March 30, 2000
(EOIR Response in italics)
(1) Regarding In re: Soriano and In re: Truong. The 9th Circuit has now joined the 1st, 2nd, 3rd, 6th, 8th and 11th Circuits in rejecting Soriano. Rumors -- or perhaps "wishful thinking" --persist that the Department of Justice may rethink its position on whether AEDPA §440(d) requires a retroactive bar to §212(c) relief. Are there any further developments in this regard?
The Department is considering whether to acquiesce on a nationwide basis to those circuits that have rejected Soriano. No final determination has been made.
(2) A picky point of procedure: Since the Board changed its nomenclature for designated precedents from "Matter of ---" to "In re:----," a lack of consistency has been noted. In court decisions and even in the text of Board decisions, some recent cases are still referred to as "Matter of ---; " e.g., "Matter of Soriano." We would like to be correct in our citation format, so which is correct? Is there a "bright line" test for when to use "In re:" and when to use "Matter of?"
Although designated precedents are titled "In re," it is Board policy that when citing to any Board precedent the case should be referred to as "Matter of."
(3) What is the status of the "repapering" initiatives? We have now seen two INS General Counsel memos that say what the Service will do and what the Immigration Courts and BIA will do, but we have not seen anything form EOIR confirming this.
(a) Has EOIR issued instructions to its Judges and the BIA confirming the repapering procedures, or are we still awaiting regulations?
The Chief Immigration Judge has issued two memorandums on repapering, dated December 9, 1998 (PDF) and December 7, 1999 (PDF), as attached (together with related December 1998 and December 1999 INS memoranda). A Vice Chairman of the Board and the former Chief Attorney Examiner issued guidance to the Board staff by memoranda dated November 10, 1998 (PDF) and March 14, 2000 (PDF), as attached. An alien will not be able to request repapering until regulations setting forth the criteria and procedures to be followed are published.
(b) Are cases that meet the previously announced criteria still being closed? If the Board dismisses an appeal on a suspension or 212(c) case that would qualify for repapering, would the Board reconsider the December 1998 and December 1999 INS memos as persuasive authority for reopening?
The Board will administratively close the proceedings of any alien who appears eligible for repapering in accordance with the criteria agreed to between INS and EOIR. The Board began closing the cases of non-LPRs who appear eligible for repapering on March 16, 2000. With respect to LPRs who appeared eligible for repapering, the Board has been administratively closing such cases since November 1998.
Under § 309(c)(3) of IIRIRA, only aliens for whom there has not been a final administrative order of deportation may be eligible for repapering. The Board has made no determination that the INS' December 1998 and December 1999 memoranda should be taken as authority to reopen for LPRs or non-LPRs to have their cases administratively closed and eventually be placed in removal proceedings. In general, it has not been the policy of the Board to grant reopening for the sole purpose of then administratively closing a case. Counsel in an individual case is of course free to make such a request. Please note that INS specifically states in its memoranda that it will not agree to join in a motion to reopen for the sole purpose of administrative closure on the basis of repapering.
(C) When can we expect final guidance on these issues?
The INS is drafting a regulation on repapering
(4) Some unfamiliar names have appeared as panel members on recent Board decisions, including former Board Member Morris whose retirement was announced several years ago.
Under 8 C.F.R. § 3.1(a)(1), the Director is authorized in his discretion to designate Immigration Judges, retired Board Members, retired Immigration Judges, and Administrative Law Judges employed by EOIR, to act as temporary Board Members for terms not to exceed 6 months. Temporary Board Members do not participate in precedent or other en banc cases.
(a) Are Immigration Judges still sitting on BIA panels despite the recent expansion of the Board?
There are no Immigration Judges currently designated to serve as Temporary Board Members.
(b) Has Mr. Morris returned from retirement?
Mr Morris was designated by the Director, as a retired Board Member, to serve as a temporary Board Member through the end of 1999.
(C) Who else besides permanent Board Members are authorized to sit on panels deciding cases?
Three Administrative Law Judges from OCAHO, including Judge Marvin Morse, Judge Ellen Thomas, and Judge Robert Barton are currently serving as Temporary Board Members.
(d) In decisions from the Courts of Appeals, district judges, senior judges or judges visiting from other Circuits sitting on a panel are always identified as such. Could the Board do likewise, and specify the title of any member of a panel other than permanent Board members?
We are asking the Clerk's Office to note the Temporary Board Member designation in listing the panel members on our transmittal letters.
(5) What is the status of the new appeal streamlining regulations, whereby a single Board Member may affirm without opinion? Is this being implemented at this time?
(a) If so, could you tell us exactly how the process works? Who screens cases to determine whether single member review is appropriate?
The streamlining regulations are being implemented in four phases. The first three are interim, while the fourth and final phase will be developed based on the Board's experience with the interim steps. Phases I and II have been implemented.
Phase I began on November 22, 1999, and involves cases with procedural or ministerial issues that have either been designated by 8 C.F.R. § 3.1 or by the Chairman, as appropriate for single Member review. This category includes: defective transcript cases, cases where the Board lacks jurisdiction, untimely appeals, untimely motions, barred motions, interim orders, and lost alien cases. The Chairman designated these cases to be reviewed by members of Panel 5.
Phase I cases are initially screened by the Clerk's Office, whose personnel are trained to recognize the cases in accordance with the designated issues. These cases are then reviewed by staff attorneys or paralegals, who may reject any case as inappropriate for single Board Member review. Of course, the individual Board Member ultimately reviewing the matter may also reject the case.
Phase II began on January 24, 2000, and again involves cases either enumerated by regulation or designated by the Chairman as involving procedural or ministerial issues. This category includes motions to withdraw an appeal, unopposed motions, abandoned appeals, certain visa cases, certain routine fine cases controlled by recent Board precedent, mandatory remands under the Convention Against Torture, case appeals or motions in which the fee requirement has not been satisfied because the remittance is found to be uncollectible, certain moot bond cases, certain circuit and district court remands, certain recognition and accreditation cases, and cases to be administratively closed for non-LPR repapering.
The Clerk's Office screens for motions to withdraw an appeal. This category and all remaining cases involving the designated issues are screened by staff attorneys or paralegals, who again may reject the cases as inappropriate for single Board Member review, as may the Board Members themselves.
Phase III is a planned pilot program to test procedures for summary affirmance without opinion by a single Board Member. This program is still being developed. Phase IV, as noted earlier, will be the permanent program for implementing streamlining.
(b) Who will be the single Board Members reviewing these cases and how will they be picked for this function? Will all Board Members participate in the process all of the time? On rotation?
Two Board Members have been designated to review motions to withdraw an appeal, unopposed motions, cases to be administratively closed for non-LPR repapering, and abandoned appeals. Three Board Members have been designated to review circuit and district court remands. Panel 1 members are designated to review routine recognition and accreditation cases, certain fine cases, and certain visa cases. Panel 5 members review mandatory remands under the Convention Against Torture, moot bond cases, and cases where the fee remittance has been found to be uncollectible. As for the pilot program, we anticipate that over time all Board members will participate.
(6) We understand that EOIR has recently filled the previously announced position of Pro Bono Coordinator. Could you tell us about the duties of the new Coordinator, the candidate selected, and how AILA can assist in these pro bono efforts?
The new Pro Bono Coordinator is expected to begin work in the near future. At that time, EOIR will release a formal announcement regarding the Pro Bono Coordinator's duties and the candidate selected. This individual's first priority will be to meet with national, regional, and local NGOs throughout the country.
(7) Some of our members are having real problems when cases that have been pending for years are decided and the decisions are mailed to the attorney's old address. The decision is not received by the attorney, and the respondent has usually also moved in the meantime. Appeal rights are lost, leaving motions to reopen as the only option to pursue.
In the past, the policy of the Board has been that decisions are mailed to the address shown on the EOIR-27, no matter how old it might be, and that the only way to effectively notify the Board of an attorney's change of address is to submit a new EOIR-27 with the new address for each case the attorney has pending before the Board. However, since cases unfortunately have remained pending before the Board for five years and longer and there is no way to know how long a case may take, identifying all of those cases when the attorney moves can be an extremely laborious undertaking.
Does the attorney go back through files five years old or less? Seven years? Ten?
(a) Most courts have a centralized attorney address file whereby a single change of address notice from the attorney will insure correct routing of correspondence on all pending cases. Could the BIA adopt such a system and policy?
(b) In connection with the foregoing, it should be noted that EOIR's various Immigration Courts obviously have computerized attorney address files.
Indeed, some of our members have experienced the exact opposite of the problem noted above with the BIA. Important correspondence from the Immigration Court has been sent to a very old address when the computerized address files were not updated by court personnel and every document in the file -- including the Entry of Appearance form -- contains correct and current address information. If the Immigration Courts have such a system and capability, could not the Board use the same system?
(c) In the alternative, on cases where the address information in the file is more than three years old, is there any way BIA personnel could at least check before a decision is mailed out to see if a more recent address has been submitted for the attorney?
If an attorney changes his or her address, a new EOIR-27 must be filed, and a separate notice must be submitted for each alien represented. This is described in the BIA Practice Manual, under 2.3(g) - pg. 19. We have no plans to change this requirement. We do have a centralized attorney address file in our data system, where we enter every address submitted by an attorney pursuant to an EOIR-27. However, this list should not be relied on as only containing the appropriate address for the particular case at hand. Attorneys have often submitted multiple addresses due to temporary moves or as a result of opening a second office. To be clear exactly where correspondence should be sent, it is imperative that we rely on the EOIR-27 presently in the file. Furthermore, as it must be served on the INS, the EOIR-27 ensures that the INS will be apprised of precisely where to serve opposing counsel with any further submissions for the record.
(8) We notice that a new version of the Form EOIR-27 Entry of Appearance was recently adopted. Perhaps this is a good time to clarify some of the rules concerning entries of appearance before the BIA.
(a) The new form has privacy act advisories. Does the EOIR-27 have to be signed by the Respondent in every case? Or only when the Respondent is an LPR and documents are requested from EOIR's files?
The appearance form does not have to be signed in every case, only where the alien represented is a United States citizen or a lawful permanent resident. This is set forth in the BIA Practice Manual, under section 2.3(c) - pg. 17.
(b) We know that an EOIR-27 is required for entry of appearance before the Board even where counsel represented the respondent and filed an EOIR-28 before the Immigration Court. However, when an EOIR-27 is already on file (submitted with the notice of appeal, for example), must a new form be submitted when the same attorney files a Motion to Reopen or Reconsider after the Board rules, or a Motion to Remand while the case is pending?
(The BIA Clerk's office has been requesting new EOIR-27's in such cases, and corresponding directly with the respondent until it is received).
As set forth in section 2.1(b) of the Practice Manual (pg.15), an original Notice of Appearance should always be filed with the filing of a motion to reopen. This should be done notwithstanding the filing of a prior notice in the underlying case appeal. This keeps us apprised of current information about counsel and his or her address. The submission of the appearance form with all motions to reopen is specifically required by regulation under 8 C.F.R. § 3.2(g)(1). The submission of an appearance form is not required with a motion to remand a pending case.
(9) Disparate procedural practices in IJ proceedings.
It has been reported to the committee that some IJs are applying different standards for respondents' counsel and INS counsel, for example, requiring that respondents' counsel file exhibits 60 days before the hearing but only requiring INS counsel to file exhibits 10 days before the hearing. We know you share our belief that proceedings should be fair and even-handed. No one wants rules that are inflexible or impossible to administer. Nevertheless, we wonder whether there is some mechanism for assuring that differential treatment does not exist in immigration courts.
Generally, an Immigration Court's Local Rules govern the submission of documents. It is difficult to say whether these alleged practices are in fact disparate. The nature of exhibits provided by the INS and exhibits provided by respondent's counsel may be very different and necessitate a different filing deadline. In an individual case, you may bring such a matter to the attention of the Immigration Judge on the record. If you are not satisfied by the Immigration Judge's response, you may bring the matter to the attention of the Assistant Chief Immigration Judge.
(10) Redesignation of unpublished decisions.
We have reviewed the Board's Practice Manual section 1.4(c), on published and unpublished decisions and the Board's statement in the Practice Manual section 1.4(c)(ii), that the Board will entertain requests to publish an unpublished decision. We appreciate having this information and also knowing that the Board will entertain such requests. What procedure does the Board follow when determining whether to publish a decision? What procedure should attorneys follow to request that an unpublished decision be published? Is a simple letter to the Board, with copy to opposing counsel, sufficient? To whom should the letter or other request be addressed? Further, if AILA's EOIR committee or amicus curiae committee wishes to support a request that a decision be published, in what form should we file such support and to whom should it be directed?
Anyone may submit a written request that a particular unpublished Board decision should be published. As noted in the Practice Manual, these requests are granted sparingly. Any request should be submitted in letter form, addressed to the Chairman. Service on the parties to the decision is encouraged, but is not required. All decisions to publish are made by a majority vote of the en banc Board.
(11) As you know, when an asylum case is proceeding before an immigration judge, the IJ stops the clock for purposes of employment authorization if the alien requests a continuance. Could EOIR issue instructions to IJs regarding the interpretation of this requirement? At present, some IJs stop the clock whenever alien's counsel is "unavailable" for the next "open date" on the court's calendar. Often the next "open date" is so soon that it is not realistic or just to expect that the alien or his or her advocate could be prepared to present the hearing on merits. We suggest the IJ offer a date that is no sooner than 30 days after the Master Calendar hearing.
Also, if the attorney is "unavailable" because of a conflict with another EOIR hearing or interviews with the INS, this should not be considered an as alien-requested continuance.
Some IJs say that they are required to offer the soonest available date. Is there an instruction from EOIR to this effect? If so, could we obtain a copy of it?
OPPM 97-6 (PDF): Definitions and Use of Adjournment and Call-up Codes covers the use of adjournment codes in Immigration Court, as attached (for a list of OPPM's available on the agency's website, click here). There are no instructions which require an Immigration Judge to offer the earliest available date. One adjournment code which is considered an "alien-caused delay" is a rejection of the original hearing date. Immigration Judges must be given the flexibility to schedule asylum cases. Under section 208(d)(5)(A)(iii) of the Immigration and Nationality Act, in the absence of exceptional circumstances, final administrative adjudication of an asylum application shall be completed within 180 days after the application is filed. This statutory requirement may be an important consideration in scheduling asylum cases. Any policies cannot detract from the ability to meet this important statutory goal. A requirement to offer a hearing date no sooner than 30 days after the master calendar hearing is unrealistic for an expedited system.
We do not agree with your contention that attorney conflicts should not constitute "alien caused delays." An attorney acts on behalf of the alien. Any delays caused by an attorney conflict should be considered "alien caused delays."
(12) Withdrawal of Representation
We would be grateful if EOIR would issue some standards regarding this topic. Some immigration judges are very reluctant to allow counsel to withdraw even in cases where there is a documented breakdown of the attorney/client relationship. It appears that this reluctance is on the part of the court, has more to do with administrative convenience or smoother processing of the case than anything else. This behavior is a serious deterrent to counsel who wishes to provide sincere and zealous representation of a client. Once a client's actions are making that impossible it is inappropriate to force an attorney to continue representing an applicant. Some judges also insist on the presence of withdrawing counsel even after the individual client has fired the attorney and requested that he or she not continue in representation. However, the court will not agree to the withdrawal until a new EOIR 28 is submitted by new counsel. Is this the policy of the EOIR to force counsel to remain in a case?
The decision whether to allow a withdrawal rests solely with the Immigration Judge. Neither EOIR nor the Office of the Chief Immigration Judge has instituted any policy concerning withdrawal of counsel. We have never taken a position on whether it is more beneficial to "force" an attorney to remain counsel of record since the Immigration Judge is in the best position to make this determination. Under 8 C.F.R. 3.17(b), withdrawal or substitution of an attorney may be permitted by an Immigration Judge during proceedings only upon oral or written notice.
(13) What are the procedures before the BIA when an attorney Submits a Motion to Reopen or Remand and the Government has not submitted any opposition within the requisite time afforded to them to respond? How would this Motion be handled? If no objection, will the case move in a favorable expeditious manner?
Under the regulations, a motion to reopen or remand is deemed to be unopposed if the Service has not submitted a response to a motion within the requisite time. The nonopposition is a factor in favor of granting the motion, but does not require the Board to grant the motion. The regulatory requirements for a motion to reopen must still be met. See 8 C.F.R. § 3.2. Counsel is free to submit a motion to expedite the matter, which the Board will consider on a case-by-case basis.
(14) Jurisdiction of Cases: Detained Cases
If a Notice to Appear is issued for the Respondent to appear in the jurisdiction of his residence, where does the jurisdiction rest when the Immigration Service transfers the "body" to another location due to limitations of detention space?
For example, a Notice to Appear is issued and the notice states that you are required to appear at the Executive Office of Immigration Review, Office of the Immigration Court, JFK Federal Building, Government Center, Boston, Massachusetts. The Respondent is located in the Boston jurisdiction. The attorney then submits his/her EOIR 28. The Service then relocates the Respondent to another jurisdiction. At the new jurisdiction, the judge requires the attorney to be present if the case goes to trial, instead of a telephonic hearing. This jurisdiction could be as far as seven hours away.
Who has jurisdiction on this case? When does the venue change from one Court to another?
This is happening with frequency due to the INS lack of space for detainees.
An Immigration Court's jurisdiction over a case begins when a charging document is filed with the Immigration Court by the INS. See 8 C.F.R. 3.14(a). There is a critical distinction between the service of a charging document on the alien and the actual filing of the charging document with the Immigration Court. Even if a Notice to Appear served on a respondent states that the hearing will take place in Boston, if the INS files the Notice to Appear at another Immigration Court, original jurisdiction and venue over the case will be in that other Immigration Court. See 8 C.F.R. 3.20(a). Once a charging document has been filed with an Immigration Court, venue cannot be changed unless one of the parties files a motion to change venue and the Immigration Judge grants the motion. See 8 C.F.R. 3.20(b).
(15) We were pleased to hear about the Board's plans to hear oral argument in Chicago this June. Please give us an update on specifics. Are there any plans for oral argument to be heard in other cities over the next year and if so when and where? How often is the Board hearing oral argument now in Falls Church? What criteria are used for selecting cases for oral argument? Has the Board heard oral argument en banc as yet?
The Chicago oral arguments are scheduled for the week of June 12, the same time that the AILA Conference is to be held there. The panel will consist of Board Members Lauren Mathon, Neil Miller, and Anthony Moscato. The specifics on what cases will be heard and the date and time for individual cases have yet to be determined. We plan to hold oral argument at one other site outside of Falls Church this year. The time and place of the second site has not yet been determined. Board panels hold oral arguments at Falls Church, as the need arises. Panel 2 (Board Members Vacca, Villageliu, and Rosenberg) had several days of oral argument earlier this month.
As stated in section 8.2 of the BIA Practice Manual (pg. 83), cases are selected for oral argument because they meet one or more of a number of criteria, including but not limited to: (A) the resolution of an issue of first impression; (B) alteration, modification, or clarification of an existing rule of law; (C) reaffirmation of an existing rule of law; (D) the resolution of a conflict of authority; and (E) discussion of an issue of significant public interest.
We had one oral argument at the en banc level last year, Matter of K-V-D-, Interim Decision 3422 (BIA 1999) (PDF). We are pleased to note that pro bono counsel in that case, Lisa Brodyaga of Harlingen, Texas, was arranged through Nadene Wettstein at the AILA National Office. Given the increased en banc membership and the logistics of oral argument, a representative group of seven Board Members, with Vice Chairman Mary Maguire Dunne presiding, was designated to hear the argument in behalf of the en banc Board. All Board Members had an opportunity to provide input for questioning, and a complete transcript of the argument was furnished to each Member of the en banc Board.
Several other cases where oral argument was heard at the panel level were decided by the en banc Board and designated as precedents last year, including Matter of Adeniji, Interim Decision 3417 (BIA 1999) (PDF); Matter of Truong, Interim Decision 3416 (BIA 1999) (PDF); Matter of Puente-Salazar, Interim Decision 3412 (BIA 1999) (PDF); and Matter of Ruiz-Massieu, Interim Decision 3400 (BIA 1999) (PDF). In addition, one panel decision designated as a precedent, Matter of Kanga, Interim Decision 3424 (BIA 1999) (PDF), was an oral argument case from the Miami Oral Argument Panel.
(16) We understand that there are two vacancies now on the Board. Have these been filled? Are applications still being accepted? When do you anticipate that these new Board members will be hired? How many I.J. positions are now open? Are applications still being accepted for these positions?
The two Board vacancies have not yet been filled. The deadline for accepting applications has expired. Sixty-six applications were received in response to our public announcement for these two positions. Director Kevin Rooney appointed an evaluation panel chaired by Peggy Philbin, Deputy Director, serving with Brad Glassman, Counsel to the Deputy Attorney General; Susan Martin, Georgetown Law School (formerly Executive Director of the U.S. Commission on Immigration Reform); and Paul Schmidt, Chairman. The panel met at the end of February, and narrowed the list to fewer than 10 finalists. That list was submitted to Director Rooney who, along with Associate Deputy Attorney General James Costello, will conduct interviews. They, in turn, will make recommendations to Deputy Attorney General Eric Holder and Attorney General Janet Reno.
There are three IJ positions open in New York, Los Angeles, and Chicago. The application period for these three positions has closed. There is potentially another IJ position which may become available in Hartford.
(17) We note that the AFL/CIO has recently called for a general amnesty and an elimination of employer sanctions. Has this dramatic shift in labor's position on these issues affected how and which cases are being decided by the Board, or impacted in any way on EOIR practices. Has this been discussed with the Attorney General? If so, is it affecting Board practices?
The AFL-CIO's position on amnesty has no effect on our adjudications, nor has it been discussed with the Attorney General.
(18) Now that the Board is expanding to 18 members, are there plans to issue en banc decisions with less than 18 members participating, e.g. two en banc panels of 9 members each?
The Board on occasion issuesen banc decisions with fewer than all membersdue to unavailability or recusal, so long as there are a majority of members necessary to constitute a quorum under 8 C.F.R. § 3.1(a)(4). The Board is authorized under the regulations to establish "limited " en banc panels consisting of nine members, and has done so in the past on a few occasions. The Board Members generally have preferred "full" en bancs to the "limited" en banc procedure. It seems unlikely that this preference will change in the foreseeable future.
(19) Please give us an update on employer sanctions and Unfair Immigration Related Employment practice cases. How many have been decided over the last year. What is the amount of fines that has been collected, and how many employers have been fined? Have criminal charges ever been brought under 274A (f)(1)?
During Fiscal Year 1999, 36 employer sanction cases were closed out, with fines totaling $519,713 assessed against 33 employers. As regards unfair immigration-related employment cases, 18 such cases were closed out with $532,665 worth of fines and back pay awards assessed against 12 employers. The collection of any fines assessed is the responsibility of INS in employer sanctions cases and the Office of Special Counsel of the Civil Rights Division in unfair immigration related employment practices cases. See also, 8 U.S.C. §1324a(e)(9) and §1324b(j).
Concerning the question of whether criminal charges have been brought under section 274A(f)(1), we suggest contacting either the INS or the Executive Office for U.S. Attorneys for that information, as EOIR plays no role in the adjudication of such cases.
(20) Please give us an update on NACARA cases. Members report having filed NACARA motions by the September 11, 1998 filing deadline with the Immigration Court, and still not receiving a decision. Do you know how many are pending? If NACARA suspension has been granted to an individual, and his spouse has never been placed under proceedings, how can she and/or their children apply for NACARA suspension or special rule cancellation? If an otherwise eligible NACARA beneficiary, e.g. Eastern European who came in 1990, and applied for asylum before 12-31-91, was issued an OSC, but that document was either not properly served on him or not filed with the Court, how does that individual get a hearing on NACARA suspension or special rule cancellation?
The Immigration Court's jurisdiction is based on the filing of a charging document by the INS. The issue of how to place into proceedings NACARA beneficiaries who are ineligible to apply with the INS is discussed in the preamble to the interim NACARA regulations. See 64 FR 27856, 27858 (May 21, 1999). Such requests must be made to the INS. EOIR does not keep data on the number of NACARA motions to reopen that are pending.
(21) How many non NACARA suspension cases have been granted?
As of March 13, 2000, there were a total of 1,360 Immigration Judge grants and 71 grants by the Board, for an overall total of 1,431 thus far in fiscal year 2000.
How many more numbers are left for this fiscal year?
(22) What are the latest developments with electronic filing with the Board and the Immigration Courts?
What cities have been designated for pilot projects and when do you expect to begin?
What forms and pleadings will be initially tested for electronic filing?
What can AILA do to lend its support to these efforts?
Would you be prepared to demonstrate electronic filing at AILA's annual conference in June, or is it too early in development?
The program for allowing electronic filing of certain documents is still in the early stages of development. It will not be implemented until at least the beginning of the next fiscal year. Some tentative understandings have been reached. The pilot program would include Seattle and Baltimore. A third city is under consideration. The documents that could be filed electronically include the EOIR-27, EOIR-28, and EOIR-33/BIA. Briefs could also be filed electronically. EOIR is currently coordinating the specifics of the pilot program with AILA representatives Thomas Elliot and Marshall Cohen. EOIR will be submitting a report to Congress regarding the program in April.
(23) Does the EOIR keep statistics regarding the number of cases filed in each Immigration Court, the number and type of individual hearings (in terms of relief requested) and the number of cases approved and denied. Do you have the statistics for cases held by each IJ, and the denial/approval rate of each IJ both overall and per category of relief requested? If so, will EOIR provide these statistics to the liaison committee?
Attached are reports that EOIR keeps regarding asylum. These reports include statistics for the number of asylum cases received, granted, and denied at each hearing location for October 1999 thru December 1999, and for FY 99.
(24) Members practicing before several Immigration Courts have asked that we raise the issue of administrative inefficiency in those courts. For example, in Atlanta, members have complained that Individual calendars are often crammed with an unreasonable number of cases. This results many times in last minute rescheduling on the day of the hearing, needless and multiple appearances, excessive amounts of time waiting in court for previously scheduled cases to be finished, and undue pressure on attorneys and their clients to settle cases rather than bear the expense and burden of returning for rescheduled hearings. These practices especially impact those respondents residing out of state and at great distance from the court. Has EOIR ever instructed the IJs to consider these issues when placing cases on their calendars? If not, can this be done?
The Office of the Chief Immigration Judge has informed Immigration Judges of these considerations. We will reiterate your concerns to the Immigration Judges. If there are specific concerns with the calendaring of cases in an Immigration Court, the local AILA chair should contact the Liaison Judge, with a copy of any correspondence to the Assistant Chief Immigration Judge to discuss these scheduling concerns.
(25) Both a court clerk and the court administrator in Atlanta told one of our members that a bond redetermination hearing could not be scheduled prior to filing of the NTA. The reason given was that the software used in the clerk's office would not allow scheduling of a hearing under these circumstances. In this instance, the court would not schedule the bond redetermination hearing until the District Counsel intervened and hand delivered the NTA for filing. Is EOIR aware of this problem? If so, what measures are being taken to correct it? Other offices do not require the filing of the NTA before scheduling a bond redetermination hearing.
Although the filing of an NTA is not required, service of the NTA on the alien is required to vest jurisdiction with the Immigration Court to conduct a bond redetermination proceeding. The Office of the Chief Immigration Judge was not aware of the problem in Atlanta. We are looking into this situation. If such issues arise in the future, and the Court Administrator does not correct the problem, please contact the Assistant Chief Immigration Judge.
(26) As a follow up to an issue raised at our last meeting, would EOIR consider amending its regulations to permit at least a lawful permanent resident in proceedings to depart the United States (voluntarily or otherwise) without withdrawing an appeal or a Motion to Reopen/Reconsider pending at the BIA? In this connection, the following considerations are submitted:
(a) LPR's with criminal convictions are forced to choose between continued mandatory detention for months or years while an appeal is taken, or abandoning a meritorious appeal to avoid further incarceration. Allowing these individuals the option of departing while prosecuting their appeals or motions would benefit not only the LPR but the Department of Justice as well by saving detention costs. Further, as LPR's, an alien whose appeal results in a reversal or remand would always be eligible for readmission as an LPR.
(b) In non-detained cases, the problem has been that appeals generally take several years. For various compelling personal and business reasons, an LPR may need to travel abroad while an appeal or motion is pending before the Board and should not be forced to forego such travel.
(c) Under the existing regulations, the Board is without jurisdiction to consider a Motion to Reopen or an appeal after departure, even where it is apparent that the alien has been removed in violation of his or her rights to procedural due process. Such cases are forced into the federal courts on undeveloped records simply because the EOIR regulations prevent the Board from correcting such legal errors after the irregular removal.
We would be happy to discuss these issues and work with EOIR on precise regulatory language if desired.
This question is more appropriate for a working group, as we have done with the electronic filing issue.
(27) Please outline the procedure for counsel to file complaints or concerns about immigration judges or immigration judge court proceedings. Specifically, members are asking:
(a) Should all complaints be sent to OPR?
No. Complaints about an Immigration Judge's conduct should be made to the Assistant Chief Immigration Judge or the Chief Immigration Judge. Any member of the public can, however, file a complaint about a Department of Justice attorney, including an Immigration Judge, with OPR. We prefer that complaints be filed first with the Assistant Chief Immigration Judge or the Chief Immigration Judge.
(b) If EOIR is involved, is there a specific form to be used or procedure to be followed?
No. A letter will suffice. Please do not submit anonymous complaints.
(c) Is EOIR involved in investigating these complaints?
The Office of the Chief Immigration Judge may decide to investigate the complaint on its own or may refer the matter to OPR for investigation.
(d) How is the judge involved notified? How is the attorney protected from potential retaliation?
As would be the case in almost any investigation, the Immigration Judge who is the subject of the complaint would likely be notified of the charges and be given an opportunity to respond. Also, OPR's authority extends to the issue of retaliation in that OPR investigates allegations of abuse of authority, which would encompass allegations of retaliation.
(e) Is the attorney notified of the outcome of EOIR's investigation?
In appropriate circumstances.
(f) How does EOIR handle a situation where a complaint is found to be justified?
Appropriate disciplinary action may be taken.