with administrative

control of the case – 8 CFR § 1003.23(b)(1)(ii)– BIA appeal vs. Motion to Reopen– Was Respondent granted Voluntary Departure?

Exceptions to Timeliness Requirement– Sua sponte authority – 8 CFR §§ 1003.2(a), 1003.23(b)(1)– Changed circumstances in asylum context – INA § 240(c)(7)– Battered spouse provisions – INA § 240(c)(7)(C)(iv)– Joint Motions – 8 CFR § 1003.23(b)(4)(iv)

Stay of Removal– Add to motion– Call the Board! – Practice Manual Chapter 6

Common Motions: Motions to Reconsider

Separate and distinct from Motions to Reopen Request that the original decision be reexamined in light of

additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked

– INA § 240(c)(6)(C); 8 CFR § 1003.23(b)(2); Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006); Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002); Matter of Cerna, 20 I&N Dec. 399 (BIA 1991).

Must be filed within 30 days of the entry of the final administrative order

– INA § 240(c)(6)(B); 8 CFR § 1003.23(b)(1); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

May file one Motion to Reconsider a decision on removability– INA § 240(c)(6)(A); 8 CFR § 1003.23(b); Matter of J-J-, 21 I&N

Dec. 976 (BIA 1997). May not seek reconsideration of a decision denying a previous

Motion to Reconsider – 8 CFR § 1003.23(b)(2)

Common Motions: Motions to Suppress Evidence

Evidence is only admissible if it is probative and its use is fundamentally fair

– Matter of Ramirez Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter of Toro, 17 I&N Dec. 340 (BIA 1980)

The exclusionary rule generally does not apply in civil immigration proceedings, but possible to suppress evidence obtained through egregious violations of due process

– INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) Regulatory violations that prejudice the Respondent

can also result in termination of proceedings – Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980)

Common Motions Used in Immigration Court

Immigration Court Practice Manual, INA, Regulations, Due Process

General Tips on Motions– Determine DHS’s position on the motion prior to filing – Be clear about what you want the IJ to do– Include the who, what, when, where, why– Be clear and concise – Support your reasoning with evidence

Declarations, documentation, applications, etc.– Don’t forget your proposed order in triplicate!

Introduction to Immigration Court Proceedings

GOOD LUCK!!!

Questions? Contact us:Dree Collopy – [email protected]

Christina Fiflis – [email protected]

Documents

ABA Pro Bono Training: The Essentials of Immigration Court Representation · · 2017-12-22– Brief Overview of Relief Available in Removal Proceedings ... removal and asylum proceedings