EOIR/AILA Liaison Meeting Agenda Questions

November 29, 2001

Immigrant Petitions in Proceedings

Respondents who enter into marriages after initiation of proceedings often are refused continuances due to the rebuttable presumption of fraud. While the majority of these petitions are approved, the combination of INS inaction and failure to continue a case leads to a cluttered BIA docket and increased administrative costs associated with adjudicating motions to remand.

1. I-130s in proceedings.
    

   Response: As previously stated in the last liaison meeting held on March 22, 2001, (See http://www.justice.gov/eoir/statspub/
   eoirailaMarch01.htm ), with respect to detained cases, the OCIJ and the INS have worked out an informal 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-130 or I-140 petitions. There has not yet been a final determination on how to address non-detained cases. The OCIJ is seeking a formal written agreement with the INS on the detained and non-detained cases, but to date, the INS has not responded to the OCIJ proposal. With respect to continuances, please refer to 8 C.F.R. 3.29 (2001) as well applicable case law, regarding the circumstances under which an Immigration Judge can grant a continuance.

    

   Response: The EOIR has taken an active role by seeking a formal written agreement with the INS. See response to question (1)(a) above. Beyond seeking a formal written agreement with INS, the EOIR does not plan to take any further steps in this regard.

    

   Response: The regulations located at 8 C.F.R. 3.31(c) state that filing deadlines may be set. However, the regulations do not permit Immigration Judges to establish deadlines for the INS to adjudicate petitions. Moreover, 8 C.F.R. 3.31(c) only relates to applications, related documents (and answers to these documents) which "are to be considered in a proceeding before an Immigration Judge." See 8 C.F.R. 3.31(a). Since Immigration Judges do not have jurisdiction to adjudicate or consider I-130 petitions, they therefore have no authority to order the INS to adjudicate the petitions by a specified deadline.

   1. What is the EOIR's current policy on the Immigration Judges' role in matters where the Respondent is awaiting adjudication of an immediate relative petition by the INS? Is there a uniform policy or guidelines on continuances?
   2. Would the EOIR consider taking a more active role in encouraging timely or expeditious processing by the INS?
   3. Could Immigration Judges be encouraged to use their authority to set deadlines under 8 C.F.R. 3.31(c) to force the INS to act on languishing petitions?
2. Marriage after initiation of proceedings.
    

   Response: An alien is not eligible to adjust his or her status until there is an approved I-130 petition. Thus, any determination relating to a marriage would be premature and not within the Immigration Judge's jurisdiction.

   Response:If the OCIJ and the INS enter into an agreement on the issue of the adjudication of I-130s (see response to question (1)), the OCIJ does not anticipate that the agreement would differentiate among the various circumstances under which an I-130 is filed.

   1. Would the EOIR consider encouraging Immigration Judges to make findings of facts on the bona fides of a relationship rather than summary denials of requests to continue based on the timing of the marriage?
   2. Would the EOIR insure that any policy regarding expediting I-130s in proceedings also cover "late" marriage cases?

Board and Court Procedures

Under what circumstances does a clerk have the authority to reject a tendered document before it reaches a Board Member or Immigration Judge? Are there internal guidelines for the clerical staff in making these decisions, and, if so, can AILA be furnished with a copy of these guidelines? If an attorney believes a document has been wrongfully rejected by a clerk, how can this be redressed?

Response: With respect to the Immigration Courts, clerks are authorized to reject any filings that do not comply with the regulations or local operating procedures (e.g., no certificate of service, incorrect number of copies, untimely, etc.). The Uniform Docketing System Manual, as well as various Operational Policy and Procedures Memoranda (http://www.justice.gov/eoir/efoia/ocij/OPPMLG2.htm), offer guidance to Immigration Court staff regarding when and how to accept filings. Many of these documents are available on the EOIR web site. The Uniform Docketing System Manual is not currently available on the EOIR website, but may be made available by making a FOIA request. Moreover, if an attorney believes a document has been wrongfully rejected, he or she can contact the appropriate Court Administrator.

The Board's clerical staff is authorized to reject documents that do not meet regulatory requirements such as documents lacking a certificate of service, documents not accompanied by a fee receipt, and briefs that are not timely filed. Following the regulations, and as authorized in the BIA Practice Manual, the Board does not accept such documents in any circumstance, and as such, there is no need for Board Member review. Please note that the clerical staff rejects untimely briefs out of hand only where there is no motion to accept the late-filed brief accompanying the document. Any such motion will be considered by a Board Member. Even where there is no justification given for the late brief, the Clerk's Office rejection notice informs the party that the brief may be resubmitted with a motion to accept it as late, which will be considered by a Board Member.

Response: The Board currently has a pending caseload of approximately 56,000 cases, and we now receive 28,000 to 30,000 additional appeals or motions each year. This may result in some delays in adjudication. The Board presently has an entire panel of Board Members and staff attorneys dedicated to adjudicating its oldest cases.

The Board presently issues briefing schedules soon after the transcript and the Immigration Judge's decision are available. Other than non-detained case appeals, it is the Board's goal to adjudicate all other appeals and motions filed on or after January 1, 2001, within 180 days of receipt, or within 180 days of receipt of the file with respect to appeals of INS decisions. A percentage of the more current non-detained case appeals are adjudicated more quickly than others, either because they fall within the categories of cases appropriate for single-Board Member review (streamlined decisions), such as appeals with unopposed motions to remand, or because they were adjudicated in order to provide guidance on current immigration issues.

Any party can request that review of a case before the Board be expedited by filing a motion to expedite with the Board. No fee is required for this motion. Both the INS and the private bar file such motions on occasion. The BIA Practice Manual contains guidelines for filing such expedited requests.

See BIA Practice Manual (Chapter 6.5 Expedite Requests).

Such certifications are needed, for example, for proof of residence status when an I-485 is approved but it takes the INS months to process and the individual has no evidence of lawful status, or when the individual goes to the Consulate and the Consulate requests certified orders of voluntary departure or proof that there was no record that the NTA was filed.

Response:The EOIR currently certifies records upon request by Federal agencies for appellate review. It is the duty of Federal litigators (e.g., the Office of Immigration Litigation, United States Attorneys) to provide copies of the administrative record below to the appellate court and to opposing counsel. Fed.R.App.P.17. Federal litigators are subject to sanctions if they fail to comply with this court directive.

Upon request, the EOIR, in accordance with the Freedom of Information Act (FOIA), provides complete and unredacted copies of records in two cases: (1) when the subject of the record is the requester; and (2) when a third-party request is accompanied by permission from the subject of the record. For further information regarding FOIA requests to the EOIR, please see http://www.justice.gov/eoir/press/newsinfo.htm. In addition, copies of some documents contained in Records of Proceedings may be obtained by requests made to individual Immigration Courts and the Board's Clerk's Office. Procedures regarding obtaining documents from the Board are outlined in the BIA Practice Manual. Where a legitimate need exists, the Office of the General Counsel has in the past and continues to provide affidavits attesting to the existence or nonexistence of certain documents (e.g., where an NTA has not been filed or where no appeal is pending).

The situations highlighted in AILA's question do not appear to require a certified copy of an order or a certified copy of the record. The INS and the Department of State should both accept EOIR orders at face value without the need for certification. The EOIR is open to further discussion on this issue regarding any additional needs immigration practitioners may have and is willing to address any issues regarding the recognition of EOIR's orders with other Federal entities.

Response: Immigration Judges do not have authority to order the INS to release an alien from shackles. That is the ultimate decision of the INS, which is responsible for the safety and security of the alien, since it has authority over the alien's detention. This authority rests with the INS.According to the INS Enforcement Standard for the Use of Restraints, the policy on the use of restraints for detainees is discretionary, based on various factors, and may vary from one location to another. As explained to the EOIR Office of Security by an INS Supervisory Detention Officer, INS Detention Officers and/or contract guards escorting detainees to immigration hearings do not relinquish their custodial responsibility to the Court and they are not obligated to remove restraints should an Immigration Judge request they do so. While it may appear that more latitude can be given when a hearing is conducted in a detained setting versus a regular Immigration Court, the final decision to remove a detainee's restraints rests with the INS representative and not the Immigration Court.

Response:The OCIJ is taking this issue under advisement and is examining this issue further. Therefore, the OCIJ is unable to provide a response at this time.

Response:This question was previously raised with the Assistant Chief Immigration Judge for Krome, who investigated the allegations, and found that the Krome Judges do not hold this position. Aliens are entitled to interpretation of all their hearings, whether they are represented or pro se. However, at the first master calendar hearing there may not be an interpreter available for an alien, because the Court does not have advance notice of what language the alien speaks or because a telephonic interpreter is not available. If an interpreter is not available, the case should be continued. Once the language is verified, the alien should have an interpreter available at all subsequent hearings.

3. Improper dismissals. Recently we have experienced the BIA issuing dismissals of appeals for failure to file a brief when, in fact, briefs have been filed. We have been instructed to file a motion to reconsider along with proof of the original filing (i.e., Federal Express receipt) and a filing fee of $110. Two questions emerge--
    

   Response: It is the Board of Immigration Appeal's (Board) practice to forward any correspondence, including a brief, to the case file as soon as it is received. The case files are tracked through bar coding and scanning to each new location, and inventories of our approximately 56,000 case files are undertaken quarterly to ensure the location of all files. In rare circumstances, the Board's staff will discover a brief or other piece of correspondence that was not associated with the file in a timely manner, and in such instances the Board will take action on its own motion, including reopening and issuing a new decision where appropriate.

   Response: The Board is taking this question under advisement and will examine the matter further.

   1. What is the EOIR doing to ensure that material sent to the BIA actually makes it to the file 100% of the time?
   2. Can the EOIR at least waive the fee requirement where the error is clearly that of the EOIR?
4. Rejection of documents. It is AILA's position that EOIR clerks are not empowered to reject a filing tendered on behalf of an alien in proceedings. However, clerks routinely do reject such filings.
5. Briefing Schedules. It is the experience of AILA attorneys that the BIA often takes a great deal of time to issue a decision. What are the factors that determine the time frames for issuance of a briefing schedule and ultimate decision? Can we request expedited handling of certain matters before the BIA? If so, how? Does the INS request matters to be expedited? Is there a mechanism to expedite unopposed requests to remand matters from the BIA?
6. Certified copies. Would the EOIR please consider expanding the circumstances under which it certifies EOIR records? The EOIR currently does certify records for appellate review. Every administrative, federal and state court provides a mechanism for record certification for members of the public. We encourage the EOIR to provide a mechanism where members of the public can obtain certified EOIR records.
7. Shackling of respondents. Can an Immigration Judge order that an alien be released from shackles during proceedings? Who has the ultimate decision-making authority, the Immigration Judge or the INS? Under what authority? Does it depend upon where the hearing is held (e.g., in an INS detention facility or a regular Immigration Court)?
8. Use of Internet in court. Do you agree that it is inappropriate for attorneys to be accessing the Internet during proceedings? A member complained that an INS Trial Attorney was using Immigration Court facilities to link up to the Internet while in Court and was cross-examining the applicant based upon information that he obtained in Court while on the Internet.
9. Interpreters. At the Krome Processing Center, it is the position of the Immigration Judges that Master Calendar proceedings are not required to be translated to detainees. In a recent case, the Immigration Court refused to provide a translator for a Master Calendar hearing for an Iraqi detainee stating that it was the attorney's obligation to provide the translation. The Immigration Court did not address who would provide a translation for pro se detainees. We believe that this determination is incorrect and request your office to provide instructions to the Immigration Courts, especially Krome, that interpreters are to be provided at Master Calendar hearings for represented and unrepresented detainees.
10. IJs in Detail Cities. Our members have reported various problems filing documents with, and contacting Immigration Judges in, detail cities where the courtrooms are on INS premises. For example, in some of these cities bond hearing requests must go through local INS personnel to get to the Immigration Judge. The INS personnel have been reported as being less than cooperative in many instances, with the result that it appears the INS has much easier access to the Immigration Judge than the respondents and their counsel. We realize that the EOIR would never intend such a result. What are the proper procedures for contacting or making last minute filings with an Immigration Judge in a detail city? Can these procedures (including appropriate phone numbers) be posted on your website for the detail cities?

    Response:Procedures for filing documents with the individual Immigration Courts (which are also applicable to detail courts) are determined by Local Operating Procedures (LOPs). The LOPs for each Immigration Court (including base cities) are available on the EOIR web site, as well as on the individual Immigration Court's web site. See http://www.justice.gov/eoir/sibpages/ICadr.htm. If this problem continues, please contact the appropriate Court Administrator.

September 11 Aftermath

11. Emergency closings. From time to time it becomes necessary for Federal offices, including the Immigration Courts, to close without prior notice due to unforeseen acts of nature or other emergent reasons.  This happened nationwide after September 11, and in Houston as a result of local flooding in June. While it is understood that such tragic circumstances cannot be foreseen, there is a great need for some means of advising the public when the Immigration Court(s) will reopen.  Knowing the Immigration Court is closed today but not whether it will reopen tomorrow, and having no reliable way to find out, creates tremendous uncertainty for those respondents, witnesses and attorneys scheduled to appear before the Immigration Courts, who must often travel great distances and prepare at length for a hearing that may not go forward.  Could the EOIR post current information concerning such closures on its website (by individual Immigration Court), or provide a toll-free hotline the public could call to know whether a particular court will be open on a particular day? 

    Response: If an attorney is concerned regarding the opening/closing of an Immigration Court, he or she can contact the Court the day of the hearing to verify if the Court will be open. Information regarding specific Immigration Courts is available to the public on the EOIR website, as well as each local Immigration Court's website. With respect to the closings on September 11, the OCIJ provided updated information on the website. The Immigration Courts make every effort to contact parties whenever possible; however, unforeseen emergencies do occur.

12. Records lost in WTC attack. Does the EOIR have the capacity to generate a files list by attorney? For attorneys who lost their offices and records in the World Trade Center, can the EOIR assist in reconstructing the case load? Additionally, is it possible for the attorney to provide at his/her change of address to the EOIR once, so that all future correspondence will be sent to the attorney's correct address?

    Response: Although the OCIJ and the Board do have the capacity to generate lists of cases by attorney of record, they do not have the resources to do this. Rather, the OCIJ and the Board view this as the responsibility of the individual attorney to keep track of his or her cases.

    In light of the WTC tragedies, however, the OCIJ and the Board will assist attorneys -- who can establish that his or her office or records have been destroyed or are inaccessible as a result of the September 11^th attacks -- in identifying those cases in which he or she is the attorney of record. Attorneys requesting this information must submit a letter to the appropriate Court Administrator, or the Chief Clerk of the Board, requesting a list of all the cases in which he or she is the attorney of record. The letter must also contain appropriate documentation or evidence establishing that the attorney's records or office have been destroyed or are inaccessible as a result of the September 11^th attacks.

    Once the attorney has a list of his or her cases, if he or she does not have an extraordinary number of cases and can demonstrate immediate need for reconstructed files, requests for such files may be made directly with the Immigration Court. In instances where an immediate need is not demonstrated or where an extraordinary number of reconstructed case files are requested, negatively impacting the Immigration Court's operations, attorneys should file a FOIA request.

    The Board unfortunately does not have the resources to promptly respond to requests for all of the records of proceedings involving attorneys whose offices may have been affected by the World Trade Center attack. For this reason, affected attorneys wishing to reconstruct their files should file a FOIA request with EOIR's Office of the General Counsel, which has a unit dedicated to reviewing, and where appropriate, reconstructing files as promptly as possible. The FOIA unit will also consider requests to expedite based on exigent circumstances.

13. Access to buildings. The EOIR administrators have informed local practitioners that due to the September 11 attacks, there will be no access for Respondents without government issued identification, and that applicants of "certain" nationalities will be refused admission. We know of some Courts announcing a "one continuance only" policy with regard to the ID issue. Further, some courts have relocated hearing space to inadequate facilities based on security grounds. Is there a uniform policy from the EOIR regarding such matters? What provisions are being made for Respondents who cannot obtain such identification?

    Response: The heightened level of security implemented since the September 11^th attacks has not significantly restricted Respondents from accessing Federal facilities. Immigration Courts are located in a variety of facilities including Federal buildings, commercial office buildings, and Federal, State, or local detention facilities. The organization responsible for building security in each type of facility ultimately decides under what circumstances the public will have access to the buildings.For example, in Federal buildings and detention facilities, this could be the Federal Protective Service, the United States Marshals Service, the INS or the BOP. Other responsible organizations could include State or local detention agencies, or the landlord of the commercial building.

    Court Administrators usually work with building security (Federal Protective Service) to ensure that Respondents have access to Immigration Courts in Federal facilities. In many cases, it has been agreed that Respondents not having government or photo identification may use their 'Notice to Appear' to establish their bona-fides to be at the Court. With the exception of undergoing enhanced security screening, Respondents are not restricted from visiting Immigration Courts located in commercial buildings. The EOIR is unaware of any policy that restricts applicants of "certain" nationalities from being refused admission to any Immigration Court, whether in a Federal or commercial building, or of any court relocating hearing space to inadequate facilities based upon security grounds.

    Chief Immigration Judge Creppy has advised all the Immigration Court personnel, including Immigration Judges, to be sensitive to situations where there have been resulting delays as a result of the September 11^th attacks and subsequent heightened security, including encouraging the use of discretionary tools such as continuances when the situation warrants it.

14. Closed Removal Hearings.  It has come to our attention that an apparently new procedure -- perhaps called "certified removal proceedings" or "special removal proceedings"-- is being employed for certain individuals in connection with the investigations following September 11.  The distinguishing characteristics of these proceedings are that no information is disclosed on the "docket line" about time and place of hearings, and the public and press are excluded from the hearings.  Another hallmark of these proceedings is the apparent universal unwillingness or inability of EOIR employees to discuss any details. Also, some Immigration Judges are issuing "gag orders," barring participants from discussing the proceedings outside the Court.
    1. Under what authority are these new, restricted access proceedings conducted?
    2. Under what authority are "gag orders" being issued?
    3. Are there any other differences between traditional removal proceedings and the "certified/special" proceedings?
    4. What class or classes of individuals are subject to these new proceedings? 
     

    Response:The EOIR has provided to AILA the list of INS detainees which was released on November 26, 2001, and a copy of the instructions from the Chief Immigration Judge to the Immigration Judges regarding the procedures in these cases.

15. Going off the record. The issue was raised previously about when Immigration Judges go on and off the record (i.e., are recording the proceedings or not). The response was that "any off the record statements can be memorialized when the proceeding goes back on the record." What should an attorney do if the Immigration Judge refuses to go on the record? What about when the Immigration Judge goes off the record and the attorney believes the discussion should be on the record? When questioning the Immigration Judges as to whether the proceedings are being recorded, our experience has been that this upsets some Judges. How should an attorney confirm the proceedings are being recorded without upsetting the Immigration Judge?

    Response: If an attorney wishes to know if a conversation is "on the record", he or she should ask the Immigration Judge. The attorney may request that the Immigration Judge record a conversation, or the attorney may attempt to memorialize the conversation after the parties go back on the record.

16. Appearance of bias. In a number of cases, we have witnessed Immigration Judges urging INS attorneys to add additional removal charges. In one recent instance in Miami, the Immigration Judge advised the INS attorney, at a Master Calendar Hearing, where the alien was pro se, that the attorney should add the additional charge of intending immigrant in the event the fraud charge could not be proven. Thereafter, the Judge provided the government with an unrequested continuance to lodge an additional charge on the NTA. This conduct is unbecoming of a Judge and certainly does not further the avoidance of the appearance of impropriety. What training does the EOIR offer about judicial conduct?

    Response: Every year at the Immigration Judges' conference, the Immigration Judges are given a session on judicial conduct and ethics. Additionally, all Immigration Judges have received a copy of the Ethics Manual containing guidance on these issues which was jointly drafted by representatives from OPR, EOIR, and the Department's Ethics Office. See http://www.justice.gov/eoir/statspub.htm . If an attorney is concerned regarding the conduct of a particular Immigration Judge, he or she should contact the Immigration Judge's Assistant Chief Immigration Judge and/or the Office of Professional Responsibility (OPR) of the Department of Justice. Information about regarding OPR is available on the Department of Justice website, http://www.justice.gov.

Disciplinary Rules

17. Suspensions from practice. If a practitioner is licensed by the highest court of a state, and also admitted to practice before several Federal courts, does the automatic, reciprocal suspension provided in the EOIR regulations (8 C.F.R. 3.103) apply where the practitioner has been temporarily suspended by only ONE court, and not the state court that issued the practitioner's license?  If, for example, the practitioner is licensed as an attorney in Virginia and has been admitted to practice before the Federal District Courts in Virginia, Maryland and the District of Columbia as well as the Fourth Circuit Court of Appeals, it seems unreasonably harsh for him or her to be immediately and summarily barred from all practice before the EOIR and the INS just because he or she has been suspended for six months by one of the district courts for failing to appear at a hearing.  The practitioner would still be in good standing with the court that issued his or her license (and several others) and would have committed no misconduct before the EOIR or the INS. 

    Response: The regulations permit the discipline of a practitioner "who has been disbarred or suspended on an interim or final basis by, or has resigned with an admission of misconduct from, the highest court of any state, possession, territory, commonwealth, or the District of Columbia, or any Federal court." Thus, discipline by the licensing state authority is not a prerequisite for the issuance of a Notice of Intent to Discipline. Professional misconduct before a Federal court is of no less concern than misconduct before a state or administrative court. The fact that a practitioner's misconduct did not occur in a proceeding before the EOIR or the INS is not relevant; the only requirement is that the misconduct violates one of the grounds for discipline.

    However, the EOIR Office of the General Counsel has the discretion to review each case individually and determine, based on the type of misconduct that has occurred, whether or not to pursue reciprocal discipline. In a situation where a Federal court takes disciplinary action prior to the state bar initiating disciplinary proceedings, the EOIR would not want to be required to wait until after the state had brought its own action to completion before the EOIR could move forward with its own case. Likewise, a state bar may also decide not to pursue a disciplinary case based on a Federal court disciplinary order - that decision would be considered in the Office of the General Counsel's exercise of discretion.

Notices to Appear

18. Service upon Respondents.  The BIA recently emphasized in Matter of G-Y-R- the importance of service of the Notice to Appear (NTA) and the obligations it imposes on respondents. As you know, we have been complaining about delays between the service of an NTA and its subsequent filing by INS with the Immigration Court, a matter not discussed in Matter of G-Y-R-.  We have suggested that a requirement that the charging document be served (or possibly re-served) concurrently with its filing would avoid many of the problems encountered.  Coincidently, it has recently been noted that the regulations prior to 1998, at 8 C.F.R. 3.14, actually did require service upon the respondent pursuant to 3.32 "when a charging document is filed."  The wording of 3.14 was changed slightly thereafter to its present form, which no longer clearly specifies concurrent service and filing.  Why was the wording of the regulation changed, and would EOIR consider changing it back? 

    Response: Any reasoning or explanation behind this regulatory change would be in the supplementary information to the regulation which was published in the Federal Register at the time the regulation was amended. At 62 Fed. Reg. 10322-23, there is a reference to the INS's ability to control when charging documents are filed and to manage its resources. The public, including AILA, had an opportunity to submit comments regarding this change at the time the change was proposed.

19. Filing of NTAs. Delays in the filing of the NTA, the substantive legal implications of these delays, the obligations imposed on the alien upon the filing of the Notice to Appear and the penalties imposed on the alien if the alien does not attend proceedings require refinement of the procedures for filing NTA.
    1. The regulations prior to 1998, at 8 C.F.R. 3.14 specifically required service upon the respondent pursuant to section 3.32 "when a charging document is filed." Thereafter, the wording under section 3.14 was changed slightly so that it is no longer clear that concurrent service and filing are required. Do you agree that 8 C.F.R. 3.32 requires simultaneous service of all documents including the NTA since this interpretation would be in accord with ethical mandates requiring simultaneous service of all documents and since the simultaneous service of a NTA notifies an alien that the INS has decided to proceed invoking the requirement that the alien notify the Court within 5 days of any change in address as required in 8 C.F.R. 3.15?

       Response: The EOIR is unable to provide a response to this question, since the agency does not provide advisory opinions regarding regulatory provisions.

    2. If you do not agree with item (a), would the EOIR consider promulgating a regulation providing a 120-day time frame during which the NTA must be filed with the Immigration Court after service on the alien? Failure to file the NTA within this time frame would mandate re-service of the document on the alien. This regulation, patterned after the Federal Rules of Civil Procedure, would not prejudice the government as the INS should not serve an NTA on an alien until it is ready to proceed. Should the INS determine that it cannot proceed in a case 120 days after the service of the charging document, the INS would be prohibited from filing the document until it re-served the document on the alien requiring the INS to verify that the correct address of the alien is contained on the NTA and that the charges are not moot. Such a regulation establishes a reasonable time frame for proceeding after the service of an NTA and permits the alien to have some predictability as to when to expect proceedings to commence. Currently, aliens have to check with the Immigration Court an infinite amount of time to determine if a charging document has been filed with the Immigration Court.

       Response: It is within the prosecutorial discretion of the INS to determine the appropriate time to file a charging document with the Immigration Court. The EOIR cannot comment on INS policy and procedures regarding the filing of charging documents with the Immigration Courts.

    3. If you do not agree to item (a) above, do you agree that any altered NTA (including changes to the respondent's address) should be re-served on the alien before it is filed in Immigration Court since the certificate of service would only cover the NTA that was actually served on the alien and not any subsequent deletions, additions or amendments to it? Please note that this would comply with ethical mandates and allow the alien to verify that the INS received and processed any address correction information.

       Response: Please see EOIR's response to question 19(b) above. In addition, the EOIR notes that 8 C.F.R. 3.15(d) requires the alien to notify the Immigration Court if the charging document he or she receives does not contain an address or contains an incorrect address.

    4. Would the EOIR adopt a regulation disallowing the filing of an NTA that was issued more than 12 months earlier? Such a regulation would not prejudice the INS. Should the INS opt to proceed on a charging document over 12 months old, the INS could re-issue and re-serve the charging document after re-verifying the charges and the alien's address. The establishment of a limitation on the age on a NTA would facilitate better notice to attorneys and aliens as they would know the INS could not proceed on a charging document that is more than one year old. Moreover, an alien or the attorney would only be required to check the Court recording to ascertain whether a case has been filed for a one year period. After that time, the parties could assume, absent re-issuance of the charging document that the INS decided not to proceed in the matter.

       Response: Any requests for amendment of the regulations to prevent the filing of stale NTAs should be directed to the INS, which both issues the NTA and has the prosecutorial discretion to determine when to file the NTA with the Immigration Court.

Motions

20. Motions under St. Cyr. Hundreds, perhaps thousands, of people will be directly affected by the Supreme Court's decision in INS v. St. Cyr. Most of them are currently in proceedings, either at the Immigration Judge level or on appeal to the BIA. Some are involved in cases pending in the Federal courts. Others have final orders of removal outstanding against them, but have not yet been removed. Still others have been removed and are outside the United States. Will the EOIR consider modifying its regulations to accommodate motions to reopen or reconsider involving St. Cyr issues? Given that the St. Cyr decision results in a substantive change in the law, announced by the highest component of the Judiciary (a co-equal branch of the federal government), it would seem fair to exempt St. Cyr-related motions from the current time and number limitations and fee requirements. Additionally, provision should be made for motions made from abroad by respondents who have already been removed.

    Response: A regulation in response to the Supreme Court decision in INS v. St. Cyr is currently being developed, therefore the EOIR is unable to comment regarding any specific aspects of that regulation. Currently, in response to the Supreme Court decision, the Board is reopening proceedings on its own motion and remanding cases to the Immigration Judge for consideration of an application for section 212(c) relief when it appears the applicant has remained in the country and was eligible at the time of the final administrative order under the rules set forth in the St. Cyr decision.

21. Fees for joint motions. Why does a joint motion to reopen require a fee when government attorneys are not required to pay fees for motions?

    Response: Under the current regulations, general motions to reopen, even if they are jointly filed, require a fee, under the theory that the case has already been adjudicated and it is an administrative burden (with added costs) to the Federal government to reopen the case. A fee is required from the Respondent because it is the individual or his or her representative who is physically filing the motion and who is seeking a benefit or relief that accrues to the individual, and not the INS.

22. Pro Se Motions to Change Venue. Many unsophisticated pro se Respondents who move either immediately prior to, or shortly after, initiation of proceedings are unaware that they may request a change of venue, that a change of address may lead to a sua sponte change of venue or of the requirements for a request to change venue. Unaware of these procedures, relocated Respondents often either travel at great expense to attend a hearing or, having informed the Court of their new residence and desire to appear at a more convenient location, run the risk of receiving an in absentia order. Conversely, it is inappropriate to expect the EOIR to treat all changes of address as a pro se Motion to Change Venue.

    Will EOIR consider implementing procedures to inform and protect these Respondents by responding to venue-triggering changes of address with information on the availability and requirements for a properly filed Motion to Change Venue?

    Response: The EOIR is discussing the possibility of revising the Change of Address Forms to include a reminder to aliens that filing the Change of Address form does not automatically change venue, and to inform the alien of the requirements and procedures to follow in order to request a change of venue.

Miscellaneous

23. Representation by OIL. Who does the Office of Immigration Litigation in DOJ represent before the courts, the INS or the EOIR/BIA?  If INS, under what circumstances, if any, does OIL represent the EOIR?

    Response: The Office of Immigration Litigation (OIL) has both affirmative and defensive litigation responsibilities. It represents the INS, the Department of State, and other agencies (including the EOIR) that regulate the movement of aliens across and within the borders of the United States.

    Although they are separate entities, both the EOIR and the INS are part of the Department of Justice and therefore are subject to the ultimate authority of the Attorney General. For example, because the Attorney General has expressly delegated to the Board the authority to exercise such discretion and authority that has been conferred upon him by law, a decision issued by the Board is regarded as a decision by the Attorney General himself, and is binding on all officers and employees of the INS, except as it may be modified or overruled by the Attorney General or the Board. See 8 C.F.R. 3.1(d)(1), (g) (2001). Similarly, regulations promulgated by the Department are binding on all Department entities, including the INS, the Board, and OIL. In sum, because both the INS and EOIR ultimately represent the interests and carry out the tasks of the Attorney General, OIL represents both the EOIR and INS in Federal Court as delegates of the Attorney General.

24. Accredited organizations. We know that local Immigration Courts maintain lists of organizations and representatives accredited by the BIA for representation before the Courts and the INS.  Is there a current, centralized list of all accredited organizations and individuals that the public can readily check?  Could it be posted on your website?

    Response: Yes. The current "Recognition and Accreditation Roster" is available on the EOIR internet website at : http://www.justice.gov/eoir/ra/raroster.htm. This list is updated quarterly and contains alphabetical listings of both recognized organizations and accredited individuals.

25. Statistical information. We are aware that the EOIR maintains statistics on the numbers of asylum grants and denials. Are statistics also collected as to the grounds of denial (e.g., one-year deadline, "frivolous", etc.)? If not, would it be possible to do so? How can we obtain this information?

    Response: The EOIR's database does not track the grounds for denial of asylum applications. Currently, there are no plans to capture and track this information.

26. Electronic Filing and Access. What is the current status of the EOIR's efforts on electronic filing and access to information over the Internet?

    Response: The EOIR is holding preliminary meetings internally to discuss the feasibility of implementing electronic filing at EOIR. In early 2002, the EOIR plans to meet with outside parties to discuss this issue.