EOIR/Detention Watch Network Liaison Meeting
April 4, 2002
I. EOIR support for pro se respondents and for pro bono counsel
- DWN requests that EOIR distribute a memo to court administrators recommending
relaxing court rules for pro se clients (e.g., requirements regarding tabbing,
photocopying, submission dates).
For those Courts that have Local Operating Procedures (LOPs),
the LOPs provide the Immigration Judge the authority to relax some filing
requirements for either party. The Court Administrators have no such authority,
so a memo on this issue to the Court Administrators would be ineffective.
Nevertheless, the Office of the Chief Immigration Judge notes that Immigration
Judges generally tend to be more generous with pro se aliens on issues
relating to adherence to the LOPs, although there are some restrictions
that cannot be waived, even for pro se aliens.
- DWN representatives would like to explore options for possible EOIR assistance
in making country conditions documentation available to the court on behalf
of pro se respondents.
The Courts already have access to the State Department country
condition reports, and can request specific information from the State
Department on a particular claim, which is permitted under the regulations.
See 8 C.F.R. § 208.11. The regulations also permit adjudicating officials
to rely or consider other pertinent country conditions information, but
unlike the State Department information, the Court cannot independently
make such requests. See 8 C.F.R. § 208.12. Rather, it is up to the
individual parties to provide any other information relating to country
conditions, and the burden is on the alien to establish his or her eligibility
for any relief requested. The nature of the adversarial proceedings, coupled
with the burden issue, make it inappropriate for the Court to be providing
documentation (beyond that expressly permitted in the regulation) on behalf
of aliens appearing before the Court.
Other resources are available to pro se respondents to produce
the documentation for their cases. Country condition reports are available
in EOIR’s Virtual Law Library. Additionally, the EOIR Pro Bono Program
webpage currently contains numerous links to organizations and resources
that assist pro se respondents and pro bono representatives with legal
research, and asylum documentation.
The Virtual Law Library can be accessed at http://www.usdoj.gov/eoir/vll/libindex.html.
The Pro Bono Program links can be accessed at http://www.usdoj.gov/eoir/probono/probono.htm.
- DWN requests that you make a handout available to it regarding the complaint
resolution process to give to DWN members when their staff and pro bono
lawyer volunteers have serious complaints about judges.
If an attorney is concerned regarding the conduct of a particular
Judge, he or she should contact the Judge’s Assistant Chief Immigration
Judge and/or the Office of Professional Responsibility of the Department
of Justice. Information about how to do the latter is already available
to the public on the Department of Justice website, http://www.usdoj.gov.
II. Problems regarding EOIR correspondence with detained pro se respondents
It has come to the attention of advocates -- including representatives from
the Human Rights Documentation Exchange -- that EOIR has incorrect addresses
for a large percentage of respondents in immigration removal proceedings,
either while in immigration court or on appeal. DWN representatives would
like to discuss what options are available to address this systemic problem.
Both the Immigration Courts and the Board rely on the INS to advise
them of a detained alien’s location. INS does so by filing an I-830
and is required to advise EOIR by regulation at 8 C.F.R. §§ 3.19(g)
and 236.1(f). There are instances where the INS fails to timely advise EOIR
of changes in custody location. EOIR and INS meet regularly on detention issues
and this particular question has been discussed and will be continued to be
discussed in the future.
Moreover, under the INA and the regulations, it is the individual
responsibility and obligation of each alien after being released from detention
to notify the Immigration Court of any change of address or telephone number.
The Immigration Courts make a great effort to ensure that the changes of address
are timely and accurately entered into the ANSIR system, and the Immigration
Court is not aware of any systematic problem with this method. If an alien
and/or his or her representative find an error in the Court’s database,
even after the alien has filed a change of address form, however, he or she
needs to immediately notify the Immigration Court, in writing, regarding this
III. EOIR hearing procedures for security cases
DWN is requesting information about EOIR court procedures for closed hearings
in security cases. While we understand that security and privacy concerns
prevent discussion of specific case information, DWN is interested in a general
overview of EOIR’s impressions regarding implementation to date of these
1. To what extent are these procedures being applied? (Number of cases and
2. How many cases are represented?
3. How many proceeding pro se?
4. What are the notice provisions for closed hearings?
5. Which agency is responsible for giving notice?
6. What types of charges are being brought in closed hearings?
7. What is the procedure for judges to receive security clearance?
As of February 15, 2002, there were 327 aliens detained by the INS
for immigration violations who were being investigated for possible terrorist
connections. As of March 1, 2002, approximately 50% of these detained aliens
were represented by counsel. The INS informs EOIR of the names of the aliens
who fall into this category and the Immigration Judges are then informed if
any member of this group is appearing before them.
Requests for Judges to receive security clearances for access to
classified national security information are forwarded to the EOIR Office
of Security by the Office of the Chief Immigration Judge. All security clearance
requests must be forwarded to the Department of Justice Security Officer for
approval. Upon approval, the EOIR Office of Security provides the Judge a
comprehensive briefing package, and telephonically conducts the required security
indoctrination briefing. The briefing includes a review of all items in the
briefing package and explains the procedures for the proper handling, safeguarding,
and transmission of classified information.
IV. Asylee benefits
DWN requests that immigration judges give out information about the new nationwide
toll free number for asylees when they grant asylum.
The regulations governing the List of Free Legal Services providers
are explicit on who and what can be placed on the list. 8 C.F.R. § 3.61
et seq. The regulations do permit organizations, other than a bar organization,
who provide referral services to seek inclusion on the List of Free Legal
Services Providers. 8 C.F.R. § 3.61(c). Any organization seeking to have
information placed on the list must meet the regulatory requirements and make
such application as outlined in the regulations.
Immigration Judges already are responsible for giving aliens extensive
warnings, rights information and other statutorily and regulatory required
information. Requiring Immigration Judges to issue yet another piece of information
that is not mandated by statute would not only be burdensome, but will have
significant union implications.
V. Congressional oversight hearings regarding EOIR
DWN representatives request information about any follow up to the oversight
hearings and offer any support that the agency deems helpful.
All follow-up to the Congressional oversight hearings are coordinated
by the Department of justice, Office of Legislative Affairs.
VI. Children’s Pilot Project in Phoenix
DWN representatives will give an update on the Phoenix Pilot Project and
would like to discuss the Congressional hearings that were held in February.
DWN also requests a meeting to follow up on the outstanding components of
the Phoenix pilot, e.g. the “friend of the child” component.
These issues are being discussed in a broader sense in the context
of proposed legislation, on which both INS and EOIR testified in February
of this year. The Department of Justice is coordinating all follow-up to that
hearing. While we would be happy to hear your views on the issue, we have
not yet formulated a detailed position on this issue. We will continue to
work with the Hill and others on this issue.
VII. Federal funding initiative for Legal Orientation Program
DWN would like to briefly discuss the plans for transferring oversight of
this federal initiative to EOIR and requests a brief update on the agency’s
plans for implementation.
While EOIR soon expects to have the authorized funds for this initiative,
it cannot comment at this time on the agency’s plans for implementation.
EOIR is appreciative of DWN’s hard efforts to promote the expansion
of Legal Orientation Presentations across the country, and of its collaborative
support of the agency in this endeavor. Please be assured that DWN and all
other interested parties will be provided with a full opportunity to comment
on any proposals made in this regard.
VIII. Future DWN/EOIR meeting schedule
DWN requests that we institute a regular meeting every six months.
EOIR is not opposed to further meetings with DWN. However, we feel
that it may be more productive to schedule them for intervals of six months
at a minimum, but only if there are significant issues to discuss.
IX. BIA decision notification issues
DWN representatives are concerned about the possible disparity in the BIA’s
methods of delivering decisions to INS counsel and respondent (whether represented
or pro se). They are aware of at least one instance in which a BIA decision
was faxed to the INS while the respondent’s counsel received his decision
via U.S. mail. This disparity in delivery led to the detained respondent being
deported without the opportunity to appeal to federal court. If this is a
standard practice, it is of great concern to DWN members, please advise.
It is the Board’s practice to fax a decision to a party when
requested in a specific case, but only in addition to notification by mail.
We do not fax decisions to the INS as a matter of routine practice. In the
future, when one party requests a fax of the decision, the Board will also
fax the other party as well where the parties may not have yet received the
X. Case assignment procedures
For non-security cases, what is the procedure for assigning cases to individual
judges? Is there any policy to assign cases based on respondent’s country
of origin? Has there been any policy change since 9/11?
All cases are assigned to Immigration Judges randomly through the
ANSIR system. On rare occasions, however, the Chief Immigration Judge may
have to assign (or reassign) a case to particular judge for administrative
reasons (for example, a classified evidence case requires that the Immigration
Judge have a particular security clearance, or an Immigration Judge becomes
ill). This is permitted under the regulations (see 8 C.F.R. § 3.9). There
is no policy on assigning cases based on an alien's country of origin. Nor
has this procedure changed since 9/11.
XI. Withholding of removal issues
DWN members recently learned of at least two cases in which a respondent
was granted withholding of removal by an immigration judge and the INS subsequently
returned respondent to his country of persecution through a transit country.
This was accomplished either directly, by sending respondent back to a transit
country with a direct ticket to his country of persecution, or indirectly,
by purchasing a ticket to a transit point from which the authorities effectuated
his return. This obviously was not the intent of the judges in these cases.
They request that EOIR bring this issue to the attention of INS for discussion
and/or make judges aware of this issue so that they can craft orders that
take this into account the problem.
They believe that many judges may benefit from an understanding of the ramifications
on the ground of an order of withholding of removal rather than asylum, particularly
for detained respondents. One consequence is continued detention for at least
90 days. Another is the lack of resettlement benefits. They ask that an overview
of INS administrative processes related to EOIR court proceedings be added
to the agenda of a future judicial conference.
The OCIJ will take DWN's topic suggestion under advisement. Please
note, that if a party believes he or she was erroneously granted withholding
instead of asylum, then the party is free to challenge the issue on appeal
to the Board of Immigration Appeals. With respect to the two cases discussed,
this issue should be addressed directly with the INS. Furthermore, without
more specific information such as the alien number, the location and the dates,
the OCIJ is not able to assist DWN in bringing this issue to the attention
of the INS.
Updated September 2010