AILA-EOIR Liaison Agenda Questions

March 4, 2004

1. Please clarify the Board's position on an appellee's ability to raise legal or factual errors outside the scope of issues raised by an appellant on the Notice of Appeal. For example, a Respondent granted 212(c), but denied withholding, is generally satisfied with the result and will not appeal the court's order. However, if DHS chooses to appeal the 212(c) grant, the Respondent may be unaware that DHS has perfected an appeal until after the 30-day deadline. Unfortunately, current Board decisions appear to limit review only to those issues raised by the party filing the appeal; such a policy appears to require that, in every case where DHS reserves appeal, even a prevailing Respondent will have to file a Notice of Appeal. The Board clearly has sua sponte authority to consider any meritorious issues on appeal, whether or not raised on the Notice of Appeal; further, cross-appeals are not barred by the regulations.

Response:

The general practice of the Board is to limit review to those issues raised on the Notice of Appeal. AILA is correct that the Board has authority to consider any issue in the case, and the Board has done so when appropriate on a case by case basis. Please note that each party has the opportunity to submit a reply brief to an appeal, and the Board will consider reasonable arguments made in appellate briefs regarding ramifications of the appeal. However, if a respondent is concerned about being able to raise an issue on appeal, the safest course of action is to file a Notice of Appeal within the 30-day appeal deadline once DHS has reserved appeal.

2. Who decides if a case will be published, and how is the decision made? What happened to the "Indexed" decisions? The website list is incomplete and static. Who decides if a case will be "indexed" and how is the decision made?

Response:

Decisions of the Board are designated for publication by a majority vote of a three-Board-Member panel or by a majority of the en banc Board. 8 C.F.R. § 1003.1(g). The criteria for selection of a case for publication includes resolution of an issue of first impression, modification or clarification of an existing rule of law, resolution of a conflict of authority, and discussion of an issue of significant public interest. Board of Immigration Appeals, Practice Manual, Chapter 1.4 (d)(i). The Indexed Decisions were created as an internal tool to provide guidance to the attorney staff. The Indexed Decisions were made available to the public as a courtesy. The Board Members have not been designating decisions for indexing lately and are considering different internal methods of disseminating guidance contained in unpublished decisions to the attorney staff.

3. Individuals granted adjustment of status by an Immigration Judge are encountering significant delays in obtaining evidence of permanent residence from USCIS, because USCIS feels it must run security checks on the permanent resident before providing such documentation. It appears that USCIS is skeptical as to whether required security and background checks are completed in the course of proceedings, or find that completion of the checks is not properly noted. Please clarify which checks are performed prior to a grant of status and how the results are noted in the alien's file and/or otherwise communicated to USCIS.

Response:

The Immigration Court is not involved in running security checks. This question should instead be directed to the Department of Homeland Security.

4. EOIR has long recognized the importance of special handling for cases where relief depends on USCIS adjudication of an immigrant petition providing an immediately available immigrant visa. Despite EOIR's efforts to secure a reliable method to identify and request expedited consideration of such cases by USCIS, many respondents continue to be prejudiced not only be the lengthy USCIS backlogs, but by disparate treatment in their requests for continuances in different jurisdictions. Will EOIR consider issuing guidance to Immigration Judges regarding continuances for matters where there is evidence of a meritorious petition and eligibility to proceed if approved? Will the Board consider reiterating its position to avoid the disparate results related to requests for continuances reported by AILA members nationwide?

Response:

At the present, the Office of the Chief Immigration Judge does not have plans to issue guidance to Immigration Judges on this issue. With respect to continuances, please refer to 8 C.F.R. § 1003.29 as well as applicable case law, regarding the circumstances under which an Immigration Judge can grant a continuance.

The Board will consider the matter of appropriate standards for continuances as the issue arises in the context of cases before it. If a party disagrees with an Immigration Judge's decision regarding a request for a continuance, he or she should raise it on appeal to the Board. Please also see previous EOIR responses to similar AILA questions in the November 8, 2000, March 22, 2001, and the November 29, 2001, EOIR/AILA Liaison Meeting Questions at www.justice.gov/eoir/ailaarchive.htm.

5. What is the current status of the 212(c)/St. Cyr regulations?

Response:

The regulation is pending at the Office of Management and Budget (OMB). To check the status of a regulation pending at OMB, please refer to the OMB website at http://www.reginfo.gov/public/do/eoPackageMain.

6. EOIR previously indicated it would review and promulgate a policy related to use of hand held computing devices or PDAs in the courtroom. Please update us on this policy.

Response:

On February 3, 2004, the Chief Immigration Judge issued Operating Policies and Procedures Memorandum (OPPM) 04-01, "Electronic Devices in the Courtroom," which is available to the public on the EOIR website at www.justice.gov/eoir/efoia/ocij/oppm04/04-01.pdf (PDF).

7. Although the use of technology in the courtroom has accelerated dramatically in the past few years, due to "security concerns," in certain facilities, Respondents and their counsel have been barred from even bringing laptop computers into the building. Although AILA respects that there may be legitimate security concerns, Respondents should not be prejudiced where security protocols exist to determine whether such hardware presents a threat. What is EOIR's position on such restrictions?

Response:

On February 3, 2004, the Office of the Chief Immigration Judge issued OPPM 04-01, "Electronic Devices in the Courtroom," which is available to the public on the EOIR website at www.justice.gov/eoir/efoia/ocij/oppm04/04-01.pdf (PDF). As stated in OPPM 04-01, in any immigration courtroom or detention facility administered under agreement between EOIR and other federal, state, and local authorities, the local rules or regulations regarding the possession and use of recording equipment or other electronic devices in that facility shall apply. Because many immigration proceedings are conducted in facilities under agreement between EOIR and other federal, state, and local authorities, policies regarding items and equipment allowed in each type of facility will vary. All persons should be aware of and adhere to all the local rules or regulations governing facility security before attending any immigration proceeding.

8. What is the current status of the E-Filing initiative? We understood that attorney registration at least initially would not be compulsory; why was a regulation on attorney registration proposed and published in December 2003 if there are no current plans to proceed with E-Filing?

Response:

A. What is the current status of the E-Filing initiative?

The e-filing initiative is still in its first phase, which is the integration of EOIR's databases (ANSIR and BIAP). User Acceptance Testing was conducted in November 2003 and the development staff has been working to fix problems discovered during testing. In addition, testers identified a variety of enhancements that would make the new database, and any subsequent e-filing system, more user friendly. EOIR hopes to pilot the new database (CASE) in the late spring/early summer and then begin the rollout to the Courts.

Although EOIR is still working on the completion of its integrated database, the agency also continues to plan for future phases of e-filing. This planning includes electronic fee payment, authentication and security issues, and process flow for electronic filing. Such planning will place EOIR in a position to begin to move forward with future e-filing modules once CASE has been rolled out. It is possible, however, that budget constraints will preclude EOIR from moving ahead too rapidly with any portion of electronic filing.

B. Why was a regulation on attorney registration proposed and published in December 2003 if there are no current plans to proceed with E-Filing?

On December 30, 2003, EOIR published a proposed rule, with a comment period that ended on March 1, 2004, that would require registration of all immigration practitioners representing individuals before the Board of Immigration Appeals and the Immigration Courts.

Under the proposed regulation, successfully registered practitioners would initially receive a user identification and password from which they could make changes to their account profile (e.g., changes of address). Additionally, they will be provided with an opportunity to electronically associate pending cases with their new user identification. Practitioners who avail themselves of this opportunity will significantly reduce the possibility of future scheduling conflicts (e.g., multiple cases scheduled at the same time in the same or different courts), a feature unavailable with EOIR's current database system.

As other phases of e-filing become available, user identifications and passwords will enable immigration practitioners to have access to case information, and eventually will permit them to electronically file documents in proceedings.

9. USCIS has successfully instituted online fee payment for certain applications. Is there any progress on the ability of EOIR to accept online filing fees?

Response:

EOIR is actively pursuing the ability to accept fees online for applications filed at the Board. The agency has investigated the options available and has determined how EOIR can interface with pay.gov to accept fees online. Programmer resources are currently allocated to the integration of EOIR's databases; however, EOIR plans to allocate such resources to the creation of an online fee payment interface once the pilot for CASE has begun later this year.

10. When a copy of hearing tape(s) is provided by EOIR, the recording speed is set for the Court's multiple speed recorders and cannot be understood on a typical consumer's tape recorder. Because tape recording is becoming an outdated technology, attorneys find it difficult, costly and time consuming to have tapes re-dubbed at "normal" speeds. Is there any way for copies to be made such that the tapes are able to be played on standard market machines?

Response:

EOIR currently does not have a means to adjust the speed of the duplicating tape equipment so that tapes can be copied at "normal" speeds. However, electronic stores do sell equipment which permit the listening (or adjustment of speed) of the court tapes.

11. When aliens are granted asylum before the USCIS Asylum Office, the letter informing them of the grant contains valuable information regarding benefits and assistance available to them incident to their new status. Because individuals granted asylum by an IJ do not necessarily come before USCIS to receive the same information, would EOIR consider adopting and providing the same information upon an asylum grant?

Response:

Information about benefits is best disseminated by the agency responsible for those benefits. It would not be appropriate for EOIR to disseminate information to the parties regarding eligibility for different kinds of benefits which might be available to them from other agencies. Nevertheless, the Office of the Chief Immigration Judge (OCIJ) has addressed this issue with the Office of Refugee Resettlement (ORR). OCIJ has determined that it is best to provide information regarding benefits and assistance available to refugees by posting an ORR flyer in EOIR waiting rooms and pro bono rooms. OCIJ has also encouraged ORR to contact AILA and other pro bono organizations to disseminate this information. Information regarding ORR can be located on the internet at www.acf.hhs.gov/programs/orr.

12. AILA previously suggested that the Board consider incorporating a notice on any final order regarding a Respondent's appeal right and the jurisdictional time limits for filing a petition for review, similar to the advisals made in immigration court and on written immigration judge decisions. Has the Board made a decision on that provision?

Response:

The Board has stated in the Practice Manual, available on the EOIR website at www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm, that it cannot advise parties regarding the propriety of or means for seeking judicial review. Advisals from the Immigration Courts are provided to the parties and pertain to appeal within the same agency and to a single appellate body. 8 C.F.R. § 1240.13(d). Appeal from Board decisions may be taken to different appellate courts, which might or might not have jurisdiction over the proceedings, depending on the circumstances of the case. These appeals are covered by complicated procedural provisions. It would be inappropriate for the Board to provide information regarding federal appellate practice.

13. Members report that in detained cases, a decision on a bond appeal is rarely received prior to a decision on the merits of a case, mooting out the bond appeal. Does the Board maintain statistics on the timing of decisions on bond appeals? What about timing of decisions on the merits where there is also a bond appeal? Due to the special nature of a bond appeal, might not this category be given a higher priority for review?

Response:

The Board handles all cases involving detained aliens on a priority basis and has a stated goal under the Government Performance Results Act of 1993 of completing detained cases within 180 days of the filing of the Notice of Appeal. While the Board does not maintain separate statistics on processing times for bond appeals, it is certainly not the Board's experience that a majority of its bond decisions are moot as a result of a decision on the merits appeal. Bond proceedings and removal proceedings are separate and apart. They do not arrive at the Board at the same time and are not processed in the same way. Please note that not all bond cases involve detained aliens.

14. Although we understand that EOIR does not comment on Circuit Court cases, does OCIJ or the Board in any way incorporate the criticisms of the recent court rulings attacking the quality of the decision making? What efforts has EOIR taken to raise the quality of its decisions? Does EOIR make efforts to communicate regarding perceived deficiencies with specific judges or only as general education for the bench as a whole?

Response:

EOIR does not comment on federal court cases. With regard to Immigration Judge training, please see EOIR's previous response in the March 22, 2001 EOIR/AILA Liaison Meeting questions, available on the EOIR website at www.justice.gov/eoir/statspub/eoirailaMarch01.htm

15. Although the Board has previously explained its process for considering Emergency Motions, the information is not readily accessible to the general public. Would the Board consider posting the information on its website to avoid confusion?

Response:

Information regarding emergency motions for a stay of deportation or motions for expedited processing is readily available in the Board of Immigration Appeals Practice Manual, at Chapters 6.4 and 6.5. The emergency motions information is also covered in the Questions and Answers Regarding Proceedings Before the Board, Questions 28 and 99. The Board of Immigration Appeals Practice Manual and the Questions and Answers are easily accessible on EOIR's website at www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm. Further, EOIR addressed a similar question last year in the March 27, 2003 EOIR/AILA Liaison Meeting questions, available on EOIR's website at www.justice.gov/eoir/statspub/eoiraila0303.pdf (PDF), regarding the expiration of voluntary departure while a motion is pending at the Board.

16. We understand that due to the volume of cases, the Board's ability to react to time-sensitive situations, such as emergency stays, is limited. Where there is a meritorious, but extremely urgent motion (for example, a stay where a Respondent is in custody and scheduled to be removed within a few days), will the Board consider accepting faxed motions on a case-by-case basis? How quickly can the Board act in such a situation? Given DHS' more aggressive removal efforts at this time, has this issue of timing and the adjudication of emergency motions for stays been re-examined recently?

Response:

A request for a stay of removal must be made in writing and must comply with the general rules for filing motions. The safest course of action is to file a written request for a stay of deportation at the time the motion to reopen or reconsider is filed. The Board generally rules immediately on an emergency stay request, and as soon as possible on other requests for expedited handling. Instructions for filing emergency stay motions can be obtained by calling the Board at (703) 305-0699. The motion must be filed with the Clerk's Office according to the filing instructions provided in the Practice Manual. Motions may be accepted by fax only with permission by the Board. The Board continues to examine ways to improve the emergency stay process and the handling of motions to expedite.

17. Members report that some courts do not have the infrastructure to allow telephonic appearances by an attorney, when the court itself is already appearing remotely (via phone or video). In some remote locations, the limitations of the technology and/or court infrastructure present a distinct hardship, for example, requiring an attorney to travel three to four hours each way (to either the court or the respondent's facility) to participate in a ten-minute master calendar hearing. What is EOIR doing to expand its capacity to accommodate multiple remote parties?

Response:

The Office of the Chief Immigration Judge is always exploring the different technology options available to further enhance the hearing process. Due to budget constraints, however, the Office of the Chief Immigration Judge does not have plans at this time for large volume technology/hardware purchases. Representatives should be aware that technology can malfunction, and should always be prepared to appear at the court in-person. Therefore, representatives should always consider the need to appear on-site before accepting a case. Parties are reminded that the Immigration Judge has the discretion to regulate the form of the proceeding and may require that a party appear in person, pursuant to INA § 240(b)(2) and 8 C.F.R. § 1003.25.

18. It is common to discover--after having filed a motion for a custody hearing in the jurisdiction where the Respondent was arrested, but before DHS files an NTA with the court--that DHS has moved the individual to another court's jurisdiction. The regulations clearly state that the judge in the district in which the person is held has jurisdiction over the bond hearing even if no NTA has been filed. It would defeat the purpose of the regulation if the motion were made to "chase" the Respondent, and such delay prejudices the Respondent; further, such movement by DHS often takes the Respondent farther away from his home, resources and potential witnesses. Has EOIR provided any instruction regarding the initial court's jurisdiction over such cases?

Response:

No. Questions regarding jurisdiction and/or custody should be raised as the issue arises in the context of a particular case before the Immigration Courts or the Board. Moreover, any concerns regarding the moving of a detainee should be addressed directly to the Department of Homeland Security.

19. Members have reported that there appears to be an increased frequency in courts rescheduling previously scheduled master and individual hearing dates without checking with the attorney of record. This practice often results in scheduling conflicts that, in turn, require the further attention of both court and counsel.  Will EOIR provide guidance to the courts urging checking with counsel before sua sponte making changes to the hearing schedules?

Response:

The Immigration Court schedules cases according to its hearing time availability. As a matter of courtesy, if an attorney is present in the courtroom, the attorney will be asked about his or her availability. In addition, in some instances the Court will contact the parties to arrange a suitable hearing date. However, the Office of the Chief Immigration Judge does not require Immigration Court staff to personally contact attorneys to see if the new hearing time is convenient every time a case has to be rescheduled.

20. At the September 2003 meeting, EOIR stated that it was conducting a review of Local Operating Procedures nationwide in the context of Emergency Motions to Reopen or Stay and whether there should be model rules or regulations.  What are the conclusions from this review?

Response:

This is still under review.

21. In the last year, AILA has twice raised the problem of delays in getting the certified administrative record to the Courts of Appeals. Is the Board now current with the certification backlog?

Response:

The Board has had considerable success eliminating its certification backlog. However, it still experiences delays when, for example, records must be retrieved from Federal Record Centers, but the Board is working to remedy these delays.

22. Some courts continue to be heavily backlogged.  Arlington, for instance, has docketed Ohio cases it inherited for master calendars in 2005. What steps or new hires are being implemented to address this situation?

Response:

The Office of the Chief Immigration Judge is developing a plan to address the situation in Arlington. Please note, however, that at the time the Ohio cases were transferred from Detroit to Arlington in July of 2003, they were already docketed into 2005. As a result of the transfer an additional judge was added to Arlington, thus additional hearing time has been allocated to its docket. An increased use of TeleVideo is also being utilized.

23. When the immigration judge has denied relief but granted voluntary departure, and the alien appeals other issues in the case, in affirming the decision the Board typically reinstates voluntary departure for 30 days. Respondents are then forced to apply to ICE for any extension. Unfortunately, ICE often fails to timely act on requests for extension of voluntary departure or refuses to allow the full period originally granted at hearing. Where the immigration court has granted more than 30 days in its initial order, why does the Board not reinstate the original period of VD granted?

Response:

The Board continues to follow its precedent decision in Matter of Chouliaris, 16 I & N Dec. 168 (BIA 1977), which held that an additional 30 days voluntary departure time was reasonable considering the amount of time that elapsed during the pendency of the appeal, which usually exceeds the amount of voluntary departure time originally granted by the Immigration Judge. If a respondent wishes to challenge the period of voluntary departure reinstated by the Board, he or she should raise it in the context of cases before the Board. Concerns regarding the delay in processing voluntary departure extension requests should be directed to the Department of Homeland Security.

24. Where an alien has been inspected and admitted, DHS bears the burden of proof in establishing removability by clear and convincing evidence. Once removability has been established, it is the Respondent's burden to establish eligibility for the relief sought. Although removability is often conceded, more and more frequently, it is not, and Respondents have a right to require the government to meet its statutory burden before having to proceed with an application for relief. Unfortunately, certain courts routinely require applications and supporting documentation to be submitted (and fees paid) before the allegations and charges have been established; these same courts assert that any requests for relief will be deemed to have been abandoned if there is failure to comply. Although this practice is grounded in judicial efficiency, it places the horse before the cart at significant prejudice to the Respondent: in an adversarial process, requiring the filing of applications does not comport with due process under the INA. Will EOIR consider providing guidance to the immigration judges regarding the respective burdens of proof and correct order of these proceedings?

Response:

No. As previously stated in response to a March 7, 2002 AILA question, available on EOIR's website at www.justice.gov/eoir/statspub/eoiraila0203.htm, neither the statute nor the regulations require that an Immigration Judge rule on the issue of deportability prior to having the alien file an application for relief.

 

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