September 26, 2002
Adjustment of Status in Proceedings
- Despite the Board's interest in clearing the backlog, many cases presenting "simple" remand issues (approved I-130 or I-140 Immigrant Petitions with prima facie adjustable Respondents, unopposed or joint motions, etc...) languish for months without action. While we understand each case is unique, what length of time is reasonable to expect for adjudication of such a motion? Is there a time period after which any follow up action is appropriate? What action would be considered appropriate?
RESPONSE: Although individual cases to the contrary may have been brought to AILA's attention, the Board does successfully treat motions to reopen on an expedited basis, and motions to remand in case appeals are also expedited, if appropriate, when brought to the Board's attention. A party may file a motion to expedite with the Board. Please be aware that for case appeals any motion to remand may only be adjudicated after briefing schedules have expired. Unopposed motions are already subject to streamlining, and under the new regulation most meritorious motions to remand will qualify for a single-member order that the Board is required to adjudicate within 90 days of completion of the record.
- Do you agree that 8 CFR 1.1(q) allows an individual paroled into the US prior to April 1, 1997 to apply for adjustment of status in removal proceedings? That section states that an "arriving alien" does not include individuals who were paroled prior to April 1, 1997.
RESPONSE: The legal issue of whether an individual paroled into the United States before April 1, 1997 may apply for adjustment of status in removal proceedings can only be addressed by the Immigration Court and the Board in the context of a case adjudication.
- There appears to be some confusion on the part of the Immigration Judges in adjustment of status cases before EOIR in determining when to accept medical reports properly filed with the INS, and when to require that new medicals be obtained. INS Headquarters has already stated (twice) that medicals are generally considered valid if filed with INS within one year of the report being issued. Medicals filed with INS within one year of the medical report are considered valid until the matter is adjudicated, even if the adjudication takes place more than one year later. Please see the attached Septeber 24, 1998 INS Adjudications/AILA Liaison Meeting Minutes answer to question numbered 9, which was approved by INS, which discusses the validitiy of medical exams for adjustment purposes.
Would you be willing to provide uniform instructions for all judges regarding this matter?
RESPONSE: The Office of the Chief Immigration Judge (OCIJ) is not aware of this being a problem or major concern with the Immigration Court. However, if AILA would like to provide a copy of the INS response, we can make it available to the Immigration Judges.
Immigration Court Procedures
- There are continuing problems with interpreters in immigration courts. Some judges insist on going ahead with interpreters even though the attorney instists that the interpreter speaks the wrong dialect or language. This sometimes happens even when the attorney requests the specific dialect at the master calendar hearing and reminds the judge's clerk before the hearing. For example, if a respondent is from Albania, an interpreter from Yugoslavia or Macedonia will speak a very different dialect. What can be done to prevent these kinds of problems from occurring?
RESPONSE: If an attorney continues to object to the dialect or language of an interpreter, the attorney must make the objection on the record and bring the issue on appeal to the Board of Immigration Appeals. A similar question was previously raised at the November 29, 2001 AILA/EOIR liaison meeting. Please refer to the notes from that meeting for additional information. See EOIR/AILA Liaison Meeting - Q & A's, November 29, 2001.
- As attorneys we enter our appearance on form EOIR-28. In law firms with more than one attorney the flexibility - especially for Master Calendar Hearings and Bond Hearings - of having another attorney handle the matter is important. Some IJ's have no problems with this. Others require a new EOIR-28 be filed by the attorney appearing. This is extra paperwork, but not really a big deal. Recently one IJ barred an entire law firm from telephonic hearings to a remote detention facility because the attorney at the firm who filed the EOIR-28 was not present to handle the matter, but another attorney at the same firm and phone number was. Can you give our members guidance on the need for each attorney to personally file an EOIR-28? Why is an entry of appearance not transferable to other attorneys at a law firm when the client hires the firm and understands that a particular attorney may or may not be with him in court?
RESPONSE: The regulations at 8 C.F.R. § 292.1(a) list the categories of persons who may represent individuals before EOIR and INS. This list includes "an attorney as defined in § 1.1(f)" but does not provide for a "law firm." Every attorney, must file a Form EOIR-28, whenever he/she represents an alien in proceedings before an Immigration Judge. With respect to withdrawal or substitution of counsel, the reuglations at 8 C.F.R. § 3.17 make clear that this is permitted only upon oral or written motion to the immigration judge. The local operating procedures of some courts provide that a formal written motion for substitution of counsel is not necessary when the attorneys are members of the same law firm. This local operating procedure is authorized by some courts as a matter of discretion. However, attorneys from the same law firm are still required to make an oral motion and file a new Form EOIR-28. For those courts that have chosen not to implement this local operating procedure, attorneys from the same law firm must get a ruling on their motion for substituion of counsel in each and every case.
- Some immigration courts provide a list of private attorneys, in addition to non-profit agencies, who may be available to assist respondents in proceedings. Under what circumstances are private attorneys included on such a list and what are the criteria for determining which private attorneys will be included?
RESPONSE: The regulations outlined in 8 C.F.R. § 3.61 et seq. outline the requirements for placement on the List of Free Legal Services Providers.
- Under what circumstances may a clerk reject a document presented for filing? Listed below are some areas of concern that have been raised by our members.
- May a clerk reject an NTA presented by INS that doesn't comply with the regulatory requirements (failure to include full address, failure to indicate proper court, failure to include zip code, pen & ink notations handwritten onto EOIR copy and not written onto aliean copy)?
RESPONSE: No, by regulation, jurisdication vests with the court when the NTA is filed by the INS. Omission of certain information by INS in the NTA does not provide the alien with any substantive or procedural rights and therefore may not be rejected by a clerk on that basis.
- May a clerk conclude that a document presented by respondent's attorney doesn't comply with the local rules? (For example, the filing consists of one, lengthy document, and the clerk insists that it must be tabbed.) Do you agree that the clerk should accept the document, and let the IJ decide whether it comports with local rules?
RESPONSE: Yes, a clerk may conclude that a document does not comply with the local rules and reject the document. Questions regarding the rejection of documents by clerks were answered in the November 29, 2001 AILA/EOIR liaison meeting. Please refer to the the notes from that meeting for additional information. See www.justice.gov/eoir/statspub/eoiraila0111.htm
- May a clerk not accept an I-589 filed before a Master Calendar date, when it is being filed to comply with the one-year deadline?
RESPONSE: Form I-589 may only be filed in open court. See OPPM-00-1. Clerks may not accept them at the window.
- May a clerk refuse to accept a brief because it is being filed late? Do you agree that the clerk should accept the document, and let the IJ decide whether to accept the late filing?
RESPONSE: Yes. All late briefs should be filed along with an appropriate motiion to file the brief out-of-time. Failure to timely file a brief may result in rejection by the clerk.
Also, please refer to the notes from the November 29, 2001 AILA/EOIR liaison meeting for additional information. See www.justice.gov/eoir/statspub/eoiraila0111.htm
- Where a clerk mistakenly date-stamps and documents, and then returns it to the presenter (either the INS or counsel) without keeping a copy for EOIR, do you agree that the document is NOT considered filed?
RESPONSE: Yes, the document is not considered filed if the date stamp is cancelled by an "X".
- Some attorneys report that aliens in custody are asked to sign some type of document stipulating to their removability and the entry of a stipulated removal order. INA 240(d) In practice, this means that the alien never appears before an IJ. In many cases, the alien signs the removal order without the assistance of counsel. Lawful permanent residents as well as undocumented individuals have signed these stipulations. Are there national procedures in place for IJ's to enter stipulated removal orders? Does EOIR have any internal procedures instructing IJ's on this statutory provision?
RESPONSE: Yes. See 8 C.F.R. § 3.25(b).
- The regulations provide an automatic stay of deportation while a motion to reopen an in absentia order in deportation or removal proceedings is pending before an Immigration Judge. 8 CFR § 3.23(b)(4)(ii). The Board has held that the automatic stay continues during an appeal to the BIA from the denial of such a motion to reopen in deportation proceedings under former INA §242B. Matter of Rivera-Claros, 21 I&N Dec. 232 (BIA 1996).
RESPONSE: The legal issue of whether there is an automatic stay of removal during an appeal to the Board of an IJ denial of a motion to reescind an inabsentia order in removal proceedings can only be addressed by the Board in the context of a case adjudication.
- Wouldn't the same rationale employed in Matter of Rivera-Claros mandate exactly the same result in removal proceedings? Does EOIR agree that the automatic stay of removal continues during an appeal to the BIA from the denial of a motion to reopen an in absentia order entered in removal proceedings?
- Wouldn't the same rationale employed in Matter of Rivera-Claros mandate exactly the same result in removal proceedings? Does EOIR agree that the automatic stay of removal continues during an appeal to the BIA from the denial of a motion to reopen an in absentia order entered in removal proceedings?
RESPONSE: If INS officials in some districts believe that there is no automatic stay and it appears removal is imminent, counsel for the alien should file an emergency request for a stay with the Board under the usual procedures for stay requests. This includes ensuring that the appeal of the in absentia motion denial has been filed with the Clerk's Office, and calling the Board's stay line at 703-305-0699. Calling is imperative. It is not sufficient to merely associate a written request for a stay with the materials filed with the Clerk's Office.
- The BIA has traditionally been fairly strict on emergency stay requests. Would the standards be more lenient in cases involving appeals from motions to reopen in absentia removal orders?
RESPONSE: The Board is not aware of any basis in the regulations or in case precedent for emergency stay requests to be treated under different standards solely on the basis of the category of motion involved.
- Cognizance is taken of the new BIA "case management" regulations published on August 26. We assume from the published comments that the reduction of the initial briefing time from 30 to 21 days will have no effect upon requests for extensions. Over the past two or three years, it has been understood that a single request for a 21 day extension would be granted for virtually any legitimate cause. Can our members assume the same will hold true under the new rules?
RESPONSE: The Board’s current policy of granting 21-day briefing extensions for legitimate cause will continue.
- Our members have noticed a large number of BIA appeals being decided in one paragraph summary decisions even before the adoption of the final rules restructuring the role of the BIA. Some of these cases present complex legal issues and intricate factual determinations.
RESPONSE: As was allowed under the regulations existing before the new BIA Reform Regulation, the Board expanded the use of a summary affirmance without opinion to all categories of appeals provided that the regulatory criteria for such orders were met. This accounts for the increase in these types of orders seen by AILA. All cases at the Board under the previous regulation are subject to de novo review, but summary affirmances are nevertheless warranted where the regulatory standards are met. This will continue under the new regulation.
The guidance to the Board Members as to what is appropriate for summary affirmance is provided by the regulations. The use of a summary affirmance without opinion does not signify any less thoroughness in the Board’s review. It represents a determination by the Board that the IJ decision and the reasoning underlying it are sufficient under the regulation to represent the final agency decision. The appropriateness of a summary affirmance is not determined by the structure or format of an appeal or a brief, but by the sufficiency of the Immigration Judge decision in light of the arguments made on appeal.
- Now that the proposed regulations have become final, should we expect this trend to continue, or was this more a mechanism to deal with past backlog?
- Are there guidelines that the BIA can tell our members in structuring briefs and arguments to avoid summary decisions and yield more thoughtful opinions on what we believe are substantial issues?
- What, if anything, has the BIA done to ensure consistency among Board members as to the propriety of entering summary affirmances so that there will not be wide variation in the disposal of these cases?
- In at least one case, the Service filed an appeal from the grant of an alien's case on a legal issue. The 3-member panel dismissed the appeal. The Service filed a Motion to Reconsider, which was assigned to a different panel and which granted the Service Motion to Reconsider, ordering the alien deported. This constitutes one panel overruling another. Is this proper? Should not the matter have gone to the Board en banc? Does the Board provide for some mechanism so that the same panel passes on motions to reconsider to avoid this problem?
RESPONSE: Under current Board policy and as allowed for under the regulations, all motions to reconsider are sent to the Streamlining center for adjudication by the Streamlining panel. Motions to reconsider three-Board-Member decisions that are rejected by the Streamlining panel will be returned to the original Board Members for adjudication if the original panel members are still available. If any of the original Board Members is not available, the case will be randomly assigned to one of the merits panels. If a Streamlining panel rejects a motion to reconsider one of its own three-vote orders, the motion will be forwarded to one of the merits panels for adjudication. Motions to reconsider single-Board Member decisions that are rejected by the Streamlining panel will be forwarded to one of the merits panels for adjudication.
There is nothing intrinsically wrong with one panel granting a motion to reconsider a decision of another panel where the regulatory criteria for reconsideration have been met. En banc review is not necessarily required.
- Where Respondent appeals an Immigration Judge's denial of a Motion to Reopen or Reconsider, the Board routinely notes in briefing schedules that no transcript will be produced. While some cases may be adequately reviewed without reference to the record of proceedings, the vast majority of appeals cannot be properly adjudicated without reference to the underlying proceedings. We note that although many practitioners reported submitting briefs according to the schedule while requesting a transcript, none reported a transcript having been produced. Are transcripts ever generated in MTR appeals? What is the correct procedure to request or obtain a transcript in such a case?
RESPONSE: Transcripts are not normally prepared for an appeal of Immigration Judge denials of motions. Requests for transcripts merely included as part of the party’s brief will not result in a transcript unless Board Member review of the appeal results in a determination that a transcript is needed as part of the record for adjudication. In these circumstances the Board will direct that a transcript be made part of the record and be provided to the parties and that a new briefing schedule be set.
As provided in the Board Practice Manual, if a party desires a transcript, particularly before briefing has been set or has expired, he or she should send correspondence with a cover page labeled: “REQUEST FOR TRANSCRIPTION.” The correspondence should briefly state the reasons for the request. A sample cover letter may be found in Appendix F of the Manual. Please be advised that the request for transcription does not affect the briefing schedule. Parties are still required to meet the briefing deadline.
- It has come to AILA's attention that the Board has a backlog of approximately 600 cases awaiting copying of the administrative record to file with various federal courts of appeal in connection with petitions for review. As a result, the administrative record often is not filed for months after the petition for review is filed. This results in significant delays in the appeal process that are of concern especially with detained individuals. Is this 600 case backlog a correct number? Does EOIR have any plans to address this backlog? Can an attorney call to find out when the administrative record will be prepared and filed?
RESPONSE: The Board does receive a significant amount of requests from the Office of Immigration Litigation (OIL) to certify the Record of Proceeding (ROP) due to a quintupling of the number of requests OIL received from federal courts as a result of increased litigation. The Board has addressed this situation with significant increases in staff and other resources devoted to certification. The requests before the Board do not represent a backlog and are relatively recent. For example, there are presently no requests from OIL pending before the Board older than one month. Please note that EOIR is not responsible for filing the certified ROPs with the court. Any calls for more information are more appropriately directed to OIL.
IJ Behavior Issues
RESPONSE: EOIR will consider all complaints regarding the conduct of Immigration Judges filed with the OCIJ. In general however, OPR prefers that agencies look into matters first as much as possible, especially if it is a matter that can be resolved more quickly by the agency. Additionally, if a party is not satisfied with the outcome of a complaint filed with EOIR, they can always file a complaint with OPR at that time. Please refer to the notes from the March 7, 2002 AILA/EOIR liaison meeting for further information regarding this subject.
- We continue to receive numerous reports from members complaining about injudicious conduct by various IJ's (frequently, the same ones), along with repeated concerns that "nothing can be done," "nobody cares," or similar expressions of discouragement as to the likelihood of any recourse. To follow up on our discussions regarding complaints filed against IJ's:
- Has any action (formal or informal) been taken against any IJ within the past two years as the result of a complaint filed with the Office of the Chief IJ?
- Has OCIJ had occasion to informally discuss specific complaints with the subject IJ within the same time period?
- We understand that, in addition to or as an alternative to filing complaints with OCIJ, complaints may be filed against IJ's with the Department's Office of Professional Responsibility (OPR).
- What types of complaints, if any, would EOIR prefer to see filed with OPR in the first instance?
- What differences, if any, are there between the handling of complaints filed with OPR and those filed with OCIJ? How are these complaints investigated by the two different offices respectively? Is one more likely to act than the other? Does the range of possible remedies vary at all?
- In reply to past liaison questions concerning IJ's setting filing deadlines more onerous than those set forth in the Immigration Court's Local Operating Procedures, OCIJ has indicated that IJ's are not tied to the LOP's and may set filing deadlines within their discretion as appropriate in each case, BUT that such departures from the LOP requirements should be exceptions rather than the rule. Some IJ's, however, routinely require supporting documentation to be filed weeks or even months before the LOP filing deadlines.
- Has OCIJ communicated the "exception rather than the rule" policy to its IJ's?
RESPONSE: No. There is a clear understanding that the Local Rules govern. However, an Immigration Judge can, on a case by case basis, change filing requirements.
- Would such repeated behavior by an IJ be of a nature that would warrant a complaint?
RESPONSE: Yes. If you find that there is an Immigration Judge who deviates from the Local Rules so often that the Judge has effectively created his/her own “practice rules”, then please contact the appropriate Assistant Chief Immigration Judge.
- In some cases, documents submitted by a respondent in removal proceedings are submitted to the INS Forensics Documents Lab. The reports received from the FDL are generally quite conclusory and provide little analysis revealing the basis of the findings.
- What is the proper procedure for challenging a report from the FDL? Must the FDL investigator be subpoenaed to testify or are there other ways (written interrogatories, for example) by which counsel can discover the basis of the findings?
RESPONSE: It is up to the individual attorney to determine the strategy he or she wishes to take in challenging evidence submitted in Immigration Court, including any FDL reports.
- In many cases, the original documents are retained by the INS or even by the IJ in the record of proceedings. How can counsel request (and enforce) the return of these documents for submission to an independent examination?
RESPONSE: Once an original document is submitted in Immigration Court, it becomes part of the ROP. If a respondent or his/her counsel wishes to obtain the document for an independent report, he or she must make such request to the Immigration Judge.
- In a recent liaison, EOIR deferred response to a question about whether Form EOIR-28 must be signed by the respondent being represented, indicating that the issue was being considered. Has a conclusion been reached on this matter?
RESPONSE: This matter has not been concluded, however, resolution of the issue is expected in the near future and will likely coincide with publication of a revised Form EOIR-27/28.
- We again thank you for providing valuable docket information through your "800" line. Several questions have arisen as to additional information that would be useful:
- Can the EOIR Computer Information system (that gives information on cases) add a separate message that clearly includes cases that have been "administratively closed?" The current message regarding "administratively closed cases" states "a decision was made." This message is misleading and confusing.
- We have noticed some inconsistency on whether and when information concerning motions to reopen filed with the BIA or the Immigration Courts is included in the system. Sometimes the system will have this information, and other times not. Since this information is often accessed by INS and used in determining custody issues, what can be done to insure that the filing and status of such motions is included in the telephonic docket system?
RESPONSE: The 800 number was established in order to minimize the need and the time required for individuals to go to the immigration courts and stand in information lines for simple inquiries such as the next hearing date, time and location. As a result, the system contains relatively simple terms and information. The 800 number was not intended to be used for complex issues, including custody determinations. With respect to including a separate message that a case has been “administratively closed,” EOIR will not provide such a message as it is not misleading to state that a decision has been made when a case is administratively closed. When a case is administratively closed, the case is taken off the docket, and the decision closing the case is mailed to the parties. With regards to motions to reopen the jurisdiction before an Immigration Judge or the Board, they are posted on the 800 number, however, only the most recent proceeding information is given. EOIR reiterates that the parties should be in the practice of referencing the written decision and the record when deciding complex issues and should not refer to the 800 number alone.
- We have heard instances where INS attorneys have used the threat of the post-9/11 "special" closed hearing procedures as leverage to delay bond hearings and/or bond orders from IJ's, claiming that if the IJ is inclined to issue a bond order, they will simply "move" the respondent into the special closed proceedings, effectively taking the case away from that particular IJ. This tactic results in a quandary: Counsel can agree to serial postponements and leave the client detained for weeks while the INS tries to come up with some reason to defeat the bond request, or risk further delays and detention if INS makes good on the threat to use "special" proceedings.
- Does the INS alone have the power to place a respondent in the "special" hearing procedures? Does EOIR have any say in the matter?
RESPONSE: As previously discussed at the March AILA/INS Liaison meeting, unless the OCIJ gets notice from law enforcement officials that the case is no longer designated to receive special procedures, the case will remain closed to the public. The Immigration Judge has no role in this determination, law enforcement officials make the final decision.
- How can counsel respond to these tactics, short of a habeas corpus action in district court?
RESPONSE: It is up to the individual attorney to determine the strategy he or she wishes to take in representing his/her client and in dealing with opposing counsel, including the decision of whether to file a habeas corpus petition.
- Is EOIR planning on eliminating or modifying the closed hearing procedure in view of the 6th Circuit decision in the Detroit Free Press case?
RESPONSE: This case is still in litigation, thus it is not appropriate for EOIR to discuss this matter at this time.
- At the EOIR town meeting (June AILA conference), the panel offered to provide a listing and explanation of adjournment codes, including new code(s) created to reflect cases where the Court was awaiting INS action on a petition. Please furnish the current list.
RESPONSE: A listing and explanation of adjournment codes is available in OPPM 97-6. This list remains substantially complete, however, three new adjournment codes have been added since publication of this OPPM. These codes include concurrent applications, consolidation of family members and detained hearing case types. They are numbered 29 through 31 respectively.
- Under IIRIRA § 384, immigration proceedings under the Violence Against Women's Act are confidential; in addition, there are restrictions on evidence provided by the batterer or related household members, unless independent corroboration is available. A recent policy memo issued by INS reiterates that the restrictions and confidentiality provisions apply equally to INS and EOIR personnel, and that violations may result in sanctions and civil penalties. Members report that these provisions are not well known or understood, and even less frequently followed. In addition, the INS often introduces evidence from the batterer as "proposed exhibits" without offering (or even later attempting to offer) independent corroboration. Please describe any guidance provided to Immigration Judges regarding compliance with § 384. Also, please comment on whether the submission of such exhibits (without independent corroboration) violates § 384.
RESPONSE: The OCIJ has issued guidance regarding the procedures for identifying potential battered spouse/battered child cases. Please see OPPM 97-7. With respect to the example raised concerning submission of exhibits in these cases, the OCIJ does not give advisory legal opinions. This is something that must be addressed on a case-by-case basis before an Immigration Judge.
- What is the latest on the e-filing initiative?
RESPONSE: EOIR is working on an e-filing initiative. Currently, the IRM staff is in the process of creating a new integrated database that, once completed, will be implemented in the Immigration Courts and at the BIA. In addition, EOIR has hired an oversight consultant to guide the agency through the planning and implementation of e-filing. The consultants have a wealth of knowledge on the topic, as they have worked in court settings and have implemented e-filing in other court systems. Upon the completion of the initial transition phase of the contract with the consultant (within the next 6 months) EOIR will have more concrete time lines on the implementation of e-filing. As you know, in the coming months, AILA representatives have been invited to participate in a working group designed to inform EOIR of the particular insights and needs of private practitioners as we move forward with this exciting initiative.