The purpose of this outline is to give the newly-appointed
immigration judge guidance in how to conduct the master calender.
The Master Calendar: Origin and Nature, Then and
Origin. The master calendar concept originated in
San Diego circa 1977, years before the founding of the Executive Office
for Immigration Review in 1983. At that time, the San Diego judges
were part of the former Immigration and Naturalization Service and
were conducting exclusion and deportation hearings, the forerunners
of today’s removal hearing. The new cases were set for merits
hearing upon receipt of the charging document, but very few of those
hearings were completed at first setting as the parties moved for
time to prepare, retain counsel and so forth. The judges then decided
to set all new cases for initial hearing on Monday at 9:00 a.m. in
order to conduct a pre-trial of these cases.
Nature. Thirty years ago, the nature and purpose
of the master calendar were to conduct a thorough pre-trial of each
case to identify issues, set filing deadlines and briefing schedules,
and get each case in a posture so that it could be transferred to
the individual calendar for merits hearing and an oral decision, all
in one session of the individual calendar.
If a case was susceptible to summary disposition,
such as a simple matter of voluntary departure, or a matter where
deportability was clearly shown and no relief available, the case
was disposed of on the master calendar with an oral decision from
Today, as it was thirty years ago, the purpose of
the master calendar remains the same, namely, to dispose of cases
on that calendar that are susceptible to summary disposition and to
ready the other cases for merits hearing and decision in one session
of the individual calendar.
A case should not be set for merits hearing unless
it is ready for hearing. It may take more than one master calendar
session to get a case ready for hearing, and it thus may be necessary
to continue a case to another master calendar for more pre-trial conference
Simply stated, the master calendar is the pre-trial
docket, and the individual calendar is the trial docket. The master
calendar feeds the individual calendar. The effectiveness of the latter
is dictated by how well the former is conducted.
The BIA has commented that neither the Immigration
and Nationality Act nor regulations define “a master calendar.”
It is understood to mean a plenary stage of the proceedings at which,
when little or no testimony is taken, the immigration judge has great
flexibility to identify issues, make preliminary determinations of
possible eligibility for relief, resolve uncontested matters, and
schedule further hearings. In addition, this is the stage of the proceedings
at which the judge generally ensures that the alien has been advised
of his or her rights, including the right to apply for relief, and
has been given notice and warnings regarding his or her obligation
to attend future hearings, file applications and evidence in a timely
manner, and otherwise cooperate with the orders of the immigration
court. In re Cordova, 22 I&N Dec. 966 (BIA 1999).
The 9th Circuit Court of Appeals observed that a
master calendar hearing generally resembles a docket call or status
call in state or federal courts. The local operating procedures for
immigration courts that discuss a master calendar hearing generally
advise aliens to be prepared to respond to the allegations contained
in the charging document, to present all applications for relief from
removal, and indicate how much time will be needed for trial. Generally,
an alien may request a continuance to find counsel, or concede removability
and make an affirmative request for relief from deportation. Khan
v. Ashcroft, 374 F.3d 825, 827 (9th Cir. 2004)
Preparing for the Master Calendar Hearing
Review the files. The typical master calendar may
have detainee or non-detainee cases. It may number as few as 10 cases
or as many as 40. No matter what the number, it is important to review
the files before the call of the calendar, paying particular attention
The Notice to Appear (NTA) charging document:
Is it signed by the issuing officer?
Is there proper proof of service on the reverse
of page 1?
Are the allegations and charge correctly stated?
Case law states that the respondent is entitled to
fair notice of what the Government is alleging. The NTA is not prepared
by lawyers and there will be errors. If there are, make a note to
address the matter with the Government attorney at master calendar.
The Government can correct NTA shortcomings by lodging
factual allegations and charges on Form I-261 “at any time during
the hearing, ” this according to the regulations. If corrections
are needed, and they cannot be done at the calendar session, the case
should be continued to another master calendar with instructions to
the Government attorney to file by a deadline prior to the next hearing.
And counsel for the respondent can be required to
file a pleading before next master calendar hearing.
Is it a venued-in case?
Transfer-in cases can be troublesome. Some are thick
files, the record material is disorganized, there were many continuances
and there are no Minutes explaining what has gone before. The regulations
impose upon the receiving judge the obligation for reviewing the record,
and this may include listening to the tape recording of the prior
Did the immigration court staff send proper notice
of hearing to the respondent?
If there is an attorney of record, the attorney’s
notice of appearance will be on the left side of the record of proceedings
file, the green EOIR 28. Check the right side of the file to ensure
that notice of hearing went to the attorney. If not, have notice sent.
Notice of hearing to counsel is also notice of hearing
to the respondent, so it is not usually necessary to send notice of
hearing to the respondent if he or she is represented.
If the respondent is not represented, is the address
on the file copy of the hearing notice accurate?
Compare the address on the file copy of the hearing
notice with the address of record shown for the respondent. If it
is not correct, have the staff send corrected hearing notice.
Accuracy is important. In the 9th Circuit Court of
Appeals jurisdiction, an error of even one digit on the Zip Code can
void an absentia order of removal .
Review the rest of the file. There may be exhibits
from a prior hearing. Make a note as to what they are.
There may be issues of law or fact raised by the
filings, so make a note of the issues as a reminder to take the matter
up with the parties at master calendar hearing.
Research. It may be that the file review reveals
unfamiliar issues. Take the time to do some preliminary research.
Ask other judges if they have had experience with
such issues. Experienced judges can give valuable guidance to novice
judges and are usually eager to assist them.
If there is access to a judicial law clerk, give
the law clerk a clear recitation of the issue and ask him or her to
do some quick research.
Observe other master calendar hearings. It is a good
idea to watch other judges while they do their master calendar sessions.
Take notes as to their technique.
Test the equipment. It is most important to learn
the operation of the audio cassette tape recorder. Just prior to the
commencement of the master calendar hearing, check the operation of
the tape recorder by running a test tape to make sure that the recorder
is functioning properly and all microphones are operational. Also
make sure that there is an adequate supply of blank recording tapes
on the bench.
If the interpreter is to use the electronic earphones,
have the staff test the earphones to make sure that they are operational.
It is often necessary at master calendar hearing
to use the services of the contract interpreter by means of the telephone
which is located on the bench. The phone has a remote microphone which
is used by the respondent to communicate with the interpreter. Have
the staff check the microphone to make sure it is operational.
Adjournment and call up codes. Obtain a list of the
adjournment and call-up codes. At master calendar hearing, when each
case is adjourned, write on the computer worksheet on the left side
of the file what the adjournment code is for each case that is continued
to another date.
The staff member assisting at master calendar will
input the adjournment code into the computer; the judge must designate
the code. The staff assistant will also input any call up code.
Call up codes are used by the staff to track the
filing of motions and relief applications that are submitted subsequent
to master calendar hearing. The record of proceedings file will be
pulled from the filing cabinet when the promised item has been received.
The file is usually then given to the judge for further review. Conversely,
if the promised item is not filed on time, the staff member will refer
the file to the judge and await further instructions from the judge
as to what action should be taken in light of the failure to file.
Conducting the master calendar hearing: general considerations
It is suggested that the judge start the master calendar
session on time. Starting on time is not only courteous but also guarantees
the attorneys who attend the session will soon understand that the
judge expects them to appear on time.
Keep in mind that the purpose of the master calendar
session is to get each case in a posture for efficient disposition
on the merits. If the case is a simple matter involving voluntary
departure, it should be resolved at the master calendar session rather
than setting it over for an individual calendar hearing. If the case
is one where issues cannot be resolved at master calendar, the master
calendar is used as a tool to get the case ready for transfer to the
individual calendar and hearing on the merits with a decision from
the bench and all in one session.
Also keep in mind that the inquiry with regard to
any case can be simply stated as follows:
Is the respondent an alien?
If the respondent is an alien, is he or she deportable/removable/inadmissible
on the charge or charges set forth in the notice to appear?
If the respondent is deportable/removable/inadmissible,
is there any provision of law which would allow the respondent to
remain in the United States permanently?
If there is nothing in the law which would allow
the respondent to remain permanently in the United States, is the
respondent going to be leaving the United States under order of removal
and deportation or will the respondent be granted the privilege of
voluntary departure at his or her own expense?
Conducting the master calendar hearing: the represented
In handling the master calendar case that is represented
by counsel, it may be helpful if counsel read from a script. See
Attachment A for an example.
The script attached to this outline addresses all
of the salient points to be covered at master calendar hearing. Copies
of the script can be handed out to the attorneys before the judge
takes the bench and the staff member assisting can explain to the
attorneys that the judge expects them to follow the script when their
cases are addressed.
Pleading to the Notice to Appear. It is crucial that
a clear pleading is made to the charging document. Some attorneys
like to “talk story” in making a pleading and, at the
end of their dissertation, it is not at all clear if the factual allegations
and the charge or charges have been admitted or denied. Bear in mind
that the regulations mandate that there be a pleading to each factual
allegation and each charge.
If there is a denial of a factual allegation or charge,
the immigration judge should then ask the Government attorney to present
evidence on the matter. This usually consists of documents, such as
the Form I-213 Record of Deportable/Inadmissible Alien.
The Government attorney may announce that the documents
bearing on the issue are not ready for filing at that particular time.
In that event, the judge should consider postponing the case to another
master calendar session with instructions to the Government attorney
to file the documents by a deadline set by the judge. This deadline
would, of course, be prior to the next master calendar hearing. It
is suggested that such a deadline be set to allow time for the respondent
to file any notice of objections to the documents.
Once a filing deadline is set, the judge may wish
to consider setting a filing deadline for counsel for the respondent
to file a notice of objections to the government documents.
The advantage of setting a filing schedule for filing
of Government documents is to afford the respondent fair notice as
to what is being offered as proof of unlawful status and to also give
the Government fair notice as to what objections are lodged with regard
to its evidence. In addition, this procedure allows the immigration
judge to consider in advance of the next master calendar hearing the
nature of the Government documents and the objections of the respondent
to those documents.
On the other hand, if the Government attorney offers
documents on a contested allegation or charge, counsel for the respondent
should be asked whether he or she stipulates that the document relates
to the respondent and, if so, is there any objection to the document.
Of course, counsel for the respondent may ask for time to prepare
on the issue of possible objections. Again, in such an instance, the
case could be set over to another master calendar with a filing deadline
for counsel to file notice of objections.
If the pleading to the charging document admits all
the factual allegations and concedes all charges, the immigration
judge should then state for the record whether or not the pleading
establish deportability/ removability/inadmissibility. The federal
regulations and case precedents both provide that, if there is no
denial to the factual allegations and charges and if no issue of law
or fact remains, than the pleadings settle the issue of deportability/removability/inadmissibility.
Counsel for the respondent should be questioned as
to what country of removal and deportation the respondent would select,
should that be the ultimate disposition of the case.
If counsel for the respondent states a country of
deportation that is the country of the respondent’s birth and
citizenship as set forth in the notice to appear, both the respondent
and counsel should be questioned as to whether the respondent has
any fear of returning to that country.
If the respondent declines to choose a country of
deportation, the immigration judge can proceed in one of two ways.
First, the immigration judge can state that, since the respondent
has not chosen a country of deportation, the statute expects the judge
to designate a country and, therefore, the judge will designate the
country of birth and nationality as shown in the Notice to Appear.
Or the judge may prefer to ask the Government attorney for a recommendation
as to the country of deportation.
When the judge designates the country of deportation,
the judge must tell the respondent that he or she has the right to
apply for asylum and withholding of removal under the Immigration
and Nationality Act and also for protection under the Convention Against
Torture if he or she fears returning to the designated country. If
the respondent expresses such a fear, the immigration judge must then
set the case over to another master calendar for the filing in court
of the asylum application.
If the respondent expresses no fear of returning
to the country designated by the judge, there is no need to continue
the case for the purpose of allowing the filing of an application
The usual scenario is that the notice to appear mentions
only one country of birth and citizenship. However, there may be unusual
situations where the judge must consider designation of more than
one country of removal and deportation, should that action become
necessary. This usually arises in a case where the respondent is a
native of one country but a citizen of another country. Or it may
come up because the respondent, prior to coming to the United States,
had immigrant status in a third country. There is nothing in the statute,
regulations or case law that prohibits the immigration judge from
designating more than one country of removal and deportation. Of course,
if more than one country is chosen, the respondent must be given an
opportunity to apply for asylum and related remedies if he or she
fears to return to the alternative country of deportation.
The issue of relief. The next topic for discussion
with the represented respondent at master calendar hearing is the
issue of remedies against deportation and removal. This topic must
be explored even in a case where the respondent contests that he or
she is subject to removal or deportation, as it may well be that the
Government has enough evidence to sustain the allegations of fact
and charge even in the face of a contest.
With an experienced, proficient attorney, this is
a relatively easy matter to explore because the lawyer will have done
a thorough job of investigating the case to determine all remedies
against removal and deportation.
Unfortunately, not all attorneys appearing at master
calendar are experienced and proficient. The attorney appearing may
be a complete novice in the area of the immigration law. For whatever
reason, this lawyer has agreed to represent a client in an area of
the law the attorney knows little or nothing about. Or the attorney
appearing may be a veteran of immigration court hearings but that
attorney lacks attention to detail and possesses a superficial knowledge
of the law and the facts of the case. In these two situations, in
order to make certain that justice is done, the judge may resort to
questioning the respondent to ferret out the salient facts regarding
possible remedies against removal and deportation.
The judge should determine whether or not the respondent
is the beneficiary of a visa petition that has been filed on his or
her behalf with the Department of Homeland Security, this to accord
him or her status for immigrating to this country as a lawful permanent
resident. Visa petitions are usually based on such things as family
relationship, employment, and even on the status of a battered spouse
of an immigrant or lawful permanent resident immigrant.
If the visa petition is approved by the Government,
the judge must consider whether the approval will render the respondent
eligible to apply for adjustment of status to that of lawful permanent
resident under section 245 of the Immigration and Nationality Act.
If the respondent is an immigrant, the judge must
consider if he or she is eligible to apply for cancellation of removal
as a longtime permanent resident under section 240(A)(a) of the Immigration
and Nationality Act. The judge must inquire into such matters as how
long the respondent has been an immigrant, whether the respondent
has resided continuously in the United States for seven years after
having been admitted in some status, and whether the respondent has
any criminal record which would stop the accrual of residence for
cancellation purposes. The judge does this by questioning the attorneys
as to the existence of a criminal record or any other facts that would
disqualify the respondent from cancellation eligibility.
If the respondent is a longtime nonpermanent resident
of the United States, the immigration judge must consider whether
the respondent shows apparent eligibility for cancellation of removal
under section 240A(b) of the Immigration and Nationality Act. Again,
the judge must inquire as to length of residence in the United States,
whether the respondent has a lawful permanent resident immigrant or
United States citizen parent, spouse or child for whom the respondent
could claim exceptional and extremely unusual hardship if the respondent
is expelled from this country, and also the matter of whether the
respondent has any disqualifying factors, such as a criminal record
or any prior “voluntary returns “ by immigration officers
without benefit of a deportation or removal hearing. To garner these
facts, the judge should question the attorneys and, if need be, the
Issues of eligibility for the cancellation remedy
for both permanent and non-permanent residents must include the question
of any cut-off of residence or physical presence under section 240A(d)(1)
of the Immigration and Nationality Act.
A further issue of eligibility for cancellation is
the bar precluding the remedy for any alien who was previously granted
section 212(c) relief, previous cancellation, or suspension of deportation
under former section 244(a) of the Act. The judge should interrogate
the parties on this point, along with other disqualifying factors
in 240A(c) of the Act.
In addition, nonpermanent residents may be ineligible
for cancellation of removal under section 240A(b)(1) (A) with regard
to physical presence or 240A(b)(1)(C) relating to offenses under sections
212(a)(2), 237(a)(2) or 237(a)(3) of the Act.
Setting for merits hearing. Once the issues in the
represented case have been identified and explored, the immigration
judge must make some disposition. If, for example, the only issue
presented is voluntary departure, the judge should be able to dispose
of the case at master calendar. If the facts are incomplete on an
issue, then a set-over to another master calendar would be appropriate.
In many other cases, however, when the issues are clear and the preliminary
facts developed, there are complicated issues of deportability or
removability or involved applications for relief which require a written
application, and these cases must be set for merits hearing on the
Individual calendar hearing time is allocated in
half-hour blocks of time. Therefore, if the judge has determined that
the case will take one hour of trial time to resolve, the judge will
choose one hour of hearing time of the individual calendar to allocate
for that case. Of course, this will require an estimation in time
as to how long it may take to resolve the case. On the other hand,
if there are complicated issues of law or fact, more trial time should
Some attorneys for the respondents wish to bring
to court numerous witnesses whose testimony would be cumulative. To
save hearing time, the judge should encourage the attorneys to submit
in advance of hearing affidavits under jurat or declarations under
penalty of perjury, this in order to cover witness testimony.
With the individual calendar hearing date decided
upon, the immigration judge must next consider the setting of a filing
date for relief applications, briefs and motions.
The filing deadline will be a date chosen by the
judge some time prior to the individual calendar merits hearing. The
reality is that many attorneys are lackadaisical in that they promise
to file by a certain date but later take no action. Other attorneys
meet the filing deadline but submit a relief application that is incomplete
in that all of the information called for by the application is not
The most effective way of dealing with attorneys
who do not meet filing deadlines is to emphasize at master calendar
hearing that the deadlines set by the immigration judge must be respected
by the attorneys and upheld by the immigration court. In order to
give emphasis to this concept, the judge should consider issuing a
generic master calendar order which will stress the necessity of meeting
the filing deadline and also stress the necessity of submitting a
completed relief application.
Continue the case. With all matters addressed, the
immigration judge will then continue the master calendar hearing.
The judge should state on the record that written notice of the upcoming
hearing is being furnished it to the parties.
The judge must make some written memorandum of the
master calendar session. This memorandum or notation should indicate
what matters were discussed, issues resolved, filing deadlines, and
the next hearing date. The computer-generated worksheet on the left
side of the record of proceedings file can be used for this purpose.
It has spaces to show whether the charge was admitted or denied, the
country of removal and deportation, the relief applications to be
filed, and upcoming hearing dates. It also has a space at the bottom
to show what rights were covered and what the language of the case
will be at merits hearing.
The Executive Office for Immigration Review has never
adopted a Minutes sheet for master calendar hearing. The San Diego
experience, however, indicates that such a sheet is a very useful
tool for the presiding judge to track the progress of a case. The
judges in San Diego use a Record of Master Calendar Hearing. This
document clearly shows what transpired at the master calendar hearing
session. It is signed by the respondent, the attorneys, and the immigration
judge. Copies are handed to the attorneys at conclusion of the master
The judge should have a Master Calendar Checklist
and check the items off as he or she goes through the case.
See Attachment B for an example of such a checklist.
Conducting the master calendar hearing: the unrepresented
This master calendar hearing will follow the same
general pattern as the hearing for the represented respondent. However,
the immigration judge must communicate directly with the respondent
and inform him or her of the nature of the hearing and hearing rights.
Establish communication. After opening the hearing
by reciting the date of hearing, the name of the immigration judge,
the place of hearing, and identifying the Government attorney in attendance
and the interpreter, if one is present, the immigration judge must
then establish communication with the respondent.
Ask the respondent the following questions:
What language you speak and understand best?
What language did you first speak as a child?
With this information, the judge can then determine
whether the services of an interpreter are needed. If the language
is Spanish, a staff interpreter is usually assigned to the master
calendar to assist. If the interpreter is not on hand, the immigration
judge must use the telephone to contact the interpreter, who will
then assist by speaker phone.
The name of the respondent. Once communication is
established with the respondent with the help of the interpreter,
the respondent should then be asked to state his or her true name.
Service of the Notice to Appear. With the respondent’s
identity established, the immigration judge should then show to the
respondent the notice to appear and ask him or her if he received
If the respondent states that he or she has received
the Notice to Appear, the judge should then mark the document in evidence
as Exhibit 1.
If the respondent denies having received a copy,
ask Government counsel if there is an extra copy in the Government
file. If not, have the court staff assistant make a copy.
The respondent’s address. Ascertain the respondent’s
address by asking him or her if the address shown on the Notice to
Appear or on other papers in the record of proceedings file is his
or her correct address.
Then explain to the respondent the address reporting
requirement, emphasizing that, if his or her address changes, he or
she is required by law to report the change of address to the immigration
court on the (blue) Form EOIR- 33: give the respondent that form.
Explain the penalties for failure to appear at future
hearing. Stress to the respondent the importance of appearing on time
at all future hearings. Explain that, if the respondent does not appear,
the law expects that the judge will proceed in the respondent’s
absence and order removal and deportation if the evidence so requires.
Emphasize that, if an absentia order is issued, the respondent will
become ineligible, for a period of ten years to come, for most relief
from removal and deportation, including voluntary departure, adjustment
of status, cancellation of removal, change of status, and registry.
In order to stress to the respondent the importance
of the address reporting requirement and need to appear at all future
hearings, the judge may wish to give to the respondent, with a copy
to the court file, a generic Master Calendar Certification which records
in writing that these advisements were give. An example of such a
Certification is attached as Attachment
Explain the nature of the hearing. Tell the respondent
the general nature of the hearing and also explain, in non-technical
language, the contents of the Notice to Appear.
Bear in mind that the respondent is not an attorney
and may have difficulty in understanding the legal terminology in
the charging document. For example, the respondent may not understand
the “crime of moral turpitude” terminology and the judge
should explain the concept in simple language.
Explain the right to counsel. Once the immigration
judge is satisfied that the respondent understands the nature of the
proceeding, the judge must explain the right to counsel. In doing
so, the judge should make the following points:
That counsel must be of the respondent’s own
choosing-- neither the judge nor the Government can appoint counsel.
The judge should ask the respondent if he or she
can afford to hire a private attorney. If the answer is yes, the judge
should point out to the respondent that he or she may find a lawyer
by consulting the yellow pages of the local telephone directory in
a search for a private attorney. If the respondent states that he
or she is without funds to hire an attorney, explain that it may be
possible to secure the services of a volunteer lawyer who can represent
the respondent at little or no cost.
The immigration judge should give the respondent
a list of the volunteer legal assistance offices, pointing out that
one of those attorneys may agree to represent the respondent at no
The federal regulations indicate that the legal assistance
office list must be served upon the respondent and the list must be
of those offices with volunteer lawyers located in the jurisdiction
where the hearing will be held. However, the respondent may not reside
in the jurisdiction where the hearing is being held, and it then would
be appropriate to also serve the respondent with a copy of the legal
assistance office list for the area of his or her residence. These
lists can be obtained by the staff assistant from the EOIR website.
With the right to counsel explained, the judge would
then ask the respondent if he or she understands the explanation and
whether he or she wishes to have a postponement of hearing to seek
Explain other legal rights. The immigration judge
should also explain to the respondent the additional hearing rights,
which includes the right to examine and object to evidence presented
against him or her by the Government, the right to cross-examine Government
witnesses, the right to present his or her own witnesses and evidence,
and the opportunity to make a statement in his or her defense. The
respondent should also be assured that, if the judge determines the
respondent is in the country illegally, the judge will carefully examine
the case to determine what remedies may be available for the respondent
to avoid an order of expulsion and that the respondent will be given
an opportunity to apply for such remedies.
Adjourn or continue the hearing. If the respondent
states that he or she wishes to have a lawyer, the judge must then
continue the hearing to another master calendar date to afford him
or her time to find counsel. The judge must instruct the respondent
that, in the search for counsel, the respondent must be diligent and
contact all offices on the legal assistance office list. Again, as
with the represented respondent, the judge must give the respondent
written notice of the next hearing.
If the respondent declines counsel, and the judge
is satisfied that the waiver of this right is knowing and intelligent,
the immigration judge should then proceed with the hearing by placing
the respondent under oath.
Pleading to the Notice to Appear. The judge then
asks the respondent to plead to the Notice to Appear, asking the respondent
to admit or deny each factual allegation and each charge. With regard
to a pleading to the charge, the immigration judge should explain
the charge to the respondent and then ask the respondent if he or
she understands the charge. Once the respondent indicates an understanding
of the charge, the judge should then ask the respondent whether he
or she admits or denies the charge.
If the respondent makes a contest, ask the Government
attorney in attendance to present evidence to support the factual
allegations and charge. If these documents are in English, it may
be necessary to go off the record while the interpreter in attendance
translates the documents to the respondent.
If time or other considerations, such as the fact that the interpreter
is appearing by telephone, preclude a translation of the documents
to the respondent, the judge should then set the case to another master
calendar date with instructions to the respondent to find a friend,
relative or other person to translate the documents.
The judge should then ask the respondent to present
a defense to the charge. The judge should ask the respondent whether
he or she has any witnesses, papers or documents to present at that
time or to tell the judge about if such items are not available, which
would show that the charge in the Notice to Appear is not correct
or would show that the respondent has some legal right to be in the
If a defense is made, the judge must consider the
presentation of the respondent and make a ruling whether the charge
is still sustained despite the defense.
On the other hand, if the respondent admits and concedes
all on the Notice to Appear, and the judge is satisfied that no issues
of fact or law are present, the judge can tell the respondent that
the pleadings to the notice to appear establish the charge in the
Notice to Appear.
Country of removal or deportation. The judge should
explain to the respondent that, if
it later becomes necessary to order his or her removal
from the United States, the respondent may choose a country to which
he or she may be deported. Usually, the respondent will choose the
home country. The judge should ask if he or she has any fear of returning
there and, if so, it may be that the alien should be allowed to file
an application for asylum.
Relief from removal and deportation. Since the respondent
is not represented, the judge must question him or her to determine
what remedies may be available to avoid an order of expulsion. The
following matters should be considered:
Immigrants. If the respondent is subject to deportation
but has been lawfully admitted to this country for permanent residence,
the judge must consider if the respondent qualifies for cancellation
of removal as an immigrant. Date of admission, residence in the United
States after having been admitted in some status, and any disqualifying
bars must be considered.
Other aliens. The judge must question the respondent
to determine what remedies may be available to the alien who is subject
to removal and deportation either as a nonimmigrant or as an alien
who entered this country without inspection or parole by immigration
officers. Questioning must center on those elements to qualify for
cancellation of removal as a nonpermanent resident under section 240A(b)(1)
or (2) of the Immigration and Nationality Act. Again, the judge must
consider any disqualifying factors.
Adjustment of status. A visa petition may have been
filed on the respondent’s behalf which, if approved by the Government,
may render the alien eligible for adjustment of status under section
245 of the Immigration and Nationality Act.
Registry. If the respondent is a longtime resident
of the United States, the judge must consider whether the respondent
shows apparent eligibility for Registry under section 249 of the Act
Citizenship issue. Although the respondent may have
been born in a country outside the United States, it may be that the
respondent has a claim to United States citizenship through either
acquisition at birth or derivation after birth. Therefore, the respondent
should be questioned as to whether his or her parents or even grandparents
were ever American citizens.
The judge should now ask the Government attorney
whether the respondent’s Government immigration file shows any
relief applications having been filed or is there anything the Government
would like to state for the record. The recitation should be translated
to the respondent and, if it asserts negative facts, ask the respondent
if he admits or denies those facts.
Filing the relief application. If the respondent
shows apparent eligibility for a form of relief from deportation that
requires a printed application form, the immigration judge should
give the respondent the application form with instructions to complete
it and file it at a later time.
This part of the master calendar hearing for the
unrepresented respondent can prove very difficult for the judge. The
usual respondent does not speak English and may have a limited education.
The judge must explain to the respondent that, in addition to completing
the application according to the instructions on the application form,
the respondent must pay the filing fee with the Department of Homeland
Security and also register with the Department’s fingerprint
registration center in order for his or her fingerprints to be taken
to support the relief application.
The experience of the author with regard to the unrepresented
respondent filing the relief application has shown that instructing
the respondent to file the application by mail is not the best method
of filing. Instead, it is suggested that the respondent be told to
return to another master calendar hearing to present the application
to the judge. The judge can then review the application to determine
if it is correct and complete and also to ensure that the filing fee
has been paid (or the respondent applies for fee waiver, if indigent),
and also that the respondent has registered for fingerprinting. Experience
as shown that it is extremely difficult to accomplish these tasks
D for a checklist of points to cover with the unrepresented respondent
at master calendar hearing.
Detainee Master Calendar Hearing
The recently-appointed immigration judge may be assigned
to a detention facility where large numbers of detained respondents
await removal hearing. With such a large docket, it simply may be
impractical to hear each case individually. Instead, the judge will
probably group for cases together for hearing. There is no prohibition
against joinder of cases as long as the group hearing is conducted
in such a way to avoid offending due process.
The Immigration and Nationality Act and implementing
regulations are silent on the issue of joinder. Guidance, however,
is available in relevant case law.
The immigration court hearing may include multiple
respondents without automatically transgressing the bounds of due
process. U.S. v. Barraza-Leon, 575 F.2d 218 (9th Cir. 1978).
It is within the discretion of the immigration judge,
subject to the requirements of due process, to join cases of different
respondents if he or she deems it necessary to promote administrative
efficiency. Matter of Taerghodsi, 16 I&N Dec. 260 (BIA 1977).
The number of respondents to be joined in a group
hearing is within the discretion of the judge. However, there are
limits on the number of cases that should be heard in a pairing, at
least within the jurisdiction of the 9th Circuit Court of Appeals
. The circuit has held that 33 and 29 respondents is the “outer
limit” of numbers to be heard in a group hearing. U.S. v. Nicholas
-Armenta, 763 F.2d 1089, 1091 (9th Cir. 1985); U.S. v. Calles-Pineda,
627 F.2d 976, 977 (9th Cir. 1980).
It is recommended that the new judge begin group
hearings with small numbers of respondents. As the judge becomes more
comfortable with the process, the numbers can be enlarged. In any
event, it is recommended that a maximum number of 25 respondents be
included in a group hearing.
With regard to organizing the cases for group hearing,
it is best to select only those cases where the respondents are able
to speak English or Spanish. Respondent speaking other languages should
probably be heard individually as they will require the services of
the telephonic contract interpreter.
In organizing a group hearing, it may be the preference
of the judge not to include in a group the lawful permanent resident.
Such cases are relatively few in number and can be heard individually.
A great deal of efficiency is gained if the immigration
judge can coordinate with the Government detention officers to screen
the detainees to determine which among them are contesting their cases
and which are not. Those who are contesting can be heard in one group
while those who are not contesting are heard in another. San Diego
experience has produced a questionnaire that is completed by the immigration
officer upon an interview with the respondent at the detention center.
This questionnaire is attached to the back of the notice to appear
and the questions posed and answers given clearly indicate whether
the respondent is “ fighting his case” or is willing to
take a removal and deportation order, in other words, asking for a
“non-contested removal” hearing.
The detainee Master calendar hearing is conducted
in much the same way as the non-detainee Master calendar. In other
words, all salient points discussed in the non-detainee setting must
be covered in the detainee setting as well. In the detainee setting,
it is important to get individualized answers from each respondent
to important matters. For example, it would offend due process if
the immigration judge obtains from the group a “ mass silent
waiver of the right of appeal.” See, e.g., U.S. v. Lopez-Vasquez,
985 F.2d 1017 (9th Cir. 1993).
Record the detainee master calendar hearing
For the non-contested cases, the hearing is recorded
on one cassette tape. Depending on the length of hearing, more than
one tape may be required. The immigration judge must make sure that
the tapes are properly labeled. Each tape should have the file number
and the name of the first respondent on the detainee list and, after
the name of the respondent, some judges prefer to enter “et.
al” after the name. Some judges prefer to label the tapes “
DMC” to designate a Detainee Master Calendar tape. Be sure to
mark the tapes in sequence and also to mark the total number of tapes,
e.g. tape 1 of 2.
For contested detainee master calendar group hearings,
the procedure is somewhat more complicated but procedures can be used
in order to save time. The judge can begin the hearing with all of
the respondents in one group and on one tape. The judge will review
the preliminary matters including the nature of the proceeding and
the various rights. These individuals are contesting removal and therefore
will be seeking counsel. After the judge has explained all of the
rights to the group, the judge will then address each respondent individually
and a grant each respondent a continuance to find a lawyer. The initial
hearing tape is labeled tape 1 and, after the hearing, the staff assistant
will make duplicate tapes so that each record of proceedings file
has a copy of the initial hearing tape. When the second detainee master
calendar hearing is convened later to see whether the respondent has
found counsel, that hearing will be for that respondent alone and
the hearing tape will be marked by the judge as tape 2.
It is rare that a respondent contesting removal will
not request a postponement to find a lawyer. That individual, however,
should not be heard in the group hearing but heard individually after
the group hearing is adjourned.
The recently appointed immigration judge will need
some kind of language guidance as to what to say in the detainee master
calendar setting. Attached to this outline are “scripts”
the judge can use.
Detainee Master Calendar Scripts
See Attachment I for an initial hearing with a represented
alien and Attachment J for a script dealing with the initial master
calendar group hearing.
There is no official system for marking exhibits.
Most judges mark the exhibits in numerical sequence. Other judges
use the numerical sequence system but prefix the exhibit number with
an “R” for a respondent exhibit and “G” for
a government exhibit. If the hearing consists of multiple respondent’s,
such as a father, mother, and two children, the exhibits can be marked
with identifying letters. For example, the Notices to Appear for the
family would be marked as Exhibit 1, 1-A, 1-B, 1-C.
The judge must develop a system for identifying which
exhibits have been accepted as evidence and those which have not.
If a document is offered for the record and the judge determines it
is inadmissible, the judge should nevertheless mark for identification.
In that way, the appellate authority reviewing the case can determine
the nature of the document that was excluded from evidence. The judge
should assign an exhibit number to the document and, after the document
number, make a notation such as “ identification only.”
If, later in hearing, the judge decides to admit
the document as evidence, the judge can remove the legend “for
It is a good practice to mark as many documents for
evidence at the master calendar hearing as possible. This will save
time during the individual calendar merits hearing, as the judge will
not have to spend time at individual calendar merits hearing marking
Before a document is marked as evidence, the judge
should ask the opposing party whether there is any objection to the
document. If there is an objection, the judge should rule on the record
whether the objection is sustained or overruled, and the reasons.
Record the master calendar hearing. It is a wise
practice to always record the master calendar hearing. Doing a master
calendar hearing while not recording same can generate significant
problems later. The regulations contemplate that all hearings will
be recorded verbatim. If the judge decides to “go off the record”
to discuss something with the attorneys, with the discussion completed
the judge should go back on the record and recite the substance of
the discussion and ask each party to affirm the recitation.
Chambers conference. It is not recommended that the
judge get into the habit of holding chambers conference before hearing.
If the topic of conversation in the conference will be the case at
hand, and if the topic is important to the case, it makes no sense
to talk about the topic in the office of the immigration judge prior
to hearing. Rather, the topic of conversation should be placed on
the record. If, however, the judge insists on using a chambers conference
prior hearing , the judge should then take the bench and go on the
record and recite the substance of the conference and ask both parties
to ratify the recitation.
The newly-appointed immigration judge must keep in
mind that the master calendar is not simply a setting calendar but
a pretrial calendar which has a direct relationship to the individual
calendar. The more thorough the master calendar hearing, the greater
the chances that the judge will complete the case at individual calendar
in one hearing session.