- Improper dismissals. Recently we have experienced the BIA issuing
dismissals of appeals for failure to file a brief when, in fact, briefs have
been filed. We have been instructed to file a motion to reconsider along with
proof of the original filing (i.e., Federal Express receipt) and a filing
fee of $110. Two questions emerge--
- What is the EOIR doing to ensure that material sent to the BIA actually
makes it to the file 100% of the time?
It is the Board of Immigration Appeal's (Board) practice to forward any
correspondence, including a brief, to the case file as soon as it is received.
The case files are tracked through bar coding and scanning to each new location,
and inventories of our approximately 56,000 case files are undertaken quarterly
to ensure the location of all files. In rare circumstances, the Board's
staff will discover a brief or other piece of correspondence that was not
associated with the file in a timely manner, and in such instances the Board
will take action on its own motion, including reopening and issuing a new
decision where appropriate.
- Can the EOIR at least waive the fee requirement where the error is clearly
that of the EOIR?
Response: The Board is taking this question under
advisement and will examine the matter further.
- Rejection of documents. It is AILA's position that EOIR clerks are
not empowered to reject a filing tendered on behalf of an alien in proceedings.
However, clerks routinely do reject such filings.
Under what circumstances does a clerk have the authority to reject a tendered
document before it reaches a Board Member or Immigration Judge? Are there
internal guidelines for the clerical staff in making these decisions, and,
if so, can AILA be furnished with a copy of these guidelines? If an attorney
believes a document has been wrongfully rejected by a clerk, how can this
Response: With respect to the Immigration Courts,
clerks are authorized to reject any filings that do not comply with the regulations
or local operating procedures (e.g., no certificate of service, incorrect
number of copies, untimely, etc.). The Uniform Docketing System Manual, as
well as various Operational Policy and Procedures Memoranda (http://www.usdoj.gov/eoir/efoia/ocij/OPPMLG2.htm),
offer guidance to Immigration Court staff regarding when and how to accept
filings. Many of these documents are available on the EOIR web site. The Uniform
Docketing System Manual is not currently available on the EOIR website, but
may be made available by making a FOIA request. Moreover, if an attorney believes
a document has been wrongfully rejected, he or she can contact the appropriate
The Board's clerical staff is authorized to reject documents that
do not meet regulatory requirements such as documents lacking a certificate
of service, documents not accompanied by a fee receipt, and briefs that are
not timely filed. Following the regulations, and as authorized in the BIA
Practice Manual, the Board does not accept such documents in any circumstance,
and as such, there is no need for Board Member review. Please note that the
clerical staff rejects untimely briefs out of hand only where there is no
motion to accept the late-filed brief accompanying the document. Any such
motion will be considered by a Board Member. Even where there is no justification
given for the late brief, the Clerk's Office rejection notice informs the
party that the brief may be resubmitted with a motion to accept it as late,
which will be considered by a Board Member.
- Briefing Schedules. It is the experience of AILA attorneys that the
BIA often takes a great deal of time to issue a decision. What are the factors
that determine the time frames for issuance of a briefing schedule and ultimate
decision? Can we request expedited handling of certain matters before the
BIA? If so, how? Does the INS request matters to be expedited? Is there a
mechanism to expedite unopposed requests to remand matters from the BIA?
Response: The Board currently has
a pending caseload of approximately 56,000 cases, and we now receive 28,000
to 30,000 additional appeals or motions each year. This may result in some
delays in adjudication. The Board presently has an entire panel of Board Members
and staff attorneys dedicated to adjudicating its oldest cases.
The Board presently issues briefing schedules soon after the transcript
and the Immigration Judge's decision are available. Other than non-detained
case appeals, it is the Board's goal to adjudicate all other appeals and motions
filed on or after January 1, 2001, within 180 days of receipt, or within 180
days of receipt of the file with respect to appeals of INS decisions. A percentage
of the more current non-detained case appeals are adjudicated more quickly
than others, either because they fall within the categories of cases appropriate
for single-Board Member review (streamlined decisions), such as appeals with
unopposed motions to remand, or because they were adjudicated in order to
provide guidance on current immigration issues.
Any party can request that review of a case before the Board be
expedited by filing a motion to expedite with the Board. No fee is required
for this motion. Both the INS and the private bar file such motions on occasion.
The BIA Practice Manual contains guidelines for filing such expedited requests.
BIA Practice Manual (Chapter 6.5 Expedite Requests).
- Certified copies. Would the EOIR please consider expanding the circumstances
under which it certifies EOIR records? The EOIR currently does certify records
for appellate review. Every administrative, federal and state court provides
a mechanism for record certification for members of the public. We encourage
the EOIR to provide a mechanism where members of the public can obtain certified
Such certifications are needed, for example, for proof of residence status
when an I-485 is approved but it takes the INS months to process and the individual
has no evidence of lawful status, or when the individual goes to the Consulate
and the Consulate requests certified orders of voluntary departure or proof
that there was no record that the NTA was filed.
Response:The EOIR currently certifies records upon
request by Federal agencies for appellate review. It is the duty of Federal
litigators (e.g., the Office of Immigration Litigation, United States Attorneys)
to provide copies of the administrative record below to the appellate court
and to opposing counsel. Fed.R.App.P.17. Federal litigators are subject to
sanctions if they fail to comply with this court directive.
Upon request, the EOIR, in accordance with the Freedom of Information
Act (FOIA), provides complete and unredacted copies of records in two cases:
(1) when the subject of the record is the requester; and (2) when a third-party
request is accompanied by permission from the subject of the record. For further
information regarding FOIA requests to the EOIR, please see http://www.usdoj.gov/eoir/press/newsinfo.htm.
In addition, copies of some documents contained in Records of Proceedings
may be obtained by requests made to individual Immigration Courts and the
Board's Clerk's Office. Procedures regarding obtaining documents from the
Board are outlined in the BIA Practice Manual. Where a legitimate need exists,
the Office of the General Counsel has in the past and continues
to provide affidavits attesting to the existence or nonexistence of certain
documents (e.g., where an NTA has not been filed or where no appeal is pending).
The situations highlighted in AILA's question do not appear to require
a certified copy of an order or a certified copy of the record. The INS and
the Department of State should both accept EOIR orders at face value without
the need for certification. The EOIR is open to further discussion on this
issue regarding any additional needs immigration practitioners may have and
is willing to address any issues regarding the recognition of EOIR's orders
with other Federal entities.
- Shackling of respondents. Can an Immigration Judge order that an
alien be released from shackles during proceedings? Who has the ultimate decision-making
authority, the Immigration Judge or the INS? Under what authority? Does it
depend upon where the hearing is held (e.g., in an INS detention facility
or a regular Immigration Court)?
Response: Immigration Judges do not have authority
to order the INS to release an alien from shackles. That is the ultimate decision
of the INS, which is responsible for the safety and security of the alien,
since it has authority over the alien's detention. This authority rests with
the INS.According to the INS Enforcement Standard for the Use of Restraints,
the policy on the use of restraints for detainees is discretionary, based
on various factors, and may vary from one location to another. As explained
to the EOIR Office of Security by an INS Supervisory Detention Officer, INS
Detention Officers and/or contract guards escorting detainees to immigration
hearings do not relinquish their custodial responsibility to the Court and
they are not obligated to remove restraints should an Immigration Judge request
they do so. While it may appear that more latitude can be given when a hearing
is conducted in a detained setting versus a regular Immigration Court, the
final decision to remove a detainee's restraints rests with the INS representative
and not the Immigration Court.
- Use of Internet in court. Do you agree that it is inappropriate for
attorneys to be accessing the Internet during proceedings? A member complained
that an INS Trial Attorney was using Immigration Court facilities to link
up to the Internet while in Court and was cross-examining the applicant based
upon information that he obtained in Court while on the Internet.
Response:The OCIJ is taking this issue under advisement
and is examining this issue further. Therefore, the OCIJ is unable to provide
a response at this time.
- Interpreters. At the Krome Processing Center, it is the position
of the Immigration Judges that Master Calendar proceedings are not required
to be translated to detainees. In a recent case, the Immigration Court refused
to provide a translator for a Master Calendar hearing for an Iraqi detainee
stating that it was the attorney's obligation to provide the translation.
The Immigration Court did not address who would provide a translation for
pro se detainees. We believe that this determination is incorrect and request
your office to provide instructions to the Immigration Courts, especially
Krome, that interpreters are to be provided at Master Calendar hearings for
represented and unrepresented detainees.
Response:This question was previously raised with
the Assistant Chief Immigration Judge for Krome, who investigated the allegations,
and found that the Krome Judges do not hold this position. Aliens are entitled
to interpretation of all their hearings, whether they are represented or pro
se. However, at the first master calendar hearing there may not be an interpreter
available for an alien, because the Court does not have advance notice of
what language the alien speaks or because a telephonic interpreter is not
available. If an interpreter is not available, the case should be continued.
Once the language is verified, the alien should have an interpreter available
at all subsequent hearings.
- IJs in Detail Cities. Our members have reported various problems
filing documents with, and contacting Immigration Judges in, detail cities
where the courtrooms are on INS premises. For example, in some of these cities
bond hearing requests must go through local INS personnel to get to the Immigration
Judge. The INS personnel have been reported as being less than cooperative
in many instances, with the result that it appears the INS has much easier
access to the Immigration Judge than the respondents and their counsel. We
realize that the EOIR would never intend such a result. What are the proper
procedures for contacting or making last minute filings with an Immigration
Judge in a detail city? Can these procedures (including appropriate phone
numbers) be posted on your website for the detail cities?
Response:Procedures for filing documents with
the individual Immigration Courts (which are also applicable to detail courts)
are determined by Local Operating Procedures (LOPs). The LOPs for each Immigration
Court (including base cities) are available on the EOIR web site, as well
as on the individual Immigration Court's web site. See http://www.usdoj.gov/eoir/sibpages/ICadr.htm.
If this problem continues, please contact the appropriate Court Administrator.
- Emergency closings. From time to time it becomes necessary for Federal offices,
including the Immigration Courts, to close without prior notice due to unforeseen acts of
nature or other emergent reasons. This happened nationwide after September 11, and in
Houston as a result of local flooding in June. While it is understood that such tragic
circumstances cannot be foreseen, there is a great need for some means of advising the
public when the Immigration Court(s) will reopen. Knowing the Immigration Court is
closed today but not whether it will reopen tomorrow, and having no reliable way to find
out, creates tremendous uncertainty for those respondents, witnesses and attorneys
scheduled to appear before the Immigration Courts, who must often travel great
distances and prepare at length for a hearing that may not go forward. Could the EOIR
post current information concerning such closures on its website (by individual
Immigration Court), or provide a toll-free hotline the public could call to know whether a
particular court will be open on a particular day?
Response: If an attorney is concerned regarding the opening/closing of an
Immigration Court, he or she can contact the Court the day of the hearing to verify
if the Court will be open. Information regarding specific Immigration Courts is
available to the public on the EOIR website, as well as each local Immigration
Court's website. With respect to the closings on September 11, the OCIJ provided
updated information on the website. The Immigration Courts make every effort to
contact parties whenever possible; however, unforseen emergencies do occur.
- Records lost in WTC attack. Does the EOIR have the capacity to generate a files list by
attorney? For attorneys who lost their offices and records in the World Trade Center, can
the EOIR assist in reconstructing the case load? Additionally, is it possible for the
attorney to provide at his/her change of address to the EOIR once, so that all future
correspondence will be sent to the attorney's correct address?
Response: Although the OCIJ and the Board do have the capacity to generate lists
of cases by attorney of record, they do not have the resources to do this. Rather, the
OCIJ and the Board view this as the responsibility of the individual attorney to
keep track of his or her cases.
In light of the WTC tragedies, however, the OCIJ and the Board will assist
attorneys -- who can establish that his or her office or records have been destroyed
or are inaccessible as a result of the September 11th attacks -- in identifying those
cases in which he or she is the attorney of record. Attorneys requesting this
information must submit a letter to the appropriate Court Administrator, or the
Chief Clerk of the Board, requesting a list of all the cases in which he or she is the
attorney of record. The letter must also contain appropriate documentation or
evidence establishing that the attorney's records or office have been destroyed or
are inaccessible as a result of the September 11th attacks.
Once the attorney has a list of his or her cases, if he or she does not have an
extraordinary number of cases and can demonstrate immediate need for
reconstructed files, requests for such files may be made directly with the
Immigration Court. In instances where an immediate need is not demonstrated or
where an extraordinary number of reconstructed case files are requested, negatively
impacting the Immigration Court's operations, attorneys should file a FOIA
The Board unfortunately does not have
the resources to promptly respond to requests for all of the records of
proceedings involving attorneys whose offices may have been affected by
the World Trade Center attack. For this reason, affected attorneys wishing
to reconstruct their files should file a FOIA request with EOIR's Office
of the General Counsel, which has a unit dedicated to reviewing, and where
appropriate, reconstructing files as promptly as possible. The FOIA unit
will also consider requests to expedite based on exigent circumstances.
- Access to buildings. The EOIR administrators have informed local practitioners that due
to the September 11 attacks, there will be no access for Respondents without government
issued identification, and that applicants of "certain" nationalities will be refused
admission. We know of some Courts announcing a "one continuance only" policy with
regard to the ID issue. Further, some courts have relocated hearing space to inadequate
facilities based on security grounds. Is there a uniform policy from the EOIR regarding
such matters? What provisions are being made for Respondents who cannot obtain such
Response: The heightened level of security implemented since the September 11th attacks has
not significantly restricted Respondents from accessing Federal facilities.
Immigration Courts are located in a variety of facilities including Federal buildings,
commercial office buildings, and Federal, State, or local detention facilities. The
organization responsible for building security in each type of facility ultimately
decides under what circumstances the public will have access to the buildings.For
example, in Federal buildings and detention facilities, this could be the Federal
Protective Service, the United States Marshals Service, the INS or the BOP. Other
responsible organizations could include State or local detention agencies, or the
landlord of the commercial building.
Court Administrators usually work with building security (Federal Protective
Service) to ensure that Respondents have access to Immigration Courts in Federal
facilities. In many cases, it has been agreed that Respondents not having
government or photo identification may use their 'Notice to Appear' to establish
their bona-fides to be at the Court. With the exception of undergoing enhanced
security screening, Respondents are not restricted from visiting Immigration Courts
located in commercial buildings. The EOIR is unaware of any policy that restricts
applicants of "certain" nationalities from being refused admission to any
Immigration Court, whether in a Federal or commercial building, or of any court
relocating hearing space to inadequate facilities based upon security grounds.
Chief Immigration Judge Creppy has advised all the Immigration Court personnel,
including Immigration Judges, to be sensitive to situations where there have been
resulting delays as a result of the September 11th attacks and subsequent heightened
security, including encouraging the use of discretionary tools such as continuances
when the situation warrants it.
- Closed Removal Hearings. It has come to our attention that an apparently new
procedure -- perhaps called "certified removal proceedings" or "special removal
proceedings"-- is being employed for certain individuals in connection with the
investigations following September 11. The distinguishing characteristics of these
proceedings are that no information is disclosed on the "docket line" about time and place
of hearings, and the public and press are excluded from the hearings. Another hallmark
of these proceedings is the apparent universal unwillingness or inability of EOIR
employees to discuss any details. Also, some Immigration Judges are issuing "gag
orders," barring participants from discussing the proceedings outside the Court.
- Under what authority are these new, restricted access proceedings conducted?
- Under what authority are "gag orders" being issued?
- Are there any other differences between traditional removal proceedings and the
- What class or classes of individuals are subject to these new proceedings?
Response:The EOIR has provided to AILA the
list of INS detainees which was released on November 26, 2001, and a copy
of the instructions from the Chief Immigration Judge to the Immigration
Judges regarding the procedures in these cases.
- Going off the record. The issue was raised previously about when Immigration Judges
go on and off the record (i.e., are recording the proceedings or not). The response was
that "any off the record statements can be memorialized when the proceeding goes back
on the record." What should an attorney do if the Immigration Judge refuses to go on the
record? What about when the Immigration Judge goes off the record and the attorney
believes the discussion should be on the record? When questioning the Immigration
Judges as to whether the proceedings are being recorded, our experience has been that
this upsets some Judges. How should an attorney confirm the proceedings are being
recorded without upsetting the Immigration Judge?
Response: If an attorney wishes to
know if a conversation is "on the record", he or she should ask the Immigration
Judge. The attorney may request that the Immigration Judge record a conversation,
or the attorney may attempt to memorialize the conversation after the parties
go back on the record.
- Appearance of bias. In a number of cases, we have witnessed Immigration Judges
urging INS attorneys to add additional removal charges. In one recent instance in Miami,
the Immigration Judge advised the INS attorney, at a Master Calendar Hearing, where
the alien was pro se, that the attorney should add the additional charge of intending
immigrant in the event the fraud charge could not be proven. Thereafter, the Judge
provided the government with an unrequested continuance to lodge an additional charge
on the NTA. This conduct is unbecoming of a Judge and certainly does not further the
avoidance of the appearance of impropriety. What training does the EOIR offer about
Response: Every year at the Immigration
Judges' conference, the Immigration Judges are given a session on judicial
conduct and ethics. Additionally, all Immigration Judges have received a
copy of the Ethics Manual containing guidance on these issues which was
jointly drafted by representatives from OPR, EOIR, and the Department's
Ethics Office. See http://www.usdoj.gov/eoir/statspub.htm
. If an attorney is concerned regarding the conduct of a particular
Immigration Judge, he or she should contact the Immigration Judge's Assistant
Chief Immigration Judge and/or the Office of Professional Responsibility
(OPR) of the Department of Justice. Information about regarding OPR is available
on the Department of Justice website, http://www.usdoj.gov.