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.justice.gov/eoir/vll/libindex.html.
The Pro Bono Program links can be accessed at http://www.justice.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.justice.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 error.
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 new procedures:
1. To what extent are these procedures being applied? (Number of cases and locations)
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 regular mailing.
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.