ABA Pro Bono Training: The Essentials of Immigration Court Representation Introduction to Immigration Court Proceedings

Transcription

1 ABA Pro Bono Training: The Essentials of Immigration Court Representation Introduction to Immigration Court Proceedings Dree Collopy Co-panelist: Christina Fiflis

2 Presentation Overview Representation of Clients in Immigration Court Overview The Notice to Appear and Pleadings Brief Overview of Relief Available in Removal Proceedings The Immigration Court Practice Manual Working with Opposing Counsel The Fundamentals of Burden of Proof, Evidence, and Witness Examination The Shifting Burdens of Proof The Abridged Rules of Evidence Submission of Evidence/Authentication/Meeting your Burden Preparation of Witnesses; Direct, Cross, and Re-Direct Examination; Opening and Closing Statements Common Motions Used in Immigration Court

3 Representation of Clients in Immigration Court 1. The Notice to Appear and Pleadings 2. Master Calendar & Individual Hearings 3. Most Common Forms of Relief 4. The Immigration Court Practice Manual 5. Working with Opposing Counsel

4 The Notice to Appear and Pleadings in Immigration Court Commencement of Proceedings The main players Identification of non-citizens for removal by DHS Enforcement of U.S. Immigration Laws Useful Tools Charging Document What is a Notice to Appear? Initial considerations Challenging the Notice to Appear Pleadings in Immigration Court

5 Commencement of Proceedings Immigration Court proceedings begin the lodging of a charging document with the Immigration Court Prior to April 1, 1997: Exclusion Proceedings, Form I-122 Prior to April 1, 1997: Deportation Proceedings, Form I-221 Effective April 1, 1997: Removal Proceedings, Form I-862 The Main Players: U.S. Department of Justice, Executive Office for Immigration Review, Immigration Judges U.S. Department of Homeland Security, Immigration and Customs Enforcement The Respondent and You

6 Commencement of Proceedings: Identification and Enforcement Identification of Non-citizens for Removal by DHS Through U.S. Citizenship and Immigration Services Through U.S. Customs and Border Protection at a port of entry, or 110 miles of the border Through U.S. Immigration and Customs Enforcement (tips, raids, local law enforcement referrals, safe communities program, etc.)

7 Commencement of Proceedings: Identification and Enforcement Enforcement of U.S. Immigration Laws Under federal authority, but delegated to certain state officials under INA 287(g); INA 275 Powers to stop, search, seize, and arrest are found at INA 287 and 8 C.F.R (b)(1) Extremely broad power as long as liberty is not restrained No reasonable suspicion necessary at the border Expectation of privacy is less at the border (expansive search power) DHS may briefly detain an individual where there is reasonable suspicion (not probable cause) that the person is engaging in illegal activity or is in the U.S. unlawfully Home Searches: search warrant and probable cause required Employment Searches: search warrant, consent of owner or exigent circumstances required (but not necessary for public areas)

8 Commencement of Proceedings: Identification and Enforcement Due process rights exist for non-citizens Accardi v. Shaughnessy, 347 U.S. 260 (1954); Landon v. Placencia, 459 U.S. 21 (1982); Pyler v. Doe, 457 U.S. 202 (1982) Remedies for Due Process/Statutory and Regulatory Violations in Enforcement Motions to Suppress and Terminate Proceedings INS v. Lopez-Mendoza, 468 U.S (1984) egregious violations of the 4 th Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained

9 Commencement of Proceedings: Useful Tools Where is the court? When is the hearing? Immigration Court Information System: # Who is representing DHS? If your client is detained, who should you contact? Online Detainee Locator System:

10 Charging Document: the NTA What is a Notice to Appear? Form I-862 Charging Document that commences removal proceedings (INA 239(a)) Initial Considerations: Is the individual subject to proceedings? Is he/she removable as charged in the NTA? If so, is he/she eligible for relief? Identify deficiencies in the NTA or in the service of the NTA Statutory and regulatory requirements Due process

11 Charging Document: Identifying Deficiencies Specific Requirements for NTAs set forth at INA 239; 8 CFR 239.2, , The NTA must state: The nature of the proceedings The legal authority for the proceedings The acts or conduct alleged to be in violation of law The charges against the individual and the statutory authority for those charges Notification of the right to be represented by counsel Notification of the requirement that the Respondent must provide a current and updated address/phone number Service and issuance of the NTA must not be defective Must be served in person, or if personal service is not practicable, through mail to the Respondent or counsel of record

12 Charging Document: Identifying Deficiencies Due Process Requires that the NTA provide the Respondent with sufficient notice of the government s theory of the case and the evidence in support of that theory Proceedings comply with due process when the NTA is correctly prepared, accurately alleged and charged, and properly served INS v. Lopez-Mendoza, 468 U.S. 1032, (1984); see also Orhorhaghe v. INS, 38 F.3d 488, 493 (9 th Cir. 1994); Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979).

13 Charging Document: Challenging Deficiencies Why Challenge the Notice to Appear? Shift the burden of proof Preserve rights on appeal If you fail to review the NTA and make objections, you will likely be waiving any future challenges (Chambers v. Mukasey, 520 F.3d 445 (5 th Cir. 2008); Matter of Velasquez, 19 I&N Dec. 377, 380 (BIA 1986)) Termination of proceedings (claim to U.S. citizenship, regulatory violation, etc.) Eligibility for relief Contest mandatory detention

14 Charging Document: Challenging Deficiencies Review Allegations and Charges Carefully Correct date/manner of entry? Claim to U.S. Citizenship? Corrected categorization of criminal history? Asylee/refugee in proceedings without DHS having terminated protected status? 8 CFR Possible diplomatic immunity Respondent in A or G status? Information contained in the allegations obtained in violation of due process?

15 Pleadings in Immigration Court Address whether service of the NTA was proper Representation by counsel that he/she has discussed the nature and purpose of proceedings, as well as contents of the NTA, with Respondent Representation by counsel that he/she has explained the consequences of failing to appear or filing frivolous applications Admit or deny factual allegations and concede or deny charge(s) of removability Be prepared to explain why the Respondent denies any of these If relevant, notify the Court what application(s) for relief from removal the Respondent will be seeking Acknowledge that they must be timely filed and biometrics must be timely completed Notify the Court how much time Respondent needs to submit application(s) Be ready to explain prima facie eligibility for relief sought Notify the Court how much time Respondent needs to present the case in Court Notify the Court if any interpreters are needed Designate or decline to designate a country of removal

16 Master Calendar and Individual Hearings in Immigration Court Authority of the Immigration Judge Appearing before the Immigration Judge Form and Record of Proceedings Interpreters Attendance and Timeliness Master Calendar Hearing Individual Hearing

17 Authority of the Immigration Judge Set forth at INA 240(b)(1); 8 CFR , The Immigration Judge shall administer oaths, receive evidence, and interrogate, examine and cross-examine the alien and any witnesses issue subpoenas and sanction by civil money penalty any action or inaction in contempt of the judge s proper exercise of authority under the Act. INA 240(b)(1). The Immigration Judge shall conduct exclusion, deportation, removal and asylum proceedings and such other proceedings which the Attorney General may assign them to conduct. 8 CFR , ( shall exercise the discretion and Authority conferred upon the Attorney General by the Act as is appropriate and necessary for the disposition of such cases ).

18 Appearing before the Immigration Judge Practical tips for appearing before the Immigration Judge: 1. Be on time 2. Be familiar with and comply with the statute and regulations, the Immigration Court Practice Manual, and the basic rules of evidence 3. Be prepared 4. Be organized know your client and the documentation on record with the Court 5. Be civil

19 Form and Record of Proceedings Form of Proceedings (INA 240(b)(2); 8 CFR (c)) In person By video conference By telephone conference (evidentiary hearings on the merits may only be by telephone with consent) Record of Proceedings NTA, forms, applications for relief, exhibits submitted by the parties, motions, briefs, written orders and decisions of the Immigration Judge Recordings of Hearings Recorded electronically by the Immigration Judge May be off-the-record discussions, which are summarized on the record by the IJ Other types of Proceedings Deportation, exclusion Detention and Bond Discipline of Practitioners

20 Interpreters 8 CFR Interpreters are provided at government expense for Individual Hearings and, if necessary, Master Calendar Hearings Staff interpreters, contract interpreters, and telephonic interpretation services Oath to interpret and translate accurately in court

21 Attendance and Timeliness Attendance and Timeliness is Essential Delay in appearance or failure to appear may result in the Respondent s removal in absentia (8 CFR (c)) No appeal, but parties may file a motion to reopen an in absentia removal order

22 Master Calendar Hearing The Respondent s first appearance before an Immigration Judge in removal proceedings Notification of Master Calendar Hearing NTA or Hearing Notice with date, time, and location Purpose of Master Calendar Hearing: Entry of Appearance Advising the Respondent of rights NTA: explain the charges and factual allegations Pleadings Identify and narrow the factual and legal issues Set filing deadlines Status Updates Scheduling of the Individual Hearing for adjudication of contested matters and applications for relief Provide certain warnings to the Respondent

23 Individual Hearing Evidentiary hearings on contested matters, or merits hearings Challenges to removability Application(s) for relief Filings of applications, exhibits, motions, witness list, prehearing briefs prior to hearing Immigration Court Practice Manual for filing rules and deadlines Pre-Hearing Conferences and Communications Between the Parties Narrow issues, obtain stipulations, and simplify proceedings Content of Hearings Opening statements Objections to evidence Presentation of witnesses and evidence, as well as crossexamination of witnesses Closing statements Decision of the Immigration Judge (oral or written)

24 Most Common Forms of Relief Available in Removal Proceedings Termination and Administrative Closure Voluntary Departure INA 240B Asylum, Withholding of Removal, and Protection Under the Convention Against Torture INA 208(a), 241(b)(3) Cancellation of Removal LPRs Non-LPRs NACARA Special Rule Cancellation VAWA Cancellation Adjustment of Status INA 245(a) Special Cases INA 245(i) Waivers INA 212(c), 212(h), 212(i) VAWA and U visas Deferred Action

25 The Immigration Court Practice Manual Arose from desire for greater uniformity in Immigration Court procedures and need for Courts to implement best practices nationwide Table of Contents in your materials, full manual available online at: al/ocij_page1.htm

26 The Immigration Court Practice Manual Filing rules and deadlines Must be timely know the 15 day rule! Must include EOIR-28, cover page, fee receipt if applicable, application, exhibits with table of contents, proposed order in triplicate (for motions), proof of service Must serve opposing party Format must be proper Rules for conduct and procedures of hearings Motions before the Immigration Court Appeals of Immigration Judge decisions Rules for Detention and Bond proceedings Discipline of practitioners Appendices with samples

27 Working with Opposing Counsel Why work with opposing counsel? DHS and IJ also want a just result; minimizes the adversarial nature of proceedings Efficiency of case before the IJ Best possible outcome Take the long view Guard your reputation Don t sell out for a single client Know your case Make sure DHS knows you mean business if necessary Prosecutorial discretion new policy memos Stipulations Withholding prosecution Repapering Deferred Action

28 Burden of Proof, Evidence, Witness Examination, and Motions 1. The Shifting Burdens of Proof 2. The Abridged Rules of Evidence 3. Submission of Evidence, Authentication, Meeting your Burden 4. Preparation and Examination of Witnesses 5. Opening and Closing Statements 6. Common Motions Used

29 The Shifting Burdens of Proof Burden on DHS to prove: Alienage 8 CFR If the Respondent is present without being admitted or paroled, the burden is on DHS initially to establish alienage. Removability as charged INA 240(c)(3)(A); 8 CFR (a) If the Respondent was lawfully admitted but is now deportable, the burden is on DHS to prove that the Respondent is removable as charged by clear and convincing evidence. If there is any possible way to challenge alienage or removability, force DHS to meet their burden!

30 The Shifting Burdens of Proof Burden on Respondent to prove: Lawfully present or not inadmissible as charged 8 CFR (c) If the Respondent is present without being admitted or paroled and DHS established alienage, the burden shifts to the Respondent to prove that he/she is lawfully present ( clear and convincing ) or not inadmissible as charged ( clearly and beyond doubt ). Eligibility for relief from removal If DHS has established alienage and removability, the burden shifts to the Respondent to prove that he/she is eligible for relief from removal Meets all applicable eligibility requirements Merits a favorable exercise of discretion (for discretionary relief)

31 The Abridged Rules of Evidence in Immigration Court Rules of Evidence come from the Regulations and the Practice Manual Use your instincts Make objections to maintain the issues for appeal Rules that apply aimed at reliability and trustworthiness Authentication Best Evidence Administrative Notice Stipulations Rules that do not apply Hearsay Privileges When in doubt, it s about Fundamental Fairness!

32 Submission of Evidence, Authentication, and Meeting Your Burden Applications for Relief May be submitted any time before final order or on Motion to Reopen See Practice Manual for format Tab your exhibits! Know your record Do not submit duplicate evidence unless necessary Address issues you find in the record

33 Submission of Evidence, Authentication, and Meeting Your Burden Burden INA 240(c)(4)(A) Must satisfy basic statutory/regulatory eligibility requirements Meet each element Address any bars to relief / inadmissibility issues Criminal, misrepresentation/fraud, statutory bars Must show that a favorable exercise of discretion is warranted Address any adverse criminal factors, fraud, etc. Submit waivers Show rehabilitation and remorse Highlight positive factors: U.S. citizen family members, hardship to U.S. citizens, contributions to community, long period of time in the U.S., lack of criminal record, immigration history, paying taxes and other civic duties, etc.

34 Preparation of Witnesses, Witness Examination, Opening/Closing Statements Preparation of Witnesses Make sure the witness knows the purpose of the proceedings and the purpose of his/her testimony Familiarize the witness with the procedures and what to expect Prepare witnesses for questions that are likely to come up on cross-examination and explain the purpose of those questions Sworn affidavits are your friend! Use them!

35 Preparation of Witnesses, Witness Examination, Opening/Closing Statements Tips for Immigration Court Representation Know and follow the rules! Be prepared Contact the ICE Trial Attorney prior to the hearing Always keep the record in the back of your mind Protect your client and preserve issues for appeal Raise all non-frivolous arguments and challenge DHS Note anything improper or unfair to your client on the record by objecting to it (i.e. improper evidence or improper questioning) Be zealous, but not over-zealous remember your manners! Always listen carefully and be alert!

36 Preparation of Witnesses, Witness Examination, Opening/Closing Statements Direct Examination Have a plan, but be flexible Listen to your client s answers Pay attention to the Immigration Judge Ask direct, simple questions focused on the personal knowledge of the witness Watch out for leading questions Qualify your expert and/or witnesses to give opinions Defer to the Immigration Judge as the fact-finder Cross Examination Listen! Be prepared to object and make your objections for the record Re-direct Examination Don t repeat what has already been covered Purpose of re-direct is to respond to issues brought up on cross or to help clarify the Respondent s answers given on cross

37 Preparation of Witnesses, Witness Examination, Opening/Closing Statements Opening Statements Some IJs allow, some do not Most IJs start with preliminary matters, such as identifying the exhibits, asking if there are any objections to evidence, admitting the evidence into the record, etc. After preliminary matters, some IJs will ask you for your theory of the case This is your opportunity to tell the Judge what the case is all about! First impressions are lasting impressions! Purpose of an Opening Statement Establish the theory of your case (legal requirements with facts woven in) Establish your theme reduce a large amount of information to easily-remembered words and phrases Anticipate weaknesses and refute the other side Request an outcome tell the IJ what you want!

38 Preparation of Witnesses, Witness Examination, Opening/Closing Statements Closing Statements Most IJs allow closing statements Keep it short and sweet! This is your opportunity to tie it all together for the Immigration Judge not simply a summation! Remind the IJ of your theme and why he/she should find in your client s favor logic and emotion! Take the law, theory of your case, supporting evidence, and testimony presented, and mold them into a persuasive whole Deal candidly with weaknesses and dismiss them, point out weaknesses in the other side s case

39 Common Motions Used in Immigration Court Bond Motions Motions to Change Venue Motions for Telephonic Testimony Motions for Termination or Administrative Closure Motions for Continuances Motions to Reopen/Reconsider Motions to Suppress Evidence

40 Common Motions: Bond Motions Custody/Bond Redetermination DHS custody and bond determinations may be reviewed by an Immigration Judge 8 CFR 1236 Application for bond redetermination may be made orally, in writing, or, at the discretion of the IJ, by telephone Separate and apart from any deportation or removal hearing or proceeding 8 CFR (d)

41 Common Motions: Bond Motions Discretionary Determination by the IJ May consider any information available or presented Matter of Adeniji, 22 I&N Dec (BIA 1999) Establish not a danger to property or persons Establish not a flight risk Matter of Patel, 15 I&N Dec. 666 (BIA 1976) Local family ties Prior arrests, convictions, appearances at hearings Employment Membership in community organizations Manner of entry and length of time in the U.S. Immoral acts or participation in subversive activities Financial ability to post bond Chances of success on the merits

42 Common Motions: Bond Motions Mandatory Detention INA 236(c) For certain criminal aliens Joseph Hearing when DHS inaccurately charges your client as mandatory Matter of Joseph, 22 I&N Dec. 799 (BIA 1999) Properly included? DHS substantially unlikely to prevail on charge of removability specified in INA 236(c) Alternatives to Detention Matter of Garcia-Garcia, 24 I&N Dec. 93 (BIA 2009) Matter of Aguilar-Aquino, 25 I&N Dec. 93 (BIA 2010)

43 Common Motions: Motions to Change Venue Venue lies where the charging document is filed by the Service 8 CFR (a), (a) Usually, where the Respondent resides or is detained Standard is good cause Matter of Rahman, 20 I&N Dec. 480 (BIA 1992) Balance administrative convenience, location of Respondent and witnesses, efficiency, cost of transporting witness or evidence, etc. Know your Courts Seek advice of local counsel TRAC Study Advise client of possibility of conservative Court

44 Common Motions: Motions for Telephonic Testimony Motion for Telephonic Testimony Specify the witness s name and A number Detail and document the reasons why the witness cannot appear in person and why their testimony is important to the case Provide a written summary and estimated length of testimony Specify the language used by the witness Present a resume if the witness is an expert

45 Common Motions: Motions for Termination or Administrative Closure Motions to Terminate The order of the Immigration Judge shall direct the respondent s removal from the United States, or the termination of proceedings. 8 CFR (c) Reasons: Respondent not removable/inadmissible Lack of prosecution Challenges to the NTA Prosecutorial discretion Regulatory violations Motions for Administrative Closure Alternative to termination Matter of Gutierrez-Lopez, 21 I&N Dec. 479, 480 (BIA 1996) ( A case may not be administratively closed if opposed by either of the parties. ) Case still in EOIR system and pending, but temporarily off the docket may be recalendared Purpose is to allow time for USCIS to adjudicate petitions/applications, clarification of the law, etc. Recalendaring

46 Common Motions: Motions to Continue First continuance granted to pro se Respondents to seek counsel; then burden for continuance becomes good cause. Pending petitions before USCIS Pursuit of post-conviction relief under Padilla v. Kentucky Practice Manual File in writing no less than 15 days prior to the hearing (the sooner the better) Detail the reasons for the request and support with evidence Include preferred dates that party is available to re-schedule the hearing

47 Common Motions: Motions to Reopen New Evidence INA 240(c)(7) Deadline is 90 days One motion only Standards prima facie case for underlying relief, evidence previously unavailable and material, evidence could not have been discovered at previous hearing, must be supported with evidence and application for relief (if not already filed)

48 Common Motions: Motions to Reopen In Absentia INA 240(b)(5)(C) Must be filed with Court having administrative control over the case No Notice INA 239 May be filed at any time Automatic stay of removal Proper notice defined in INA 239(a) and Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001) Presumption of effective delivery (Matter of Grijalva, 21 I&N Dec. 27 (BIA 1996) Exceptional Circumstances Attempt to contact Immigration Court or explanation for failure to do so Evidence should include affidavits (Matter of J-P-, 22 I&N Dec. 33, (BIA 1998) Must be filed within 180 days INA 240(b)(5)(C)(i) Automatic stay of removal What are exceptional circumstances? Circumstances beyond the Respondent s control Totality of the Circumstances Test (Matter of W-F-, 21 I&N Dec. 503, 509 (BIA 1996)) Ineffective assistance of counsel (Matter of Grijalva, supra; Matter of Lozada, 19 I&N Dec. 637 (BIA 1988))

49 Common Motions: Motions to Reopen Beware Must file motion with Immigration Court with administrative control of the case 8 CFR (b)(1)(ii) BIA appeal vs. Motion to Reopen Was Respondent granted Voluntary Departure? Exceptions to Timeliness Requirement Sua sponte authority 8 CFR (a), (b)(1) Changed circumstances in asylum context INA 240(c)(7) Battered spouse provisions INA 240(c)(7)(C)(iv) Joint Motions 8 CFR (b)(4)(iv) Stay of Removal Add to motion Call the Board! Practice Manual Chapter 6

50 Common Motions: Motions to Reconsider Separate and distinct from Motions to Reopen Request that the original decision be reexamined in light of additional legal arguments, a change of law, or an argument or aspect of the case that was overlooked INA 240(c)(6)(C); 8 CFR (b)(2); Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006); Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002); Matter of Cerna, 20 I&N Dec. 399 (BIA 1991). Must be filed within 30 days of the entry of the final administrative order INA 240(c)(6)(B); 8 CFR (b)(1); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). May file one Motion to Reconsider a decision on removability INA 240(c)(6)(A); 8 CFR (b); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). May not seek reconsideration of a decision denying a previous Motion to Reconsider 8 CFR (b)(2)

51 Common Motions: Motions to Suppress Evidence Evidence is only admissible if it is probative and its use is fundamentally fair Matter of Ramirez Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter of Toro, 17 I&N Dec. 340 (BIA 1980) The exclusionary rule generally does not apply in civil immigration proceedings, but possible to suppress evidence obtained through egregious violations of due process INS v. Lopez-Mendoza, 468 U.S (1984) Regulatory violations that prejudice the Respondent can also result in termination of proceedings Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980)

52 Common Motions Used in Immigration Court Immigration Court Practice Manual, INA, Regulations, Due Process General Tips on Motions Determine DHS s position on the motion prior to filing Be clear about what you want the IJ to do Include the who, what, when, where, why Be clear and concise Support your reasoning with evidence Declarations, documentation, applications, etc. Don t forget your proposed order in triplicate!

53 Introduction to Immigration Court Proceedings GOOD LUCK!!! Questions? Contact us: Dree Collopy Christina Fiflis