Linda Kenepaske Law Offices of Linda Kenepaske, PLLC 17 Battery Place, Suite 1226 These materials were originally submitted in conjunction with the program The Basics of Removal Defense held on June 12, 2017. New York, NY 10004 TIPS FOR REPRESENTING RESPONDENTS BEFORE THE IMMIGRATION COURT Although the following tips are mainly for representing respondents before the Immigration Court in connection with an application for Cancellation of Removal for LPRs and non-lprs and 212 (c) applications; they apply in general to other forms of relief, as well. The Department of Homeland Security The immigration departments of the Department of Homeland Security (DHS) are: United States Citizenship and Immigration Services (USCIS): responsible for adjudication of visa petitions, naturalization petitions, asylum and refugee applications. The USCIS website at www.uscis.gov contains a complete set of the Immigration and Nationality Act (INA) regulations, filing procedures, forms (some fillable online), filing fees, etc. Immigration and Customs Enforcement (ICE): responsible for detention, removal, and the Office of the Principal Legal Advisor (District Counsel), which represents ICE before the Immigration Courts. Enforcement and Removal Operations (ERO), a department of ICE, is responsible for detention and removal of non-citizens. The ICE website is located at www.ice.gov. ICE now has a detainee locator system, which may accessed at www.ice.gov/locator. Customs and Border Protection (CBP): responsible for border inspections. The CBP website is located at www.cbp.gov. The Executive Office for Immigration Review The Executive Office for Immigration Review (EOIR) and the Board of Immigration Appeals (BIA) are under the Department of Justice (DOJ). For more information about EOIR, go to www.usdoj.gov/eoir. The website contains a wealth of information, including BIA precedent 1
decisions, regulations, federal court cases, and the EOIR and BIA Practice Manuals. EOIR has a computerized system accessible by telephone that allows respondents, attorneys, and any other interested parties to check on hearing dates, case history, etc. by entering the alien number of the individual and following the instructions. The number is 1-800-898-7180. The Immigration and Nationality Act (INA) is found at 8 U.S.C. 1101 et seq. The regulations for the INA are found at 8 C.F.R. Useful publications and websites Immigration Law Sourcebook, Fifteenth Edition, Ira J. Kurzban (American Law Foundation); Immigration Law and Procedure, Gordon, Mailman, Yale-Loehr, (Lexis-Nexis); Interpreter Releases, Report and Analysis of Immigration and Nationality Law (a weekly periodical) (West Group); Bender s Immigration Bulletin (a biweekly periodical) (Lexis-Nexis) www.bibdaily.com; Defending Immigrants Partnership/National Legal Aid and Defender Association: www.nlada.org contains immigration consequences of multiple state and federal offenses; Aggravated Felonies, Norton Tooby and Joseph Justin Rollin, Law Offices of Norton Tooby; Crimes of Moral Turpitude, The Complete Guide, Norton Tooby, Joseph Justin Rollin, and Jennifer N. Foster, Law Offices of Norton Tooby; Immigration Consequences of Criminal Activity, A Guide to Representing Foreign-Born Defendants, Mary Kramer, 6 th Edition, American Immigration Lawyers Association. American Immigration Lawyers Association at www.aila.org Asylum Primer, 7 th Edition, American Immigration Lawyers Association 2
Before Going to Immigration Court Meeting with your Client Carefully explain the removal and relief process to your client. Make clear that your client must cooperate with you in order to help bring about a successful outcome. Let your client know what his or her burden is before the Court and what the IJ and DHS will be considering. Make lists of documents your clients must obtain and give dates certain by which you must have the documents. Be frank with your client regarding chance of success. Get to know as much as possible about your client why he left his native country, his criminal record, family, work history, educational background, and mental and physical health. It is important to investigate the occupations, medical/psychological health, etc. of family members as well. Find out the background behind your client s criminal offenses. Look at pre-sentence reports, police reports, indictments, psychological evaluations, etc. Often the criminal attorney who represented your client in the criminal case has invaluable information about the whole criminal case. Find out what is particularly compelling about your client s case. Find the hook. Find out the weak areas of your client s case, such as criminal convictions that are not charged on the NTA or a lack of work history, for example and plan about how to present and/or mitigate those factors. Meet with your client and his witnesses before the hearing in order to go over the questions you will be asking in court. Remember that the client and his witnesses are not professional witnesses, and will most likely never have testified in a court before. Many people who have been convicted of a crime were convicted pursuant to a plea, and the removal hearing will be the first time they have ever discussed or testified about the circumstances surrounding the conviction. Prepare for the testimony by asking the client all of the questions you will ask as well as all of the questions the DHS counsel may ask. Do not be afraid to cross examine your client during the preparation. It will prepare her for the actual hearing. Keep in mind that such a preparation session may take three or four hours. Often it is necessary to meet several times for preparation. It is best to have the final meeting within one or two weeks of the hearing, so that the questions will be fresh in the minds of the respondent, the witnesses, and the attorney. Remind your client that she must testify in a frank and forthright manner about every aspect of her case particularly about the circumstances surrounding any criminal offenses or negative factors. Many cases have been lost because the respondent was vague, refused to take responsibility, or was evasive about a negative factor. 3
Contact DHS counsel to discuss the case beforehand to see whether the issues can be narrowed or whether DHS counsel might be willing to stipulate to a grant of relief. Remember that you must convince two people of the strength of your client s application: the IJ and DHS counsel handling the case. Even though an IJ may grant an application for relief, DHS counsel may still appeal the IJ s grant. The Removal Proceedings The removal proceedings are civil in nature, rather than criminal. The respondent has a right to competent counsel; however, she has no right to government appointed counsel. It is crucial for the respondent to have an attorney. A respondent who does not understand English is entitled to translation from English into his best language, as part of his right to present evidence and cross examine witnesses. Be sure to clarify for the IJ at the master calendar that your client will need an interpreter at his individual calendar hearing. The respondent must plead to the charges contained in the NTA and the charge of removability. Burden is on the DHS/ICE to establish removability by clear, unequivocal and convincing evidence (8 C.F.R. 240.8(a)); Woodby v. INS, 385 U.S. 276 (1966). Under 8 C.F.R. 1240.8(a), however, the standard is clear and convincing. The respondent has a right to request relief from removal Rules of evidence are relaxed. Hearsay is admissible, if probative. It is not admissible, if it is fundamentally unfair. The Respondent has a right to present evidence and cross-examine witnesses. The EOIR Practice Manuel is an invaluable procedural road map. It tells when and how to file all motions, evidence, and witness lists, for example. It contains sample motions and cover sheets for submissions. The Immigration Court Clerk may reject submissions that do not comply with the rules in the EOIR Practice Manuel. Likewise, an Immigration Judge may not accept submissions in court if they are not properly tabbed, paginated, and indexed. Although the EOIR Practice Manuel has standardized practice before the Immigration Court to a certain extent, practices may vary from jurisdiction to jurisdiction and from IJ to IJ. It is important to be familiar with local practices. 4
The respondent has the right to appeal the Immigration Judge s decision to the BIA within 30 days. While the appeal is pending, the respondent may remain in the United States, as removal is automatically stayed. The NTA and Pleadings The Notice to Appear ( NTA ) is the charging document issued by an authorized agent of the United States Department of Homeland Security (DHS) to a non-citizen (respondent) who will face removal in adversarial proceedings. Once DHS files the NTA with the Executive Office for Immigration Review (EOIR) jurisdiction vests with the EOIR and the immigration court, and the respondent enters into proceedings that will determine whether he may be removed from the United States. It is important to take the time to carefully go over the (NTA) and to satisfy yourself that your client is removable as charged. The NTA may contain errors in dates, sections of law, or may be improperly issued, etc. Get your Immigration and Nationality Act (INA) out and look carefully at the sections of law set forth on the NTA. Be sure that any information about your client, such as name or date of adjustment or admission to the United States is correct. At the Master Calendar, the respondent is generally expected to concede service of the NTA and to plead to the charges. If the respondent has not been served with the NTA, do not concede service. The issue of when the respondent was served the NTA is often a crucial factor in the availability of relief to the respondent. If you are not prepared to plead to the charges, request a continuance for attorney preparation. Depending on the jurisdiction, many Immigration Judges (IJs) are willing to grant such a continuance, particularly if the hearing is before the Immigration Judge for the first time or the attorney was retained only a short time before the hearing. In general, do not stipulate to the criminal charges and charges of removability, if the NTA contains such charges. It is generally the DHS counsel s burden to establish removability. For example, DHS counsel must submit a certified disposition of a criminal conviction to the IJ, if DHS is alleging removability of an LPR because of a criminal conviction. If DHS counsel is unable to produce a certified conviction of record, and you do not concede removability, as charged, the IJ may terminate proceedings. This is particularly important when your client does not appear to be eligible for any form of relief. 5
Closely examine any of your client s dispositions of arrest. It is not unheard of for certified dispositions of arrest to contain errors that may mean the difference between eligibility for relief and non-eligibility for relief deportation for your client. In some cases, particularly when the subsection of the individual criminal statute under which your client was convicted is unclear, get the plea and/or sentencing minutes, as well as the docket sheets. If there is an error on the disposition, it may be necessary to correct the mistake by filing a motion with the criminal court. Document, Document, Document. It is crucial to document your client s application for relief as well as possible and to follow the EOIR Practice Manuel regarding format and timing of submissions to the Court. The following is a non-exhaustive list of documents to submit to the IJ in accordance with the EOIR Practice Manual for an application for Cancellation of Removal for LPRs and Non-LPRs. The documentation submitted depends on the application for relief before the Court. Documentation of the respondent s family members who reside in the United States and abroad. Include birth certificates, alien registration cards, naturalization certificates, and proof of any military service. Documentation of the respondent s work history. Include income tax returns (IRS transcripts, if possible) for all years in the U.S.; W-2 forms; dated and signed letters from former and current employers; recent pay stubs; and Social Security earnings statements. Documentation of the respondent s continuous residence in the United States. Income tax returns; pay stubs; job letters; Social Security earnings statements; medical records; school transcripts; birth certificates, baptism certificates of children born in the United States; utility and other bills; and even arrest record are examples of some documents that help prove continuous residence. Documentation of respondent s membership in community organizations, religious groups, etc. Certified dispositions of all arrests. Proof of termination of parole/probation supervision. 6
Proof of payment of any fines. Documentation of programs the respondent has participated in during his incarceration, including evaluations, certificates, and recommendations. Documentation of real estate owned by the respondent. Documentation of any businesses owned by the respondent. Credit reports may be very useful, particularly to establish physical presence Letters of recommendation and support. Be sure that the writers of the letters include their names, addresses, and that their signatures are notarized. A copy of an identity documents, such as an alien registration card, naturalization certificate, or driver s license should also be included. Documentation of any medical conditions, both physical and psychological, suffered by the respondent or any close family members. If the respondent or any close family member, including a spouse, was in the U.S. armed forces, a copy of her DD-214 form, as well as any recommendations, commendations, awards, etc. Psychological evaluations of respondent and/or family members. Background information about the country to which the respondent may be removed, if the conditions are unfavorable. Be sure to highlight the relevant sections of background reports, newspaper articles, etc. Proof that respondent s children are attending school. This may include grade cards, awards, evaluations, and recommendations. Proof of financial support of dependents, both in and outside the United States. Proof that the respondent is attending AA or NA programs, or any other rehabilitative programs, if relevant to the case. Witnesses. It is very important for witnesses to appear at the respondent s hearing to testify in support of the respondent s application for relief, if witnesses are available. The spouse s testimony is crucial, 7
if the respondent is married. A fiancée s or an ex-spouse s testimony can also be very powerful. Parents and children who are over the age of sixteen may also be effective witnesses. In some situations, psychologists, physicians, employers, neighbors, ministers, or co-workers may provide testimony. In some situations, particularly when the respondent may face removal to a country in political or economic upheaval, an expert witness may provide testimony regarding the hardship the respondent and/or his family members would suffer if he were deported. Witnesses may appear telephonically, upon motion to the Immigration Judge. Even if family members do not testify, it is often helpful for them to attend the hearing so that their presence (and interest) can be noted by the IJ. Affidavits. It is advisable to submit affidavits of all witnesses to the IJ with the witness list. It helps organize and frame the witnesses testimony, while at the same time giving the IJ and the DHS Counsel handling the case an idea of which way the case is headed. It may help shorten the length of the hearing, by leading to a stipulation of a grant of relief or at the very least, a stipulation to the testimony contained in the affidavit so that the witness does not need to testify. This may be helpful, although on some occasions it is necessary to insist on the witness s actual testimony before the Court, particularly if the case is a close one and the witness is particularly compelling. Talk to the DHS attorney before the hearing. Find out which DHS attorney will be representing DHS at your client s merits hearing and try to get in touch with him or her in order to discuss the case, narrow the issues, and, even sometimes, 8
stipulate to relief. Not all DHS attorneys are willing to speak with opposing counsel before the hearing, but it is always a good idea to try, even if it is right before the hearing takes place. Make an effort to convince not only the IJ, but DHS counsel as well, that your client s application for cancellation of removal should be granted, because DHS has the ability to file an appeal of an IJ s decision, if DHS counsel does not agree with the decision. Testimony during the hearing. Outline your line of questioning or your actual questions for direct examination for your own use. This will keep you organized and less likely to forget important lines of questioning. Ask the respondent and the witnesses questions that will allow the IJ and the DHS counsel to see them as human beings, rather than just as respondents and witnesses. 9