IMMIGRATION COURT TRAINING CLASS

Transcription

1 IMMIGRATION COURT TRAINING CLASS Handouts and Discussion Questions THIS HANDOUT CAN BE FOUND AT: http: :// Prepared by: Sean R. Hanover, Esq Contact: // // Offices in Washington, DC and Fairfax, VA. 1

2 WHAT WE ARE DOING IN THIS CLASS This is a court/trial focused class. In some respects, it is easier to describe what will not be covered in this course: We will not cover family/business based immigration (forms) We will not cover all forms of possible relief We do not discuss all possible implications of various scenarios (such as double EWI) We do not cover BIA or appeals (very briefly) We will be covering how to handle immigration court, and how to handle a detained docket based clientele. We begin with the presumption you have no idea how to setup a practice. We will discuss the proper Agreement for Representation form, how to interview clients, how to brief the client on different types of common defensive court relief, how to prepare motions, what to expect at the two major types of hearings (Master Calendar Hearing (commonly called MCH) and Individual Calendar Hearings (commonly called IC)), how to request relief from the court, what to do when your client lies, and how to interrogate (err ask pointed questions) of the client. YOU ARE NOT EXPECTED TO HAVE ANY EXPERIENCE. 2

3 TYPES OF RELIEF The critical work that we will be referring to throughout the class is entitled: Relief from Removal. This is a guide for judges. The full document is attached. Please pay special note to the index, as we will be referring to it frequently. For an online copy, visit: Unless you enjoy killing trees, I do not recommend printing the entire 250+ page document. Cut and paste relevant parts to your own briefs. ***** READ THIS HANDOUT ***** If you get nothing else from this class, this handout will serve you well in every trial prep you do. 3

4 ASYLUM-CAT-WITHHOLDING ( Asylum, Withholding of Removal, CAT A. Asylum In an asylum adjudication, the applicant bears the burden of establishing statutory eligibility, which requires a showing of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a)(42)(A). If eligibility is established, asylum may be granted in the exercise of discretion. INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987). 1. Credibility In all applications for asylum, the Court must make a threshold determination of the alien s credibility. Matter of O-D-, 21 I&N Dec. 1079, 1081 (BIA 1998). An applicant s own testimony is sufficient to meet his burden of proving his asylum claim if it is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis of his fear. Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989); 8 C.F.R (a). An applicant may be given the benefit of the doubt if there is some ambiguity regarding an aspect of his asylum claim. Matter of Y-B-, 21 I&N Dec. 1136, 1139 (BIA 1998). In some cases, an applicant may be found to be credible even if he has trouble remembering specific facts. See, e.g., Matter of B-, 21 I&N Dec. 66, (BIA 1995). While minor and isolated discrepancies in the applicant s testimony are not necessarily fatal to credibility, omission of key events coupled with numerous inconsistencies may lead to a finding that the applicant is not credible. Matter of A-S-, 21 I&N Dec. 1106, (BIA 1998). Testimony is not considered credible when it is inconsistent, contradictory with current country conditions, or inherently improbable. Matter of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997). An adverse credibility finding must be supported by specific and cogent reasons that have a legitimate nexus to the finding in the case. Matter of A-S-, supra. The REAL ID Act of 2005 amended various sections of the Immigration and Nationality Act relating to the adjudication of asylum applications. Pub. L. No , Div. B, 119 Stat. 231 (2005). For asylum applications initially filed on or after May 11, 2005, whether with an asylum officer or Immigration Judge, the following factors may be considered in the assessment of an applicant s credibility: demeanor, candor, responsiveness, inherent plausibility of the claim, the consistency between oral and written statements, the internal consistency of such statements, the consistency of such statements with evidence of record, and any inaccuracy or falsehood in such statements, whether or not such inaccuracy or falsehood goes to the heart of the applicant s claim. INA 208(b)(1)(B)(iii); In re J-Y-C-, 24 I&N Dec. 260 (2007); In re S-B-, 24 I&N Dec. 42 (BIA 2006). 4

5 2. Corroboration An alien requesting asylum bears the evidentiary burdens of proof and persuasion in connection with any application under section 208 of the Act. 8 C.F.R (a). Uncorroborated testimony that is credible, persuasive, and specific may be sufficient to sustain the burden of proof to establish a claim for asylum. See INA 208(b)(1)(B)(ii); 8 C.F.R (a); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987). The Board has recognized the difficulties an asylum applicant may face obtaining documentary or other corroborative evidence to support his claim of persecution. Matter of Dass, 20 I&N Dec. at 124. As such, unreasonable demands are not placed on an asylum applicant to present evidence to corroborate particular experiences (e.g., corroboration from the persecutor). See Matter of S-M-J-, 21 I&N Dec. at 725. However, where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant s claim, such evidence must be provided as long as the applicant has the evidence or can reasonably obtain it. Matter of S-M-J-, 21 I&N Dec. at 725. If such evidence is unavailable, the applicant must explain its unavailability and the immigration judge must ensure that the applicant s explanation is included in the record. Id. 3. Statutory Eligibility An asylum applicant may demonstrate that he is a refugee in either of two ways. First, he may demonstrate that he has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a)(42)(A). Second, he may demonstrate a well-founded fear of future persecution on account of a protected ground through credible testimony that he subjectively fears persecution and that his fear is objectively reasonable. In mixed motive asylum cases, the REAL ID Act of 2005, requires an applicant to prove that race, religion, nationality, membership in a particular social group or political opinion was or will be at least one central reason for the claimed persecution. Section 103(a)(3) of the REAL ID Act of 2005, Div. B of Pub. L , 119 Stat. 302,303; In J-B-N & S-M-, 24 I&N Dec. 208 (BIA 2007). To establish past persecution, the applicant must demonstrate that he suffered persecution in his country of nationality or, if stateless, in his country of last habitual residence, on account of an actual or imputed protected ground, and that he is unable or unwilling to return to, or avail himself of the protection of, that country because of such persecution. 8 C.F.R (b)(1). If past persecution is established, a presumption arises that the applicant has a well-founded fear of future persecution on the basis of his original claim. Id. This regulatory presumption may be rebutted if the Department establishes by a preponderance of the evidence that the applicant s fear is no longer well-founded due to a fundamental change in circumstances or that the applicant could avoid future persecution by relocating to another part of the country and that it would be reasonable to expect him to do so. 8 C.F.R (b)(1)(i)-(ii). An applicant who fails to present a credible basis for a claim of past persecution may nevertheless prevail on a 5

6 theory of future persecution as long as the factual predicate of the claim of future persecution is independent from the testimony found not to be credible. To establish a well-founded fear of future persecution, the applicant must satisfy both a subjective and an objective component. Credible testimony by an applicant may be enough to satisfy the subjective component, depending on the circumstances. Once a subjective fear of persecution is established, the applicant need only show that such fear is grounded in reality to meet the objective element of the test; that is, he must present credible, specific and detailed evidence that a reasonable person in his position would fear persecution. The applicant s fear may be well-founded even if there is only a slight, though discernible, chance of persecution. INS v.cardoza-fonseca, 480 U.S. at 431 (1987). 4. Discretion An applicant who establishes statutory eligibility for asylum still bears the burden of demonstrating that he merits a grant of asylum as a matter of discretion. INA 208(b)(1); see also Cardoza-Fonseca, 480 U.S. at 428 (noting that the Attorney General is not required to grant asylum to everyone who meets the refugee definition). In determining whether a favorable exercise of discretion is warranted, both favorable and adverse factors should be considered. Matter of Pula, 19 I& N Dec. 467, 473 (BIA 1987). Humanitarian factors, such as age, health, or family ties, should be considered in the exercise of discretion. Matter of H-, 21 I&N Dec. 337, (BIA 1996) (citing Matter of Pula, 19 I&N Dec. 467). The danger of persecution should outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. at 474. A decision to deny asylum in the exercise of discretion should not be based solely on the alien s use of a smuggler to enter the United States or on a partial adverse credibility determination. An applicant may warrant a grant of asylum in the exercise of discretion, even where there is little likelihood of future persecution, if compelling, humanitarian considerations would be involved if he were forced to return to the country where he suffered persecution in the past. Matter of H-, 21 I&N Dec. at 347 (noting that asylum should be granted in the exercise of discretion... where the asylum applicant has suffered such severe persecution that he or she should not be expected to repatriate ); Matter of Chen, 20 I&N Dec. 16, (BIA 1989) (granting asylum to a respondent who suffered severe past persecution in China and demonstrated other compelling factors to warrant a favorable exercise of discretion). 5. Legal standard for any bars to asylum (omit if not applicable) Filing Within One Year of Admission Persecutor Particularly Serious Crime Serious Nonpolitical Crime Terrorist/Danger to Security of U.S. Firm Resettlement B. Withholding of Removal under INA 241(b)(3) 6

7 As with asylum, a threshold determination must be made as to the credibility of the applicant for withholding of removal. INA 241(b)(3)(C); see also INA 1208(b)(1)(B)(ii) and (iii). A claim for withholding of removal is factually related to an asylum claim, but the applicant bears a heavier burden of proof to merit relief. For withholding, the applicant must demonstrate that, if returned to his country, his life or freedom would be threatened on account of one of the protected grounds. INA 241(b)(3). To make this showing, the applicant must establish a clear probability of persecution, meaning that it is more likely than not that he will be subject to persecution on account of a protected ground if returned to the country from which he seeks withholding of removal. Cardoza-Fonseca, 480 U.S The applicant s credible testimony alone may be sufficient to sustain this burden of proof. 8 C.F.R (b). If an alien demonstrates that s/he suffered past persecution in the proposed country of removal, the burden shifts to the Department to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal. 8 C.F.R (b)(1). There is no discretionary element. Therefore, if the applicant establishes eligibility, withholding of removal must be granted. INA 241(b)(3). Additionally, there is no statutory time limit for bringing a withholding of removal claim. Because asylum and withholding claims rely on the same factual basis, but there is a heavier burden for withholding, an applicant who fails to establish his eligibility for asylum necessarily fails to establish eligibility for withholding.. An applicant is precluded from applying for relief under INA 241(b)(3) if he participated in the persecution of others, if he was convicted of a particularly serious crime, if there are serious reasons to believe he committed a serious nonpolitical crime outside of the United States, or if there are reasonable grounds to believe he is a danger to the security of the United States. INA 241(b)(3)(B). A particularly serious crime need not be an aggravated felony. Once the elements of the offense are examined and found to potentially bring the offense within the ambit of a particularly serious crime, all reliable information may be considered in making a particularly serious crime determination, including but not limited to the record of conviction and sentencing information. In re N-A-M-, 24 I&N Dec.336 (BIA 2007). When an Immigration Judge issues a decision granting an alien s application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, without a grant of asylum, the decision must include an explicit order of removal. Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008). A grant of withholding does not prevent DHS from removing the alien to a country other than the one to which removal has been withheld. 8 C.F.R (f). C. Withholding of Removal under the Convention Against Torture The Convention Against Torture and its implementing regulations provide that no person may be removed to a country where it is more likely than not that such person will be subject to torture. See United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( CAT ), G.A. Res. 39/46, U.N. Doc. A/39/51 (Dec. 10, 1984); Pub. L (1998); 8 C.F.R , , ; see also Matter of M-B- A-, 23 I&N Dec. 474, (BIA 2002). 7

8 Torture is defined, in part, as the intentional infliction of severe pain or suffering by, or at the instigation of, or with the consent or acquiescence of a public official. 8 C.F.R (a)(1). It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions, unless such sanctions defeat the purpose of the CAT. 8 C.F.R (a)(3). For an act to constitute torture, it must be directed against a person. Acquiescence of a public official requires that the official have awareness of or remain willfully blind to the activity constituting torture, prior to its commission, and thereafter breach his or her legal responsibility to intervene to prevent such activity. 8 C.F.R (a)(7). The applicant for CAT relief bears the burden of proof. 8 C.F.R (c)(2). As with asylum adjudications, the applicant s testimony, if credible, may be sufficient to sustain the burden of proof without corroboration. Id., see also Matter of Y-B-, 21 I&N Dec. at However, if the applicant s testimony is the primary basis for the CAT claim and it is found not to be credible, that adverse credibility finding may provide a sufficient basis for denial of CAT relief. In assessing whether the applicant has satisfied the burden of proof, the Court must consider all evidence relevant to the possibility of future torture, including evidence that the applicant has suffered torture in the past; evidence that the applicant could relocate to a part of the country of removal where he is not likely to be tortured; evidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information on country conditions. 8 C.F.R (c)(3). A pattern of human rights violations alone is not sufficient to show that a particular person would be in danger of being subjected to torture upon his return to that country; specific grounds must exist to indicate that the applicant will be personally at risk of torture. Matter of S-V-, 22 I&N Dec. at To meet his burden of proof, an applicant for CAT relief must establish that someone in his particular alleged circumstances is more likely than not to be tortured in the country designated for removal. Matter of J-E-, 23 I&N Dec. 291, (BIA 2002); Matter of G-A-, 23 I&N Dec. 366, (BIA 2002); Matter of M-B-A-, 23 I&N Dec. at Eligibility for CAT relief cannot be established by stringing together a series of suppositions to show that torture is more likely than not to occur unless the evidence shows that each step in the hypothetical chain of events is more likely than not to happen. Matter of J-F-F-, 23 I&N Dec. 912, (A.G. 2006). There is no statutory time limit for filing a claim under the Convention Against Torture. An applicant who establishes that he or she is entitled to CAT protection shall be granted withholding of removal unless he or she is subject to mandatory denial of that relief, in which case he or she shall be granted deferral of removal. 8 C.F.R (c)(4), (a); An applicant is subject to mandatory denial of withholding of removal under CAT if he or she participated in the persecution of others, if he or she was convicted of a particularly serious crime, if there are serious reasons to believe he or she committed a serious nonpolitical crime outside of the United States, or if there are reasonable grounds to believe he or she is a danger to the security of the United States. 8 C.F.R (d)(2); see also INA 241(b)(3)(B). Yet, an alien s criminal convictions, no matter how serious, are not a bar to deferral of removal under the Convention Against Torture. See 8 C.F.R (a); Matter of G-A-, 23 I&N Dec. at 368. When an Immigration Judge grants deferral of removal under the Convention Against Torture, he or she must first issue an explicit order of removal. The regulations at 8 C.F.R (b) require that when the Immigration Judge grants deferral of removal to an alien the judge must inform the alien that 8

9 the alien s removal to the country where the alien is more likely than not to be tortured shall be deferred until such time as the deferral is terminated. The Immigration Judge shall further inform the alien that the grant of deferral of removal: 1. Does not confer upon the alien any lawful or permanent immigration status in the United States; 2. Will not necessarily result in the alien being released from the custody of the DHS if the alien is subject to such custody; 3. Is effective only until terminated; 4. Is subject to review and termination based on a DHS motion if the Immigration Judge determines that it is not likely that the alien would be tortured in the country to which removal has been deferred, or upon the alien s request; and 5. Defers removal only to the country where it has been determined that the alien is likely to be tortured and does not preclude the DHS from removing the alien to another country where it is not likely the alien would be tortured. 9

10 IMMIGRATION ETHICS ADVISING THE CLIENT (This is an article that outlines common pitfalls of working with immigration clients. DO NOT become this lawyer.) See: for additional pointers on this topic. * No immigration lawyer can guarantee you a specific outcome. If they try, they are not being honest. * There are no absolute guarantees in immigration court. Similar to the first point, a lawyer who promises a 100% success rate is not being honest. * NEVER work with a lawyer that advocates lying on any immigration application. Withholding information may, or may not constitute lying, depending on what is being withheld and why. However, when you hear a person start discussing just don t say that or you don t need to report this walk away. At best, you may be denied the relief you seek. At worst, you may be charged with criminal counts. * Don t lie about events in your home country. While certainly harder to research, misrepresentations here can cause unbelievable problems in the future. * There is no such thing as an inside contact so don t believe it. If there really was an insider peddling favors, they would end up in jail. We are presently working with Robert Scholfield and problems that came from that. Don t be tempted it ends badly. 10

11 FRIVOLOUS FILINGS AND WHAT IT MEANS TO THE IMMIGRATION PRACTIONER (see FRIVOLOUS FINDING STANDARD LANGUAGE In addition to an adverse credibility finding, the Court further concludes that the respondent s testimony in support of his asylum application was so inconsistent that it rises to the level of being knowingly frivolous within the meaning of section 208(d)(6) of the Act and 8 C.F.R (2005). The Court may enter a finding that the respondent has submitted a frivolous asylum application if it determines that the respondent deliberately fabricated any material elements of his asylum application. See 8 C.F.R The Board of Immigration Appeals ( Board ) has formulated a four-part test to determine if a respondent has filed a frivolous application: (1) the respondent must receive notice of the consequences of filing a frivolous application; (2) the Immigration Judge must make a specific finding that the alien knowingly filed a frivolous application; (3) there must be sufficient evidence that a material element was deliberately fabricated; and (4) there must be an indication that the respondent has been afforded a sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007). A finding of submission of a frivolous application shall render the respondent permanently ineligible for any benefit under the Act, aside from withholding of removal. See INA 208(d)(6); 8 C.F.R Relief under Article III of the Convention Against Torture is not barred by a frivolous finding because it is not a benefit under the Act. A. Notice Before a frivolous finding may be made, the Court must ensure that the respondent has received notice of the consequences of filing a frivolous claim. See INA 208(d)(4). Although the Board has not articulated the standard for what degree of notice is required, an asylum applications contains warnings regarding frivolous applications and the regulations state that an applicant s signature establishes a presumption that the applicant is aware of the contents of the application. 8 C.F.R (c)(2). In Y-L-, 24 I&N Dec. at , the Board found that notice had been satisfied where the respondent signed his application which contained a warning; where he signed a Notice of Privilege of Counsel and Consequences of Knowingly Filing a Frivolous Application for Asylum in front of the Immigration Judge; and where there was an assurance by counsel that he had informed the respondent of the consequences of filing a frivolous application. [Apply standard to facts of case] Signature on application Signed oath from Asylum Office Written advisal in Court Oral warning in Court B. Deliberate Misrepresentation 11

12 In order for a frivolous finding to be upheld, the preponderance of the evidence must demonstrate that the respondent knowingly filed an application with a deliberate misrepresentation of a material fact. Y-L-, 24 I&N Dec. at 157. The Court must provide cogent and convincing reasons for finding by a preponderance of the evidence that an asylum applicant knowingly and deliberately fabricated material elements of the claim. Id. at 158. The Board found that there is no indication in the statute or regulation that a frivolousness finding must be supported by concrete or conclusive evidence of fabrication. Id. Further, the Board noted that [a]s a general rule, the law draws no distinction between direct and circumstantial evidence in requiring the government to carry its burden of proof. Id. (citing United States v. MacPherson, 424 F.3d 183, 190 (2d Cir. 2005)). While the IJ must find proof that conduct was knowing or deliberate, this finding may be demonstrated by circumstantial evidence. Id. at 158. However, the inconsistencies in the application must be a result of the respondent s deliberate fabrication, rather than the product of another s actions. See generally Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004)(reversing an adverse credibility finding where there was no evidence the petitioner knew the document her sister sent her was counterfeit). [Apply standard to facts of case] Knowingly false Deliberately presented Direct evidence: admittedly false testimony, fraudulent documents Circumstantial evidence: general implausibility, major internal/external inconsistencies C. Material Materiality is not defined for purposes of the frivolous finding statutes or regulations, nor are there any published or unpublished cases that have spoken on its materiality requirement. However, in the context of determining excludability for having made a material misrepresentation under former section 212(a)(19) of the Act, Board has long held that a misrepresentation is material if the respondent is excludable on the true facts or the misrepresentation tends to shut off a line of inquiry relevant to the benefit that might have resulted in the alien s exclusion. See, e.g., Matter of Bosuego, 17 I&N Dec. 125, 130 (BIA 1980); Matter of S- and B-C-, 9 I&N Dec. 436, 447 (BIA 1960). The Ninth Circuit has adopted the Supreme Court s conclusion that a misrepresentation is material if it has a natural tendency to influence the decisions of the [Government]. Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995) (quoting Kungys v. United States, 485 U.S. 759, 772 (1988)). See also Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 1998) (Chairman Rosenburg, concurring in part and dissenting in part). A misrepresentation can be said to have such a tendency if honest representations would predictably have disclosed other facts relevant to [the alien s] qualification. Forbes, 48 F.3d at (quoting Kungys, 485 U.S. at 783 (Brennan, J., concurring) (alteration in original, quotation marks omitted)). [Apply standard to facts of case] Misrepresentation Relation of misrepresentation to material aspect of claim What makes it material? Heart of claim; past events which form basis of claim; entry date if one year bar issue? 12

13 D. Sufficient Opportunity to Explain A frivolous finding shall only be made if the Court is satisfied that the applicant, during the course of the proceedings, had a sufficient opportunity to account for any discrepancies or implausibilities that form the basis of the frivolous finding. 8 C.F.R ; Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003). The Ninth Circuit has emphasized that the respondent must be given ample opportunity to address any perceived inconsistencies. See Farah, 348 F.3d at Indeed, the Board even suggests that the Immigration Judge bring the possibility of a frivolous finding to the attention of a respondent during the course of the hearing. Y-L-, 24 I&N Dec. at In order to ensure that a respondent has been given a sufficient opportunity to explain any inconsistencies, the Court must go through specific inconsistencies or implausible elements of [the] claim, and give [the applicant] an opportunity to explain them. Id. at 160. However, depending on the degree of the fabrications, [t]here may be situations in which the deliberate fabrication of a material aspect of the asylum claim is so clear on the record that a formal request for an explanation would be a needless exercise. Id. [Apply standard to facts of case] Notification to the respondent that a frivolous finding may be made? Opportunity to explain each instance E. Conclusion Based on this analysis, the Court finds that, despite having been given notice of the consequence of filing a frivolous asylum claim, the respondent knowingly filed an asylum application with a deliberate misrepresentation of a material fact. The respondent has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim, but has failed to adequately explain them. The Court accordingly finds that under section 208(d)(6) of the Act, the respondent shall be permanently ineligible for any benefits under the Act, effective as of the date of this order. 13

14 CONDUCT GIVING RISE TO ETHICAL AND JUDICIAL PROBLEMS (from NOTE: Highlighted items are critical, common errors where practitioners make mistakes. We will discuss these in depth Conduct The following conduct by practitioners may result in discipline. See 8 C.F.R For a full explanation of each ground for discipline, the regulation should be consulted. These examples do not constitute the only grounds for which disciplinary sanctions may be imposed. -- grossly excessive fees -- bribery or coercion -- offering false evidence, making a false statement of material fact or law -- improperly soliciting clients -- disbarment or suspension, or resignation while a disciplinary investigation or proceeding is pending -- misrepresenting qualifications or services offered -- conduct that would constitute contempt of court in a judicial proceeding -- a conviction for a serious crime -- falsely certifying a copy of a document -- frivolous behavior, as defined in 8 C.F.R (j) -- ineffective assistance of counsel -- repeated failure to appear -- assisting in the unauthorized practice of law -- engaging in conduct that is prejudicial to the administration of justice or undermines the integrity of the adjudicative process -- failing to provide competent representation to a client -- failing to abide by a client s decisions -- failing to act with reasonable diligence and promptness -- a practitioner s workload must be controlled and managed so that each matter can be handled competently -- a practitioner has the duty to comply with all time and filing limitations -- a practitioner should carry through to conclusion all matters undertaken for a client, consistent with the scope of representation -- failing to maintain communication with the client -- failing to disclose adverse legal authority -- failing to submit a Notice of Entry of Appearance as Attorney or -- repeatedly filing boilerplate submissions 14

15 COURT FILING REQUIREMENTS (from (Sample Proof of Service). When documents are submitted as a package, the Proof of Service should be placed at the bottom of the package. (i) Contents of Proof of Service. Proof of Service must state: o o o o o the name or title of the party served the precise and complete address of the party served the date of service the means of service (e.g., hand delivery, regular mail, overnight mail, commercial courier, etc.) the document or documents being served A Proof of Service must contain the name and signature of the person serving the document. A Proof of Service may be signed by an individual designated by the filing party, unlike the document(s) being served, which must be signed by the filing party. FORMAT REQUIREMENTS: This is from Chapter 3 Page Numbers: Bottom center or bottom right of the document. Every page. Exhibits: Tabbed with letters, starting at A Always include table of contents Always cite EACH exhibit in the certification of service Exhibits should have their own page numbers (not always practical). Hole-Punch: Double punch, center. ALL documents. 15

16 Order of documents: (Generic see pages in the manual) (1) Form EOIR-28 [always] (2) cover page [always] (3) if applicable, fee receipt (stapled to the motion or application) or motion for a fee waiver [include if applicable] (4) motion to reopen [insert whatever motion is applicable] (5) a copy of the Immigration Judge's decision [include if applicable always for post-decision motions] (6) a motion brief [always] (7) if applicable, a copy of the application for relief [depends on nature of motion] supporting documentation (if any) with table of contents [always] (8) Alien's Change of Address Form (Form EOIR- 33/IC) (recommended even if the alien's address has not changed) [odd, but makes the court happy] (9) a proposed order for the Immigration Judge's signature [always] (10) Proof of Service [always certification of service MUST show EACH of the 10 items above by name. Many courts will find service deficient if EACH individual item in the package is not noticed in the certification of service.] 16

17 SIGNATURES (from chapter 3 of the Handbook) (a) Signatures.- No forms, motions, briefs, or other submissions are properly filed without an original signature from either the alien, the alien's representative, or a representative of the Department of Homeland Security. A Proof of Service also requires a signature but may be filed by someone designated by the filing party. See Chapter 3.2(e) (Proof of Service). A signature represents a certification by the signer that: he or she has read the document; to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is grounded in fact; the document is submitted in good faith; and the document has not been filed for any improper purpose. See 8 C.F.R )(1). A signature represents the signer's authorization, attestation, and accountability. Every signature must be accompanied by the typed or printed name. PRACTICE POINTER: You may sign for your client; however, be sure that your client fully understands what you are signing on his/her behalf. The client will still be held accountable. You MAY NOT have someone sign on your behalf. Not only is this a bad practice in terms of good lawyering, but it is invalid before the immigration court. 17

18 SAMPLE FORMS/MOTIONS Sean R. Hanover, Esq for Respondent th St., NW Suite 800 Washington, DC DETAINED UNITED STATED DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Baltimore, MD In the Matter of: CLIENT NAME FILE No.: AXXXXXXXX IN REMOVAL PROCEEDINGS MOTION FOR BOND RE-DETERMINATION 18

19 Comes now Respondent, CLIENT NAME, by and through counsel, and pursuant to INA 236(a) hereby requests that a bond determination hearing be had at his Master Calendar Hearing of 29 August 2012 or sooner as determined by the Court. In support the following is submitted. 1. Respondent is currently in ICE custody in Maryland. 2. Respondent was arrested in Calvert County on charges of Driving While Intoxicated, and after a plea agreement between the State and Mr. NAME, made without advisement as to the effect such plea would have on LPR status, Mr. NAME was given 30 days in jail and work release thereafter. 3. According to Respondent s counsel s information and knowledge, Respondent has had two prior conviction for DUI in the last seven years. Additionally, in April, 1990, Respondent entered guilty pleas, without advisement as to the impact such pleas would have on his LPR status, of statutory burglary and of credit card theft. 4. Despite repeated requests, and providing ICE with a signed G-28, no NTA has been provided to counsel, or to our knowledge, Mr. NAME. The delay in filing this motion with the court was directly caused by our inability to obtain an NTA, and our efforts to do so before filing for a bond. 5. When counsel spoke with ICE, the primary reason for Mr. NAME s detention and 19

20 investigation by ICE are the charges from The charges from 1990 are remote, being challenged under the Padilla standard in Virginia, and a motion for 212(c) relief has been filed with this Court. 7. Respondent is a 40 year-old citizen of Trinidad and Tobago. He first entered the United States approximately 28 years ago. According to counsel s knowledge and information he has lived here continuously since that time. 8. Mr. NAME lives with his wife, Ms. WIFE NAME. Respondent has two US citizen children; SON NAME, age 17, and DAUGHTER NAME, age 14. Both Respondent s mother and step father live in Springfield, VA. 9. Respondent is active in family life, and owns his own business, Reflection Marine, Paint, and Autobody LLC in Calvert County. He has maintained and active and vibrant business for the last 3 years. Prior to that, he worked in various autobody shops in the surrounding areas. 10. Mr. NAME owns a home in Calvert County, a boat, and several vehicles. He is well invested in the community and unlikely to abandon his family, status, and ties. 11. Respondent will be seeking any and all relief available through this court including Cancellation of Removal, 212(c) relief, CAT relief, and underlying Padilla relief in Virginia. Separate motions and information on these actions has already been (or will be) filed at the 20

21 Master Calendar Hearing. 12. For the above stated reasons, Respondent maintains that he is not a flight risk, nor does he present any danger to property or persons. Matter of Patel, 15 I&N Dec. 666 (BIA 1976), Matter of Urena, 25 I&N Dec. 140 (BIA 2009) 13. Respondent will reside at STREET., CITY, STATE, ZIP, after he is released and for the remaining of his proceedings. 14. His family needs Mr. NAME. His business is going bankrupt for want of attention, and customers are demanding their vehicles and contracts. Continued confinement of Mr. NAME is not in the interest of the State, not in the interest of Justice, and does a manifest wrong to the community that depends on Mr. NAME to complete the work he promised. 21

22 15. Respondent therefore respectfully requests the honorable court that he be released on a bond set no higher than $5, Respectfully submitted this 27 th day of August, By Counsel: Sean R. Hanover, Esq. Principal Attorney Hanover Law, PC th St., Suite 800 Washington, DC

23 UNITED STATED DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Baltimore, MD In the Matter of: CLIENT NAME FILE No.: AXXXXXXX IN REMOVAL PROCEEDINGS MOTION FOR BOND RE-DETERMINATION ORDER Respondent's Motion for a Bond is hereby: GRANTED DENIED and if granted is set at Dated this day of, 2012 Signed, The Honorable Judge 23

24 UNITED STATED DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Baltimore, MD In the Matter of: CLIENT NAME FILE No.: AXXXXXXXX IN REMOVAL PROCEEDINGS MOTION FOR BOND RE-DETERMINATION PROOF OF SERVICE On August 27, 2012, I, Sean R. Hanover, Esq, served a copy of this Motion for Bond Determination on the Office of DHS Chief Counsel at YE OLDE DHS/ICE TARGET OFFICE via certified mail. By: Sean R. Hanover, Esq. Principal Attorney Hanover Law, PC

25 Sean R. Hanover, Esq for Respondent th St., NW Suite 800 Washington, DC DETAINED UNITED STATED DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Alexandria, Virginia In the Matter of: XXXX XXXX FILE No.: AXXXXXXXX IN REMOVAL PROCEEDINGS INDIVIDUAL CALENDAR HEARING ON THE MATTER OF WITHHOLDING/CAT RELIEF FOR XXXX XXXX Comes now your respondent, XXXX XXXX, through counsel, and submits this brief in support of his argument for relief from removal: 25

26 I. JURISDICTION In accordance with 8 C.F.R (a)(i-iv), the immigration judge, and by extension, this Court, has jurisdictions over matters related to withholding of deportation, asylum, and the Convention Against Torture (CAT). II. REVIEW OF AVAILABLE RELIEF A. ASYLUM Mr. XXXX is not eligible for asylum relief. The respondent has been convicted of multiple crimes, one or more of which fall under the definition of aggravated felony as outlined in 8 U.S.C. 1101(a)(43) (in this instance, drug related offenses). A person convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime. 8 U.S.C. 1158(b)(2)(B)(i); see also Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir. 2008). A person convicted of a particularly serious crime is considered per se to be a danger to the community and not eligible for asylum relief. Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987). B. WITHHOLDING OF REMOVAL 26

27 Mr. XXXX is eligible for withholding of removal. Pursuant to 8 C.F.R (b), Respondent requests this honorable Court exercise its discretion and grant an order withholding removal. To be eligible for withholding of removal, an alien must not have committed a serious crime. For the purposes of withholding consideration, a serious crime is defined at 8 U.S.C. 1231(b)(3)(B), which states that a conviction in any court resulting in an aggregate jail sentence of 5 years or more, constitutes a serious crime for purposes of withholding removal. Note this is a different standard than the serious crime bar for asylum relief. The respondent has been convicted of three crimes: i. Receiving stolen property (1993) sentence: <12 months. ii. Possession w/ intent to distribute (2010) sentence: 12 months. iii. Possession of marijuana (2011) sentence: fine. Pursuant to Matter of N-A-M, 245 I. & N., Dec. 336 at 342 (BIA 2007), a conviction record constitutes reliable grounds for determining if the respondent was sentenced to incarceration for five years or more. The total sentence itself, not the actual time served or time suspended, is used to determine whether the 5 year threshold has been past (8 U.S.C. 1101(a)(48)(B)). Mr. XXXX has not been sentenced to a total of 5 years, and therefore, he is eligible for relief by way of withholding. C. CONVENTION AGAINST TORTURE 27

28 Mr. XXXX is eligible for consideration under the Convention Against Torture (CAT) as outlined in 8 C.F.R (a)(1). Pursuant to 8 C.F.R (c)(1), Respondent requests this honorable Court consider a deferral of removal under CAT regulations. As Mr. XXXX was not convicted of a particularly serious crime resulting in an aggregate sentence of 5 years or more, he is eligible for CAT-withholding (under 8 C.F.R (c)) and CAT-deferral or removal (8 C.F.R (a)). Ntamack v. Holder, 372 Fed. Appx. 407 at 412 (4 th Cir. 2010); 8 C.F.R (a). The immigration Court is required to consider all relevant factual information regarding torture, murder, and government controlled, or sponsored, abuse related to Mr. XXXX s case. 8 C.F.R (c)(3). See also Edu v. Holder, 624 F.3d 1137 (9th Cir. 2010). Accordingly, Mr. XXXX requests this court grant withholding of deportation or, in the alternative, protection under the Convention Against Torture by withholding or deferral of removal under the provisions of CAT. To support a finding of eligibility under section 8 C.F.R (b) (withholding), and in the alternative, demonstration of factual evidence to support a CAT 8 C.F.R (c)/ (a) claim, the respondent submits the following historical information on himself, the country of Guyana, and his justification for reasonable fear of returning to his home country. 28

29 III. HISTORY AND STATUS OF XXXX XXXX Mr. XXXX was born in Guyana the 18 January Until age 14, he lived in a suburb of Georgetown, Guyana, with his aunt. His mother (Mrs. Dolly XXXX) left for America when he was very young. His father (Mr. Winston XXXX, senior) worked in the interior of the country and stayed only one or two weeks a month with Mr. XXXX and his aunt. At age 14, Mr. XXXX (senior) and Mrs. XXXX decided conditions in Guyana in general, and with Mr. XXXX, specifically, had deteriorated to a point where Mr. XXXX remaining in Guyana was not safe or prudent. Mr. XXXX was heavily involved with drugs, gangs, and illegal activities while living in the Georgetown suburbs. He joined his first gang at 12 called the Hot Skulls. In turn, the Hot Skulls were a splinter group off of the Beast of the Southern World, one of the many phantom groups originally un-named, but built by the Guyana police force as mobile death squads aimed at curbing crime by killing enemies of the State in the early 2000 s (Staff Report, Guyana s Gangs, Stabroek Newspaper, Georgetown, Guyana, 10 December 2008, exhibit 1). Before leaving Guyana, Mr. XXXX would describe the gangs with which he was affiliated as fitting the definition of loose networks with shifting membership and uncertain leadership model described by Stabroek. He engaged in drug running between outside villages and the capital, and was used because his youth was rarely a trigger for concern or investigation. The young Mr. XXXX never harmed anyone, and was never involved in persecuting non-gang 29

30 members. He strictly provided watch duty and drug mule-ing for the Hot Skulls. In the fall of 1989, Mr. XXXX (senior) was concerned enough about his sons activities that he spoke to his wife about sending Mr. XXXX to stay with her. Mr. XXXX (senior) believed that his son was in imminent risk of being murdered or seriously harmed on account of his activities with the gangs. His son was failing school and often staying out overnight and without regard to parental control. Mr. XXXX was anxious to go to the United States. While his life in Guyana was fun, even he realized there was no future to it, and the U.S. would offer a much better opportunity to meet people and succeed. The slum and drugs were his only course in Guyana. However, before his mother would allow him to come to the U.S., he was required to foreswear all gang activity and association, and promise to never contact those people again. In December of 1989, Mr. XXXX told his friends and gang members that he was quitting getting out of the gangs, and going to America. They took this badly, threatening that if he left, he could never come back or they would kill him. Mr. XXXX was 14. Mr. XXXX emigrated to the US in February of 1990 via Baltimore. He obtained LPR status and resided with his mother until leaving her home to begin living on his own as an adult. He never contacted any former gang member, never sent payment or support back to Guyana, never joined a gang in the U.S. and has completely turned his back on any gang affiliation. IV. THE STATUS OF GANGS, THE GOVERNMENT, AND GUYANA According to the 2012 Crime and Safety Report issues by the U.S. State Department, 30

31 Guyana s criminal and gang related violence is rated CRITICAL. Citing to the United Nation s Report on Drugs and Crime, the report indicates that in 2012, Guyana ranked 4 th highest overall in number of homicides per 10,000 individuals in all countries throughout South America (U.S. Department of State, Overseas Security Advisory Council, Guyana 2012 Crime and Safety Report, April 2012, exhibit 2). Police response to crime is minimal in fact, they are often in league with the criminals. According to the Guyana 2012 Crime and Safety Report: The limited police presence in most areas is largely ineffective in preventing crime.when police do respond, they have a limited amount of authority to act on their part, and at time attempt to solicit bribes, as officers are not compensated well. Corruption is widely perceived to be commonplace within the police department and overall government in Georgetown. Many police are reportedly paid off by criminal elements and are alleged to work with the criminals by either assisting or protecting them.it is a common perception that some police are, or have been, involved in criminal activity (pgs 3-4). Involvement of the government in gangs began in the where the head of the police force hired para-military fighters to hunt down and kill key criminals that were causing a wave of violence and unrest in the country (Staff Report, Is the Phantom Squad still Lurking in Guyana?, Stabroek Newspaper, Georgetown, Guyana, 05 October 2008, exhibit 3). The phantom death squad was allegedly directed by the Minister of Home Affair, Mr. Ronald Gajraj. Once the wave of criminal activity was past, the phantom death squads did not quit, but rather continued assassinating targets both independently and on behalf of the government. Those men killing people all over and some a dem innocent, if a man jam you car and you want he dead all you have to do is pay dem men. 31

32 (Is the Phantom Squad still Lurking in Guyana?). The government liaison, Mr. Gajraj, was eventually forced out of office and transferred to India. However, by that time, the phantom squads had integrated into the police force. A new leader, Roger Khan, emerged. He was an informant that originally helped the phantoms and the government target criminals and other non-desirables. As a leadership vacuum established with Mr. Gajraj investigation and impending departure, he took over control of the phantom groups and began using them to enforce drug running (cocaine and marijuana). He continued to maintain a tight connection between police and extra-judicial murder in order to enforce his drug running operations. This continued until he was apprehended by US Marshals in Suriname in Khan was ultimately able to control the cocaine industry in Guyana, in large part, because he was backed by a para military squad that would murder, threaten, and intimidate others at Khan s directive. Khan s enforcers committed violent acts and murders on Khan s orders that were directly in furtherance of Khan s drug trafficking conspiracy, court documents said. The documents added that the paramilitary squad was referred to as the phantom squad (Is the Phantom Squad still Lurking in Guyana?). After 2006, the phantom squads lacked central leadership. Individual gangs would occasionally cooperate or work together to move drugs from the inner-counties to the port cities. However, the phantom squads, and the sub-gangs associated with them, continued to maintain a strong connection with police. Former Police Commissioner and now APNU MP on public safety, Winston Felix told the National Assembly on Friday that bribery and corruption were rampant features in the Guyana Police Force.Felix told his fellow Parliamentarians the 32