UNITED STATES DEPARTMENT OF
JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
[Insert City and State]
File No. [Insert Alien Registration
#] ) Date:
[Insert Date]
)
)
IN THE MATTER OF ) IN REMOVAL
)
[Insert Respondent’s Name with ) PROCEEDINGS
Last Name All in Capital Letters], )
)
Respondent. )
_______________________________)
CHARGE(S): [Insert Removal Charge(s)]
APPLICATION(S): [Insert Application(s)
for Relief, Motions, and/or Other Requests]
ON
BEHALF OF RESPONDENT: ON BEHALF OF THE GOVERNMENT:
Pro Se or [Insert Name and Address
of [Insert
Name and Address of Department of
Respondent’s Counsel]
Homeland Security Attorney]
ORAL DECISION
& ORDER OF THE IMMIGRATION JUDGE
INTRODUCTION AND JURISDICTIONAL STATEMENT
On [Insert Date], the Department
of Homeland Security filed a Notice to Appear against the above-named
respondent. The filing of this charging document commenced proceedings
and vested jurisdiction with this Court. 8 CFR 1003.14(a). The Notice
to Appear has been admitted into evidence as Exhibit 1.
OR
The respondent is a [Enter Age]
year old, [single/married], [male/female] native and citizen of [Enter
Country] who entered the United States on [Enter Date] by [Enter Manner
of Entry]. The respondent was arrested by the Department of Homeland
Security on [Enter Date] for [Enter Removal Charge(s)]. The respondent
[concedes/contests] that he is removable as charged and is seeking
the relief of [List All Applications for Relief] in lieu of removal
in the event that the charges of removal are sustained. It is the
truth of such charges of removal and respondent’s eligibility for
the relief sought that are currently at issue before this Court.
OR
The respondent is a [Enter Age]
year old, [single/married], native and citizen of [Enter Country].
The United States Department of Homeland Security (DHS) has brought
these removal proceedings against the respondent under the authority
of the Immigration and Nationality Act. Proceedings were commenced
with the filing of the Notice to Appear (NTA) with the Immigration
Court. 8 CFR 1003.14(a). See Exhibit 1.
SERVICE
OF THE NOTICE TO APPEAR
In
removal proceedings, the Notice to Appear (“NTA”) shall be served
in person on the alien or, if personal service is not practicable,
through service by mail to the alien or the alien’s counsel of record.
Section 239 of the Immigration and Nationality Act (INA or the Act).
8 CFR1003.13.
The
respondent has conceded proper service of the NTA. Based upon the
respondent’s admissions and the certificate of service contained in
the NTA, the Court finds that the NTA has been properly served.
OR
The
respondent denied that the Notice to Appear was served upon him/her.
Counsel for the Department of Homeland Security personally served
a copy of the Notice to Appear on the respondent on the record of
this proceeding. The Court finds that the charging document has been
properly served.
OR
The
respondent denied that the Notice to Appear was served upon him/her.
As proof that the Notice to Appear was properly served, the Department
of Homeland Security offered into evidence [Identify Evidence Offered
to Prove Proper Service]. Based upon the evidence offered by the Government,
I find that the Notice to Appear [was/was not] properly served.
TEN DAY
PERIOD
The
respondent was afforded ten days following service of the Notice to
Appear prior to appearing before an Immigration Judge.
OR
The
respondent waived his/her right to wait ten days following service
of the Notice to Appear prior to appearing before an Immigration Judge.
PLEADING
The
respondent admits factual allegation(s) number [Insert Number of Allegations
Admitted]. The respondent denies factual allegation(s) [Insert Numbers
of Factual Allegations Denied].
The
respondent concedes that he is subject to removal as charged under
Section [Insert Section Number(s) of the Conceded Charge with a Brief
Description of Each Conceded Statutory Charge]. The respondent contests
that he is subject to removal as charged under Section [Insert Section
Number(s) of the Contested Charge with a Brief Description of Each
Contested Statutory Charge].
OR
The
respondent admits as alleged in the Notice to Appear that [Insert
Text of Factual Allegations Admitted]. The respondent denies as alleged
in the Notice to Appear that [Insert Text of Factual Allegations Denied].
The
respondent concedes that he/she is removable as charged under Section
[Insert Section Number of Conceded Charge(s) with a Brief Description
of Each Conceded Charge]. The respondent contests that he/she is removable
as charged under Section [Insert Number of Contested Charge with a
Brief Description of Each Contested Charge].
BURDEN
OF PROOF ON REMOVAL CHARGE
For Arriving
Aliens
The
Department of Homeland Security must prove by clear and convincing
evidence that the respondent is an arriving alien. Whether an alien
is an “applicant for admission” is answered by reference to the definition
at section 101(a)(13). If the Department of Homeland Security proves
that the respondent is an arriving alien, the respondent must prove
that he/she is clearly and beyond a doubt entitled to be admitted
and is not inadmissible under section 212 of the Immigration and Nationality
Act. Section 240(c)(2)(A). 8 C.F.R. 1240.8(b).
OR
For Aliens
Present without Admission or Parole
The
Department of Homeland Security must prove by clear and convincing
evidence that the respondent is an alien. Once alienage has been established,
the respondent must prove by clear and convincing evidence that he/she
is lawfully present in the United States pursuant to a prior admission.
Section 240(c)(2)(B). 8 C.F.R. 1240.8(c). To meet this requirement
the alien must generally prove the time, place, date, and manner of
his/her entry into the United States.
OR
For Admitted
Aliens
The
Department of Homeland Security must prove by clear and convincing
evidence that the respondent is subject to removal as charged. No
decision on deportability shall be valid unless it is based upon reasonable,
substantial, and probative evidence. Section 240(c)(3)(A).
STATEMENT
OF LAW ON REMOVABILITY/INADMISSIBILITY
212 Crime Involving Moral Turpitude
212
Controlled Substance Violators
212
Multiple Convictions
212
Traffickers in a Controlled Substance
212
Public Charge
212
Aliens Present Without Permission or Parole
212
Fraud and Misrepresentation
212
False Claim to Citizenship
212
Alien Smugglers
212
Lack of Documents
212
Previously Removed Aliens
212
Unlawfully Present Aliens
237
Inadmissible Aliens
237
Present in Violation of Law
237
Violated Condition of Nonimmigrant Status
237
Alien Smugglers
237 One Crime Involving Moral Turpitude
Within Five Years
237 Two Crimes Involving Moral Turpitude
237 Aggravated Felons
237 Controlled Substance Violators
237 Firearm Offenses
237 Domestic Violence
237
Violators of Protection Orders
237
False Claim to Citizenship
237 Termination for
Citizenship Claim
SUMMARY OF EVIDENTIARY RECORD ON REMOVABILITY
(including express
credibility findings)
The evidentiary record of this proceeding consists
of documentary exhibits [Insert Exhibit Numbers], the testimony of
[Insert Names of Witnesses], the following proffers of evidence [Insert
Proffers of Evidence], the following stipulations [Insert Stipulations],
and other evidence including [List Additional Evidence].
Documentary exhibits [Insert Numbers] have been admitted
into evidence without objection.
Documentary exhibits [Insert Numbers] have been excluded
from the evidentiary record for the following reasons [Insert Reasons/Legal
Analysis Why These Exhibits Were Not Admitted into the Record ].
I find the witness(es) credible for
the reasons that follow... [Insert Reasons to Support Your Credibility
Finding].
I find the witness(es) not credible for the reasons that follow... [Insert Reasons to
Support Your Credibility Finding].
All admitted evidence identified above has been considered
in its entirety regardless of whether specifically mentioned the text
of this decision.
FACTUAL FINDINGS ON ALLEGATIONS IN THE
NOTICE TO APPEAR
Based upon the evidentiary record consisting of [List
Evidence Admitted on Issue of Truth of the Factual Allegations], I
find that factual allegations numbers [Insert Number of Factual Allegations
You Find to be True] are true by evidence that is clear and convincing.
I find that the evidentiary record is insufficient to establish the
truth of factual allegations [Insert Number of Factual Allegations
Not Sustained].
[Give Reasoning/Legal Analysis to Support the Factual
Findings Made Above.]
ANALYSIS AND CONCLUSIONS OF LAW ON REMOVAL
CHARGES
Based upon the evidentiary record and this Court’s
stated findings of fact, I conclude as a matter of law that...
For Arriving Aliens
The Government has failed to prove by clear and convincing
evidence that the respondent is an arriving alien. Accordingly, the
removal charge is not sustained. (If none of the removal charges are
sustained, enter an order terminating proceedings).
OR
The respondent has proven beyond a doubt that he/she
is entitled to admission. Accordingly, the removal charge is not sustained.
(If none of the removal charges are sustained, enter an order terminating
proceedings).
OR
The respondent has failed to prove beyond a doubt that
he/she is entitled to admission. Accordingly, the removal charge is
sustained.
For Aliens Present Without Parole
The Government has failed to prove by clear and convincing
evidence that the respondent is an alien. Accordingly, the removal
charge is not sustained. (If none of the removal charges are sustained,
enter an order terminating proceedings).
OR
The respondent has proven by clear and convincing evidence
that he/she is lawfully present in the United States pursuant to a
prior admission. Accordingly, the removal charge is not sustained.
(If none of the removal charges are sustained, enter an order terminating
proceedings).
OR
The respondent has failed to prove by clear and convincing
evidence that he/she is lawfully present in the United States pursuant
to a prior admission. Accordingly, the removal charge is sustained.
OR
For Admitted Aliens
The Government has failed to prove by clear and convincing
evidence that the respondent is deportable as charged. Accordingly,
the removal charge is not sustained (If none of the removal charges
are sustained, enter an order terminating proceedings).
OR
The Government has proven by clear and convincing evidence
that the respondent is deportable as charged. Accordingly the removal
charge is sustained.
[Give Reasoning/Legal Analysis to Support the Conclusions
of Llaw Made Above for Each Removal Charge Contained in the Notice
to Appear.]
DESIGNATION OF COUNTRY OF REMOVAL
The respondent has designated [Name of Country] as
the country of removal. [Name of Country] was directed by the Court.
OR
The respondent has declined to designate a country
of removal. [Name of Country] was directed by the Court.
BURDEN OF PROVING ELIGIBILITY FOR RELIEF
The respondent “shall have the burden of establishing
that he or she is eligible for any requested benefit or privilege
and that it should be granted in the exercise of discretion. If the
evidence indicates that one or more of the grounds for mandatory denial
of the application for relief apply, the alien shall have the burden
of proving by a preponderance of the evidence that such grounds so
not apply.” 8 C.F.R. 1240.8(d).
RELIEF DETERMINATION
The respondent does not qualify for the relief of [List
Reliefs for Which the Respondent Does Not Qualify] because [List Reasons
Respondent Not Statutorily Eligible for Such Reliefs].
It appears that the respondent may statutorily qualify
for the relief of [List Reliefs for Which the Respondent Does Appear
to Qualify]. It is respondent’s eligibility for such relief(s) that
is currently before this Court.
STATEMENT OF LAW ON ELIGIBILITY FOR RELIEF
Adjustment of Status
- 245
1. Standard Language for Section 245(a)
2. Standard Language for Section 245(i)
LIFE Act
3. Standard Language for Cuban Adjustment
4. Standard Language for NACARA Adjustment
Asylum/Withholding
under 241(b)/Torture Convention:
1. REAL ID Template
2. Pre-REAL ID Template
3. Standard Language
Cancellation for Lawful
Permanent Residents - 240A(a)
1. Template 1
2. Template 2
3. Standard Language
Cancellation for Non-Lawful
Permanent Residents - 240A(b)
1. Template 1 for Section 240A(b)(1)
2. Template 2 for Section 240A(b)(1)
3. Template for Section 240A(b)(2)
4. Standard Language for Section 240A(b)(1)
5. Standard Language for Section 240A(b)(2)
6. NACARA (El Salvador)
7. NACARA (Guatemala)
8. NACARA Extreme Hardship Cases
Pre-Conclusion Voluntary
Departure - 240B
1. Template
2. Standard Language
Post Conclusion Voluntary
Departure - 240B
1. Standard Language
Rescission of Adjustment of
Status and Removal Proceedings
1. Standard
Language
Registry - 249
1. Standard
Language
Suspension of Deportation
- Former 244(a)
1. Standard Language
209
1. Standard Language
211(b) Readmission
Without Required Documents
1. Standard Language
216
1. Standard Language
Waivers
212(c)
1. Template
2.
Standard Language
212(d)(11)
1. Standard Language
212(h)
1. Standard Language
212(i)
1. Standard Language
212(k)
1. Standard Language
237(a)(1)(E)(iii)
Alien Smuggling
1. Standard Language
237(a)(1)(H)
1. Standard Language
237(a)(7)
Domestic Violence
1. Standard Language
SUMMARY OF EVIDENTIARY RECORD ON RELIEF
(including express
credibility findings)
The evidentiary record on the issue of relief in lieu
of removal consists of documentary exhibit(s) [Insert Exhibit Numbers],
the testimony of [Insert Names of Witnesses], the following proffers
of evidence [Insert Proffers of Evidence], the following stipulations
[Insert Stipulations], and other evidence including [List Additional
Evidence].
Documentary exhibits [Insert Numbers] have been admitted
into evidence without objection.
Documentary exhibits [Insert Numbers] have been excluded
from the evidentiary record for the following reasons [Insert Reasons/Rulings
Why These Exhibits Were Not Admitted into the Record].
I find the witness(es) credible for the reasons that follow...
[Insert Reasons to Support Your Credibility Finding].
I find the witness(es) not credible for the reasons that follow... [Insert Reasons to
Support Your Credibility Finding].
All admitted evidence identified above has been considered
in its entirety regardless of whether specifically mentioned in the
text of this decision.
FINDINGS OF FACT ON ELIGIBILITY FOR RELIEF
Based upon the evidentiary record consisting of [List
Evidence Admitted on Each Factual Issue Relating to the Relief Sought],
I find that the respondent has successfully proven that [List Facts
That You Find to be True]. I find that the evidentiary record is insufficient
to establish that [List Facts that You Find to be Not Established
or Supported by the Record].
[Give Reasoning/Legal Analysis to Support the Factual
Findings Made Above.]
ANALYSIS AND CONCLUSIONS OF LAW ON ELIGIBILITY
FOR RELIEF
(including balancing
test on discretion)
Based upon the evidentiary record and the factual findings
cited above, I conclude as a matter of law that the respondent has
met his/her burden of establishing that he/she is eligible for the
relief of [Insert Relief(s) Sought] in lieu of removal. Accordingly,
the respondent’s application for [Insert Relief(s) Sought] in lieu
of removal is granted.
OR
Based the evidentiary record and the factual findings
cited above, I conclude as a matter of law that the respondent has
failed to meet his/her burden of establishing that he/she is eligible
for [Insert Relief(s) Sought] in lieu of removal. Accordingly, the
respondent’s application for [Insert Relief(s) Sought] is accordingly
denied.
[Give Reasoning/Legal Analysis to Support the Conclusion
of Law Made Above for Each Relief Sought.]
RULINGS ON MOTIONS AND OTHER REQUESTS
[Insert here ruling
on any motion or request that has not previously been ruled upon with
an explanation of the reasons/legal analysis to support the grant
or denial of each motion or request (e.g., motions to continue, motions
to suppress, motions to terminate, motion to withdrawal as counsel
of record, etc.).]
ORDER(S)
Based upon the above, the following order(s) will enter:
ORDER: IT IS
ORDERED that the respondent’s application for [Enter Form of Relief]
be and hereby is [granted/denied].
OR
ORDER: IT IS
ORDERED that the respondent be removed to [Enter Name of Country]
or in the alternative to [Enter Name of Country].
[IF
POST-CONCLUSION VOLUNTARY DEPARTURE IS GRANTED]:
Upon the basis of Respondent’s admissions, I have determined that Respondent is subject to removal on the charge(s) in the Notice to Appear. Respondent has made application solely for voluntary departure in lieu of removal.
ORDER: It is HEREBY ORDERED that Respondent be GRANTED voluntary departure at the conclusion of proceedings under section 240B(b) of the Act, in lieu of removal, without expense to the Government, on or before ____________________, or any extensions as may be granted by the Field Office Director, Department of Homeland Security, and under any other conditions the Field Office Director may direct.
It is FURTHER ORDERED that Respondent post a voluntary departure bond in the amount of ____________________ with the Department of Homeland Security within 5 business days, or by ____________________.
It is FURTHER ORDERED:
[ ] that Respondent shall provide to the Department of Homeland Security his or her passport or other travel documentation sufficient to assure lawful entry into the country to which the alien is departing within 60 days of this order, or within any time extensions that may be granted by the Department of Homeland Security; and/or
[ ] Other ____________________.
It is FURTHER ORDERED that if any of the above ordered conditions are not met as required, or if Respondent fails to depart as required, the above grant of post-conclusion voluntary departure shall be withdrawn without further notice or proceedings and the following order, entered pursuant to 8 C.F.R. § 1240.26(d), shall become immediately effective: Respondent shall be removed to ____________________ on the charge(s) in the Notice to Appear, and in the alternative to ____________________.
Respondent is HEREBY ADVISED that if he or she fails to voluntarily depart the United States within the time specified, or within any extensions that may be granted by the Department of Homeland Security, Respondent will be subject to the following penalties:
1. Respondent will be subject to a civil monetary penalty of not less than $1,000 and not more than $5,000. INA § 240B(d). The Court has set the presumptive civil monetary penalty amount of $3,000 (or ____________________ instead of the presumptive amount). 8 C.F.R. § 1240.26(j).
2. Respondent will be ineligible, for a period of 10 years, to receive cancellation of removal, adjustment of status, registry, voluntary departure, or a change in nonimmigrant status. INA § 240B(d).
Respondent is FURTHER ADVISED that if he or she appeals this decision Respondent must provide to the Board of Immigration Appeals, within 30 days of filing an appeal, sufficient proof of having posted the voluntary departure bond. The Board will not reinstate the voluntary departure period in its final order if Respondent does not submit timely proof to the Board that the voluntary departure bond has been posted. 8 C.F.R. § 1240.26(c)(3)(ii).
Respondent is FURTHER ADVISED that if he or she does not appeal this decision and instead files a motion to reopen or reconsider during the voluntary departure period, the period allowed for voluntary departure will not be stayed, tolled, or extended, the grant of voluntary departure will be terminated automatically, the alternate order of removal will take effect immediately, and the above penalties for failure to depart voluntarily under section 240B(d) of the Act, 8 U.S.C. § 1229c(d), will not apply. 8 C.F.R. §§ 1240.26(c)(3)(iii), (e)(1).
_____________________________
[Name
of Judge]
Immigration
Judge