ORAL ARGUMENT ROOM, 24TH FLOOR
March 22, 2001
(EOIR Response in italics)
- At our last meeting, we discussed the extreme frustrations and problems generated by delays in the INS filing NTAs with the Immigration Courts. It was our understanding that Judge Creppy was going to raise the issue with INS and explore solutions. Is there anything new on this?
This continues to be a very serious problem. In one case we know of, an alien was ordered deported in absentia almost two years after the NTA was issued and the alien had tried to notify the Immigration Court of his new address. The EOIR-33 was returned because the Court had no file for him and, almost 18 months later, the hearing notice was sent to the old address where the forwarding order had, of course, expired.
As we explained at the last meeting of November 8, 2000, the Immigration and Naturalization Service (INS) determines when the Notices to Appear (NTAs) are filed with the Immigration Court, and we defer this issue to them. As promised, Judge Creppy did bring this issue to the attention of the INS, which is now aware of the problem. It is inappropriate for the Executive Office for Immigration Review (EOIR) to become further involved in this matter of prosecutorial discretion. The Immigration Court does not have jurisdiction over a case until the NTA is filed.
- A related problem concerns the delay at some Immigration Courts in getting the NTA into the "system" after the INS has filed it. Recent experiences with the Court in San Antonio shows a year or more between the time the INS files the NTA and its appearance in the EOIR docket line. Such a long delay is unconscionable and causes many problems not only for the alien, but for the INS and the Court, as well.
Although there is no set time limit for entering an NTA into the ANSIR system, timeliness has generally not been a problem in the Immigration Court. As for the situation with the San Antonio Immigration Court, an anomaly in the number of cases filed with the Immigration Court increased the pending caseload to more than 6000 cases. This is more than three times the historical amount. The Office of the Chief Immigration Judge (OCIJ) has taken steps to address this caseload and is confident that the situation has been resolved.
- Under INA section 239(a)(1), issuance of the NTA can be given in person, by personal service, or by mail to the Respondent or his counsel. The same is true of EOIR hearing notices, although we have frequently complained that attorneys generally cannot get notice of the first hearing because it is impossible to file an EOIR-28 before the NTA is filed with the Court and the initial hearing notice sent out. However, in some cases the INS is issuing NTAs to former attorneys who represented the aliens before the INS, and confirming in court that this is valid service. The NTA is served upon the Court with the former attorney address. The Immigration Court then forwards the hearing notice to the attorney with no EOIR-28 having ever been filed by that attorney. What is acceptable as proper service of the NTA to the Counsel?
The OCIJ defers to the INS on the service of the NTA. Once the charging document is filed, EOIR will have jurisdiction over the case and will notify an alien or his representative. Before EOIR has jurisdiction over the case, notices for changes of address must be filed with the INS.
- In the past, we have raised concerns about the cumbersome manner in which the Board requires attorneys to advise of address changes - i.e., by submission of a new EOIR-27 in each case. Our past requests have produced an impasse, based on limitations inherent in the Board systems. Has anything changed in this regard? As we look forward to the "Brave New World" of electronic filing, website access to docket information, etc., is there any hope that the procedures for notifying the Board of an attorney's change of address may also be simplified and streamlined?
The Board of Immigration Appeals (Board) has no plans to change the requirement that if an attorney changes his or her address, a new EOIR-27 must be filed and submitted for each alien represented. This is described in the BIA Practice Manual, sec. 2.3(g) - pg. 19. This requirement is not based solely on any limitation with our electronic data system. We do have a centralized attorney address file in our data system, where we enter every address submitted by an attorney pursuant to an EOIR-27.
However, as we have stated previously, this list cannot be relied on as containing only the appropriate address for the particular case at hand. Attorneys often submit multiple addresses due to temporary moves or as a result of opening a second office. For clarity and consistency, it is imperative that we rely on the EOIR-27 presently in the file of each individual alien to know exactly where the correspondence should be sent. Furthermore, proper service of the EOIR-27 on both the Board and on INS ensures that the INS will be apprized of the correct address for counsel of each alien for subsequent service of submissions for the record.
- When hearing notices are sent out by the Immigration Court, are restrictions placed to prevent the Postal Service from forwarding the notice in case of an address change? If so, why?
Neither the Board nor OCIJ places mailing restrictions on any notices mailed out.
Conduct of Hearings
- Many of our members have complained that, in some Immigration Courts, some Immigration Judges impose filing requirements far more stringent than the local court rules. For example, an IJ in Houston routinely requires asylum applicants to submit ALL supporting documents more than a month before the merits hearing date when the local rules provide 10 business days. He then allows the INS additional time after the respondent's documents are due to submit rebuttal information with the results that the respondent has less time to prepare and respond on the INS's exhibits than vice versa. Similar complaints have been made about IJ's in other offices. This causes practitioners with an active Immigration Court practice serious docket control problems when most cases have deadlines per the local rules, but some cases have different arbitrary deadlines.
(a) While we recognize that the local rules are "default" rules and an IJ can order deadlines and filing requirements as he or she sees fit, shouldn't such departures from the local rules be "exceptions" rather than the IJ's invariable practice? Otherwise, what is the point of having local rules?
(b) If the IJ is going to depart from the local rules and advance filing deadlines, shouldn't the same deadlines apply to both sides?
(a) Yes. Departures from the local rules should be the "exceptions".
(b) No. An Immigration Judge has the discretion to set deadlines as he/she determines on a case by case basis. Applying the example given, the INS often finds itself in a similar situation when the initial filing is by the INS, then rebuttal filings are by the alien.
- Is EOIR considering expanding sites for new courts or circuit-riding to locations in the South and elsewhere that have experienced substantial growth in immigrant populations? The Immigration Court in Memphis, for example, covers a huge area with only one judge.
EOIR is always reviewing its caseload, which is more determinative to establishing an Immigration Court than geography is. This year, we have added regular details to Memphis, Atlanta, Orlando and Bradenton to assist with the increased caseload in these Courts.
- What guidelines, if any, are issued to Immigration Judges regarding when and when not to go "off the record"? Sometimes things are said by opposing counsel of the Immigration Judge that an advocate would want "on the record" as evidence of bias or prejudice against the respondent or counsel or other impropriety. It is difficult to object because IJ's do not always announce when they go on or off the record, and even if the comment was known to be off the record, objection to the IJ's finger on the recorder switch ensures further hostility in the proceedings.
8 C.F.R. § 240.9 states that "[t]he hearing shall be recorded verbatim except for statements made off the record with the permission of the Immigration Judge." Any off the record statements can be memorialized when the proceeding goes back on the record.
- AILA continues to object to the practice of conducting merits hearing by use of video camera. We urge the EOIR to rethink its policy of permitting this practice. If a video hearing will be conducted, we request that the respondent and counsel, if any, must be given written notice in adequate time for an objection to be filed. If the respondent objects, we request that the proceedings not be conducted via video camera.
Section 240(a)(2)(A)(iii) of the Immigration and Nationality Act permits the use of televideo conferencing for hearings, including merits hearing. See also 8 C.F.R. § 3.25(c). The alien does not have a right to object to the use of televideo, but they can object to the use of telephonic hearings for a merits hearing. Consistent with the statute, the OCIJ policy permits the use of televideo for merits hearings, provided the Immigration Judge agrees to it. Unless the statute is amended on this issue, there will not be a change in current practice.
- Under the proposed regulations published in the Federal Register on December 26, 2000, regarding the expanded powers of the Office of the Chief Immigration Judge and the Director, what types of guidelines are you anticipating to impose upon the Immigration Judges? Further, will there be generic time frames or expedited tracks for various types of cases?
We are still reviewing the proposed regulations and the public comments received. In our opinion, the proposed regulations clarify the existing authorities that already exist within EOIR and do not expand those authorities. This new regulation does not set goals. EOIR has had and continues to have policies setting target goals in certain types of cases.
- Our members have started receiving some of the single Board Member "affirmance without opinion" ("AWO") decisions from the Board, under 8 CFR § 3.1(a)(7). We are concerned that some of these cases do not appear to reasonably fall within the necessary criteria for AWO, as set forth in the regulations, and should therefore have received a more thorough consideration. This prompts us to ask several questions:
(a) Approximately what percentage of case completions at the Board are single Member AWO decisions? Do you expect this percentage to increase?
(b) Is there any internal review of the single Board Member's decision that the case is appropriate for AWO? Or is the single Member solely responsible for both the decision on the merits AND the decision that panel review is unnecessary?
(c) In cases where respondent's counsel receives an AWO decision in a case that he or she reasonably believes is not within the established criteria for AWO and deserves more through review, what should be done? File a Motion to Reconsider?
(d) If a Motion to Reconsider (or reopen) is filed in an AWO case, who will review and decide that motion? The same Board Member who entered the AWO in the first place? A different single Member? A panel?
(e) Are you aware of any reported decisions from the Courts of Appeals addressing the AWO procedure?
Approximately five percent of all Board completions since the implementation of streamlining (PDF) in September 2000 have been decisions of single Board Members affirming an Immigration Judge's decision without opinion. Approximately 4,500 single-Board Member decisions have been issued since September, but approximately three-quarters of these have been ministerial or procedural adjudications, such as unopposed motions. Approximately another 2,000 cases have been decided as three-Board Member decisions by the Board Members assigned to our Streamlining Center under the Pilot Program.
There is no internal review of a single-Board Member's decision that an affirmance without opinion is appropriate in a particular case. However, all affirmance without opinion cases to date have been in categories predetermined by the en banc Board to meet the regulatory criteria. As before, we have attached the memoranda (PDF) of the Chairman listing these categories, as well as appropriate categories for other types of single-Board Member decisions. These memoranda are also available on EOIR's website.
There exists no procedure at the Board for a respondent to challenge a Board decision solely on the basis that the case should not have been affirmed without opinion. Motions to reconsider on this basis are specifically barred by regulation a 8 C.F.R. §3.2(b)(3). However, a motion to reconsider on substantive grounds may be filed. Currently, these motions are adjudicated by the signing Board Member who has the option of sending them to a three-Board Member panel. In summary affirmance cases, the decision below becomes the final agency order under 8 C.F.R. § 3.1(a)(7)(iii), and is subject to judicial review to the same extent as any other final order.
We are not aware of any judicial decisions addressing the use of single Board Member decisions affirming without opinion.
- What is the status of the implementation of the Soriano rule (§ 212(c) Relief for Certain Aliens in deportation Proceedings Before April 24, 1996 (65 Fed. Reg. 44,476 (July 18, 2000))?
The "Soriano regulation" was published as a final rule on January 22, 2001, and became effective on that date. The EOIR is applying the regulation to pending cases, and is accepting the special motions allowed for by the regulation. Before the Board, unopposed motions are being adjudicated as single-Board Member orders through the streamlining process. Before the OCIJ, the Immigration Judges adjudicate the motions. The regulatory deadline for filing these motions is July 23, 2001. For further information, please go to EOIR's web page at www.USDOJ.gov/eoir/press.htm.
- Is EOIR considering any formal or informal policies, or offering regulations, regarding LIFE Act issues which are certain to arise in proceedings? For example under LIFE's late amnesty provisions, the vast majority of cases will arise outside the 90-day window for motions to reopen, and some applicants will be outside the U.S.
a) Will an additional motion to reopen be allowed if the Board denied a previous motion to reopen based upon grounds unrelated to LIFE?
b) Will an applicant still be required to file an application for relief along with the motion to reopen, in light of the fact that the application will be confidential and under the sole jurisdiction of the INS?
i) What standard for a prima facie case will the Board apply?
c) Will the Board issue a stay of deportation/removal in these cases?
d) How will these cases be handled in the interim period preceding publication of regulations?
Regulations are being drafted to address the manner in which the various forms of relief accorded by the LIFE Act and its amendments may be pursued. As each component of the LIFE Act has separate and distinct requirements, both substantive and procedural, EOIR will defer commenting on the implementation of the LIFE Act until the regulations are published and effective.
Proposal for Regulatory Changes
- At our meeting last November, we raised the issue of granting jurisdiction over I-130's to IJ's. In response, EOIR stated that "The Office of the Chief Immigration Judge (OCIJ) is aware of this issue and is currently evaluating the situation. Although the evaluation has not yet been completed, the OCIJ expects to consider various options to help improve the situation, including, but not limited to, possible regulatory change." Please provide an update.
The OCIJ has completed its evaluation and is now in the process of determining which options to take in addressing this issue. With respect to detained cases, EOIR and INS have worked out an agreement that the INS will "look into" those cases which have been continued for over 90 days as a result of the delay in adjudication of the I-130s or I-140 petitions. There has not yet been a final determination on how to address non-detained cases, although there was some thought that in some cases, the alien may now be eligible for a "V" visa as per the LIFE Act and its Amendments. However, until the regulations are published, we cannot comment on the particulars.
It is clear, however, that the OCIJ will not take jurisdiction over the I-130 petitions. To do so would require investigative functions under the control and responsibility of the Immigration Judge. This is an inappropriate role for an Immigration Judge.
- With respect to the issue previously discussed at these meetings regarding departures during an appeal, AILA has developed a proposal to address the concerns of the aliens. Basically, AILA proposes allowing readmission of LPRs during the pendency of an appeal to the same legal status they held when they departed. The legal status and rights of LPRs should be protected throughout the period of administrative review, and the issues presented for review should be decided on its merits, and not by operation of a legal bar to such an adjudication. AILA remains committed to a fair resolution of this issue and has members prepared to work with EOIR in the working group.
EOIR remains willing to participate in the working group with AILA on this issue. After the March 26, 2000 EOIR/AILA LIAISON MEETING, EOIR made a commitment to form and participate in a working group addressing this concern. Our commitment stands, and we anticipate the formation of the working group very shortly.
- How does EOIR advise its Immigration Judges on changes in the regulations, statutory enactments and new cases? If there are bulletins, memos, or newsletters, can AILA have access to these so that we will be up to date on what the Immigration Judges are reading?
AILA and the public at large currently has access to the source materials for EOIR advisals to the Immigration Judges regarding changes in the law. Immigration Judges have access to Westlaw, the EOIR virtual law library, the internet, and other Immigration Court library resources. The Immigration Judges look to the Operating Policy and Procedures Memoranda (OPPMs) on matters of policy. These OPPM's are available on the internet and are readily made available. Information regarding statutory changes, regulatory changes, and published cases relating to immigration issues are made available by a combination of email, the internet, and snail-mail. Additionally, Immigration Judges keep abreast of the state of the law through many of the sources available and maintained for the immigration practitioner.
- As we expressed at our last liaison meeting, we want to thank the Board for doing such a great job in setting up its Virtual Law Library on the Internet. The design is excellent, and we have found it extremely useful. Are there plans to make the site even more useful by placing all past and future decision on this site, including unreported decisions?
There are presently no plans to place all unreported Board decisions in the Virtual Library. We have considered this idea, and have not ruled out doing so with prospective cases, but there are serious impediments. There are statutory restrictions on the information that can be revealed to the public. Battered spouses and children, asylum claimants, andlawful permanent residents are a few examples. To accommodate the statutory requirements, redactions must ensure that all possible identifying information is removed from any information made available to the public. The examination and evaluation to redact the information is accomplished manually for each and every case. This would entail an enormous expenditure of time and personnel resources. At this time, we are posting the Board's indexed decisions on our website. We will continue to explore ways in which to give the public access to all prospective BIA decisions electronically.
- A person seeking relief from removal may have several remedies available (8 C.F.R. sec. 240.11 details the applications for relief available to a person in removal proceedings.). When a relief application (commonly, asylum) is filed, and then a superior form of relief (like adjustment of status) subsequently becomes available, some Immigration Judges are pressuring respondents to withdraw the earlier application. This causes problems for the litigants because no one wants to withdraw an application for relief that may be needed if the primary application is denied. Yet, no one wants to spend considerable time submitting or reviewing exhibits and testimony that will probably prove unnecessary. In one situation reported to us, the IJ threatened off the record that if the application did not withdraw the asylum application, the IJ would not consider the superior form of relief. Then on the record, the IJ asked "did anyone coerce you to withdraw your application?"
a) Are there guidelines requiring withdrawal of an asylum application before other forms of relief can be considered? Or is it entirely up to the individual Immigration Judge?
b) If there are no guidelines, could EOIR develop some?
a) There are no guidelines requiring withdrawal of an asylum application before other forms of relief can be considered.
b) No. It is up to the respondents to determine which forms of relief they wish to pursue. Please refer to Question 8 for matters concerning off the record discussions.
- Are there standard guidelines or regulations regarding what records are forwarded to the Immigration Court by the asylum offices when a case is referred or denied? If so, does the Immigration Court receive the entire file contents including the asylum officers' notes and evaluation? Are there national standards to be applied to all Immigration Courts?
OPPM No. 00-01, § XII (C) states the following:
Referring the Affirmative Application: If an affirmative asylum application is not granted by the Asylum Office and the alien is not in a legal status, the application, along with any supporting documents, will be referred to the Immigration Court by the INS asylum Office at the time the charging document is filed. The copy of the application and supporting documents referred to the Court may not contain any annotation or other information of a deliberative nature regarding the application (other than administrative corrections to the application, as affirmed by the applicant's signature in Part H of the application). Aside from the application and supporting documents, only the ANSIR generated INS Referral Sheet should be filed with the Court. Under no circumstances should any document containing reference to INS credibility findings be filed with the Court. If this does occur, the Court Administrator should promptly notify the INS to discontinue any such filings and return those documents to the INS prior to filing the application in the ROP.
- After an IJ conditionally grants an asylum case subject to the 1,000 per year limit of INS sec.207(a)(5), how and when will EOIR inform the respondents and counsel that the condition has been removed?
The EOIR and the INS have established a process to ensure the proper administration of the 1,000 allocated numbers per fiscal year. Each time an Immigration Judge makes a conditional grant of asylum in a case based upon coerced population control policies, the conditional grant is recorded in EOIR's computer-tracking system. At the end of the fiscal year, the OCIJ, the Board and the INS asylum offices around the country, report their respective conditional grants of asylum to the Asylum Office at INS headquarters. The INS Commissioner then certifies whether there are numbers available under the cap. The INS chronologically lists the aliens by alien number (A#), based on the date of the conditional asylum grant. The first 1,000 aliens on the list are assigned an authorization number in conformance with the cap of no more than 1,000 grants of asylum per fiscal year based on coerced population control policies. The INS then transmits the list to EOIR, who notifies aliens who had been granted conditional asylum by an Immigration Judge or the Board, that the condition on their grant has been lifted and that they are now eligible for full asylum benefits. It is not possible to determine how soon the notices will be mailed out after a conditional grant of asylum.
In June of 2000, EOIR sent notices to the aliens who had been granted asylum conditionally from October 1, 1998, to March 18, 1999. We are awaiting the next group of authorization numbers from the INS, which will date back to March 1999, but it is not possible to ascertain when the numbers will be released, or how much time it will take in the future. This will all depend on the number of aliens in line ahead of him or her.
EOIR and INS recognize that this causes difficulty for aliens waiting to adjust their status, especially those with dependents who will no longer be eligible to adjust because of age. EOIR and INS are working together to promulgate a regulation which will implement this statutorily imposed cap as fairly as possible.
Any alien who was granted conditional asylum by EOIR on or before March 18, 1999, but who has not received a notice advising that the condition on the grant has been lifted may check on the status of the asylum grant by promptly sending a letter with a copy of the order granting conditional asylum, to either OCIJ or the Board. The letter should include the alien's current address, and the name, address and telephone numbers of the alien's attorney or representative, if any.
- When an Immigration Judge grants adjustment of status or asylum and the INS waives appeal, the Respondent is given only a form memorandum order as proof of his or her new status. This document is not recognized as evidence of employment authorization or identity by employers, drivers license bureaus and other state offices. Getting an ADIT stamp or employment card for the INS can take weeks or months after the hearing. Can EOIR develop some procedure whereby passport stamps or other recognizable documentation of status could be issued in such cases?
No. The jurisdiction and authority to issue such documents rests, appropriately, outside of EOIR.
- If an attorney wishes to personally review a record of proceedings and listen to the cassette(s) of a closed file located in another city, is it possible for EOIR to transfer the requested file to the local Immigration Court for easier access? Are there any special procedures that need to be followed in such cases?
EOIR does not transfer closed case files to another court if the purpose is for an attorney to review the case file in person. It is presumed that the request is made by the attorney of record. (Access to information in the case file is restricted to attorneys of record, unless the request falls within an exception.) Copies of ROPs, including cassettes, are available under FOIA.
- Please address the reasoning behind the BIA's current policy of refusing to rule on a motion for stay of removal until the movant is in the INS custody with deportation imminent. Is there any reason such motions could not be filed and adjudicated after receipt of the I-166 bag and baggage letter? This would avoid unnecessary detention costs and also allow the Board to adjudicate these motions on a more comfortable schedule, not to mention deceased tension for all involved.
Limiting requests for stays to where the alien is in INS custody is a long-standing policy based on appropriate use of resources and requiring a real case or controversy for the Board to intervene. There is no real case or controversy and no emergency until the alien is in INS custody and removal is imminent. Adjudicating emergency stays is extremely disruptive to the deliberative process and should be reserved for those situations where there exists a true need to do so. This policy has been reexamined and reaffirmed several times in the past six years, and it will remain in effect.
Additionally, Board precedent directs that compliance with these notices is a factor to be considered in adjudicating the merits of the motions to reopen that are filed. In some situations, the INS stays the removal itself once the alien appears, thereby obviating the emergency and the Board's need to intervene.
- The INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS (IFTPE) reports that the Federal Labor Relations Authority (FLRA) has issued acomplaint against EOIR, on behalf of the Immigration Judges, which is set for hearing in April2001. Are you able to comment on the issue and prospects for settlement? Will this complaint impact the adjudication of cases in any way?
EOIR is not able to comment on this matter. This matter is in litigation and also pertains to personnel issues. It is therefore inappropriate for discussion. This matter will not impact the adjudication of cases.
- As part of AILA's ongoing monitoring of EOIR's disciplining of immigration practitioners, please provide us with the latest statistics and any observations to date regarding the disciplinary program. Problems? Successes? Course corrections?
To date, EOIR has imposed discipline against 39 immigration practitioners, all of whom were attorneys, based upon either (i) reciprocal discipline, where the attorney had been previously suspended by a state or federal court, and/or (ii) criminal convictions for serious (i.e., felony) crimes. In each such case, the Office of the General Counsel (OGC) sought, and the BIA granted, an immediate suspension from practice before the Board and the Immigration Courts.
Final orders of discipline have been entered by the Board in 19 of the aforementioned cases - 6 practitioners have been expelled, 3 have been indefinitely suspended, and 10 have been suspended for periods ranging from 30 days to 7 years (though in each case, the respondent must meet the definition of attorney provided in 8 CFR 1.1(f) to be eligible for reinstatement). Only one matter filed as an "original complaint" with EOIR (not related to reciprocal discipline or a criminal conviction) has resulted in the issuance of a warning letter (where the lawyer repeatedly failed to appear for scheduled hearings, without good cause). OGC has received a few complaints that we anticipate will result in either a warning letter or admonition (in such matters, because the misconduct is minor or aberrational, OGC can, in lieu of instituting formal proceedings and at its discretion, issue a warning letter or admonition, and the practitioner has no administrative appeal, as provided by the Rules of Professional Conduct for Practitioners ("Rules")).
EOIR has not held any disciplinary hearings to date, but OGC anticipates that OCIJ will schedule 3 hearings in the near future in cases involving reciprocal discipline and/or criminal convictions, where respondents have requested hearings.
- In Matter of Lozada, the Board held that a claim of ineffective assistance of counsel must, if the grounds alleged are asserted to be a violation of ethical or legal responsibilities, be accompanied by evidence of whether a "complaint has been filed with appropriate disciplinary authorities regarding such representation."
a) Now that "EOIR's attorney discipline regulations are in full force, will EOIR be considered the "appropriate disciplinary authority" for satisfying this component of Lozada?
b) If so, will it be necessary to actually file a complaint separate and apart from the motion or brief wherein the charge of ineffective assistance is made? If a case is made in a brief or motion of ineffective assistance of counsel, and the other requirements of Lozada are met, could not the Board itself take notice and appropriate action where required just as would be the case if an appeal is summarily dismissed? It seems that allowing the Board to decide for itself whether disciplinary action is appropriate from the pleadings would be a more appropriate means of resolving potential disciplinary issues. "Otherwise, respondents and subsequent counsel are forced to guess whether the Board will consider the grounds of ineffective assistance to be a disciplinary matter requiring grievance or, to be safe, alternatively force them to uniformly file grievances against prior counsel whether justified or not.
The question of whether the filing of a complaint under the attorney discipline regulations or asserting a violation in a brief or motion satisfies the Lozada requirement is best addressed in the context of a case adjudication.