The following information is to allow you to familiarize yourself with general immigration court process. If you have any questions regarding this information, or other questions regarding a criminal matter, please contact us.
THE ACTORS IN IMMIGRATION PROCESS
The Department of Homeland Security (DHS), which absorbed the functions of the Immigration and Naturalization Service (INS), is responsible for commencing a removal proceeding. If the DHS alleges a violation of immigration laws, it has the direction to “serve” the alien with a charging document, known as a Notice to Appear. This document orders the individual to appear before an Immigration Judge, and adviseshim or her of, among other things: Nature of the proceedings against individual; Individual’s alleged acts that violated the law; Individual’s right to an attorney; and Consequences of failing to appear at scheduled hearings.
A Notice to Appear (NTA) is issued by the Bureau of Immigration and Customs Enforcement (ICE), served to the alien, and filed with the Immigration Court. In addition to containing general information about the immigrant (name, country of origin, etc.), the NTA also states the reasons for the deportation or removal.
Removal proceedings generally require an Immigration Judge to make two findings: a determination of the alien’s removability from the United States, and whether the alien is eligible for a form of relief from removal
The Executive Office for Immigration Review (EOIR) is responsible for adjudicating immigration cases. Specifically, under delegated authority from the Attorney General, EOIR interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three components:
1. The Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases. Immigration Judge decisions are administratively final unless the case is appealed to the BIA;
2. The Board of Immigration Appeals (BIA), which primarily conducts appellate reviews of immigration judge decisions. BIA decisions are binding unless modified or overruled by the Attorney General or a Federal Court;
3. The Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases.
Within the U.S. Department of Justice, more than 200 Immigration Judges, located in 53 Immigration Courts nationwide conduct proceedings and decide individual removal cases. Removal proceedings account for approximately 80 percent of Immigration Judges’ caseload. Federal rules of evidence are inapplicable in Immigration Court; thus, an Immigration Judge has greater authority to consider most kinds of evidence in deciding a case.
Classes of Deportable Aliens
Any alien that is in the United States may be subject to deportation or removal if he or she: Is an inadmissible alien according to immigration laws in effect at the time of entry to the U.S. or adjustment of nonimmigrant status; Is present in the U.S. in violation of the Immigration and Nationality Act or any other U.S. law; Violated nonimmigrant status or a condition of entry into the U.S.; Terminated a conditional permanent residence; Encouraged or aided any other alien to enter the U.S. illegally; Engaged in marriage fraud to gain admission to the U.S.; Was convicted of certain criminal offenses; Failed to register or falsified documents relating to entry in to the U.S.; Engaged in any activity that endangers public safety or creates a risk of national security; or Engaged in unlawful voting.
IMMIGRATION COURT PROCESS
Once an applicant has been placed in removal proceedings, the case becomes procedurally more formal and the stakes for the applicant become much higher. A foreign national can apply for asylum, withholding and CAT before an Immigration Judge (“IJ”) as a defense to removal proceedings if he has been placed in removal proceedings for some other reason, such as an ICE work raid, or a criminal arrest. Also, an affirmative asylum applicant who loses before the Asylum Office can renew his application for asylum, withholding and CAT before the IJ. The asylum application is heard de novo before the IJ. Unlike the asylum interview, removal proceedings are adversarial with an attorney from Immigration and Customs Enforcement (“ICE”) (most often) fighting against relief for the applicant.
Master Calendar
As in criminal cases, there are two types of court dates in Immigration Court, one is called Master Calendar and the other is the Individual Hearing. The first court date in the NTA will be for a Master Calendar date. On Master Calendar dates, the IJ deals with administrative issues, including scheduling, filing applications, pleading to the immigration charges, and other issues that arise. There are generally 20-30 cases scheduled during a two hour period for Master Calendar. Most Judges take cases where the respondents are represented by counsel first, and some Judges hear pro bono cases before cases with private attorneys. Most attorneys in Immigration Court practice there every day, so the IJ and ICE attorney will speak in lingo which may be unfamiliar.
Arriving in Court
When the attorney arrives in the Court room, he usually waits for a break between cases and then go check in with the court clerk seated to the side of the Judge. The attorney hands the clerk the completed EOIR-28 form and lets the clerk know which case is his. The attorney then sits and waits for the case to be called. In the Atlanta Immigration Court, Judges will call the the attorney cases first on a first come, first served basis.
The Beginning of the Hearing
When respondent’s case is called, the Immigration Judge is likely to talk with attorney off-the-record to determine respondent’s intentions and to straighten out any procedural problems. On the record, the Judge will state the nature of the proceedings and ask you if respondent understands what is happening.
Determining Representation by Counsel
Respondent will first be asked if the attorney is respondent’s representative. If an individual appears without counsel, the Judge will usually ask the individual if he would like a continuance in order to seek legal counsel. There generally are not interpreters present for the Master Calendar and normally the only conversation the Judge will have directly with the respondent is to confirm that he wants the attorney present to represent him. Although the respondent plays a minor role at Master Calendar hearings, he must be present for all of them (unless the IJ explicitly waives his presence) or he will be ordered removed in absentia.
The Notice to Appear – Admitting or Denying the Charges and Conceding Removability
On the Master Calendar date when respondent go forward with the case, the attorney or respondent will be asked if respondent has received a copy of the NTA. If not, respondent’s attorney will say so and ask for a copy. One of the purposes of the Master Calendar is for the respondent, through counsel if represented, to plead to the charges in the NTA, i.e. to admit or deny that they are accurate. These charges generally look like this:
1) You are not a citizen or national of the United States;
2) You are a native of THE COUNTRY and a citizen of THE COUNTRY;
3) You were admitted to the United States at New York, NY on DATE as a nonimmigrant VISA TYPE with authorization to remain in the United States for a temporary period not to exceed DATE;
4) You remained in the United States beyond DATE without authorization from the Immigration and Naturalization Service;
On the basis of the foregoing, it is charged that you are subject to removal from the United States pursuant to the following provision(s) of law:
Section 237(a)(1)(B) of the Immigration and nationality Act (Act), as amended, in that after admission as a nonimmigrant under Section 101(a)(15) of the Act, you have remained in the United States for a time longer than permitted, in violation of this Act or any other law of the United States.
Prior to the court date, the attorney usually reviews the charges with the client. If all of the information is correct, the attorney admits the charges. If any of the facts are incorrect (such as the date of entry into the United States), the attorney denies the charge and state the correct fact. In most asylum cases, the charge of removability will simply be that the respondent overstayed his visa, or entered without a lawful visa. If the applicant is charged with a criminal ground of removability, the issues are more complicated. In order to be eligible to apply for asylum, the respondent, through the attorney, must admit removability under one of the grounds.
Designating a Country of Removal
Next, the Judge will ask if the client wishes to designate a country of removal. In asylum cases, the attorney usually states that she does not wish to do so since the idea behind an asylum/withholding/CAT application is that under no circumstances does the respondent ever wish to return to his country. The Judge will then identify the client’s home country as the country of removal. If the Trial Attorney or Judge designates a country other than the one from which respondent is seeking asylum, the attorney registers his opposition on the record and requests leave to designate the country from which asylum is sought.
Stating the Client’s Desire to Apply for Asylum
The attorney or the client will then state for the record that the client wishes to apply for asylum. If IJ will asks what other forms of relief the respondent is seeking, the attorney then responds, “asylum, withholding of removal, and relief under the Convention against Torture.” Alternate grounds of relief, such as voluntary departure usually is also stated.
A grant of VD allows the respondent to depart the United States on his own rather than being deported if he is unsuccessful with his other applications.
Setting a Date for Submissions of Applications for Relief
If respondent has not yet filed an asylum application, or other application for relief, the Judge will usually set a date for submission of the completed written application. This time period is generally 30 to 45 days. If respondent, however, was referred from the Asylum Office, the Judge will have a copy of the I-589 application from the Asylum Office already in the Court file. If respondent is renewing her request for asylum, withholding of removal, and protection under the Convention Against Torture, the Judge will likely indicate that any amendments to the I-589 asylum application should be tendered to the Court at the same time as other pre-trail submissions prior to a Merits Hearing. If the attorney wishes to file a new I-589, she must do so in open court on a Master Calendar date. The reason for this is so that the IJ can put on the record either that the IJ has read the respondent the warning of the consequences of filing a frivolous asylum application or that the attorney assumes responsibility for doing so. It is only the I-589 itself which needs to be filed in open court, any other supplementary documents, such as a revised declaration, corroborating documents, or country conditions information can be submitted to the ICE district counsel’s office and Immigration Court clerk’s office prior to the Individual Hearing by a date specified by the IJ.
Background Checks
Since September 11, 2001, ICE has become increasingly concerned with running full background checks on all applicants for immigration benefits. The rules for how frequently the applicant must be fingerprinted as well as additional checks keep changing. There have been recent instances where IJs have threatened to dismiss asylum applications for failure to prosecute by the respondent where the asylum seeker has inadvertently failed to comply with fingerprinting procedures.
Requesting an Interpreter
The Immigration Judge will also ask the attorney what the respondent’s best language is. Unlike at the asylum interview, in Immigration Court, a professional interpreter is supplied by the Court for the Individual Hearing. Even if a respondent wants to supply her own interpreter, she cannot. Nevertheless, if the applicant can testify in English, it is often a better strategy to do so.
Setting the Date and Amount of Time for the Merits Hearing
The date of the hearing on the merits of the claim will generally be several (4-18) months in the future. The Judge usually asks how much time will be necessary to complete the hearing. Once the hearing date is set, the Master Calendar is adjourned.
At the last Master Calendar, the IJ will also give the attorney a “call up” date for when any other document submissions are due. At a minimum all documents are due no less than 10 days before the Individual Hearing. Some Judges require documents specific to the applicant’s case (as opposed to background, country condition materials) to be submitted 30 or 60 days before the Individual Hearing.
If respondent is detained at a facility such as the Stewart Detention Facility he will receive an expedited hearing date. Mostly, detained individuals have their final hearing date set for one or two months in advance.
The Individual Hearing – Before Testimony Begins
Before the start of the hearing, the Judge will generally engage in a substantial amount of off-the-record conversation, reviewing the file, identifying exhibits, and clarifying issues, such as the status of previously filed motions, or the number of witnesses the respondent will call.
Before Testimony Begins – Correcting and Updating Information
At the beginning of the hearing on-the-record, the respondent’s attorney is generally given a chance to update or correct any information on the client’s application or other materials previously submitted. Often times asylum seekers have submitted their own pro se applications before seeking legal assistance, and these may have substantial errors. For example, many clients have unwittingly filed boilerplate applications prepared by unethical “notaries” or others and signed applications whose contents they know nothing about. If this is the case, respondent’s attorney offers correct information and a strong explanation for the inconsistencies by means of a detailed affidavit from the client if possible or at the outset of the hearing and affirmatively through the client’s own testimony.
Identifying and Admitting Exhibits
Next the Judge will go through the process of admitting exhibits. Generally, the Notice to Appear and related materials have already been admitted as initial exhibits and the asylum application along with all attached materials will be identified and admitted as a group exhibit. The Judge will simply identify all offered exhibits and ask if there are any objections. There are generally no objections to this, but if the Trial Attorney does object to a particular piece of evidence, the Judge will usually permit brief arguments and rule quickly. Occasionally, specific items such as expert witness affidavits or curriculum vitae, or pieces of direct evidence, such as letters or documents, will draw objections that the Judge is not comfortable ruling on at that point. In these circumstances, the Judge may instead reserve his ruling until the attorney presents the evidence during the course of the case.
Before Testimony Begins – Conferencing the Case
Sometimes rather than launch directly into the hearing, the IJ will conference the case with the respondent’s attorney and the ICE attorney. Other times the IJ will ask the two attorneys to discuss the case before going on the record to see if any agreements can be reached. On rare occasion, with particularly compelling cases, the IJ will express her predisposition to grant the case before the hearing begins and will conference with the ICE attorney and respondent’s attorney to see if there are any issues that the ICE attorney would need addressed in order to agree to a grant. Sometimes on cases with one year filing deadline issues, the IJ or ICE attorney will offer to grant withholding of removal if the applicant agrees to withdraw his application for asylum, as though they are plea bargaining.
Examination of Witnesses
Examination of witnesses is largely the same as in most other courts. The respondent’s attorney offers her case first, conducting direct examination, followed by cross-examination by the Trial Attorney, and then by redirect examination where necessary. Generally, the respondent will testify first. If there are other witnesses (especially expert witnesses, or medical or mental health professionals) with pressing schedules, most IJs will allow them to testify first instead of respondent. Any witnesses (other than the respondent) who have not yet testified must wait outside the court room.
After direct examination, the Trial Attorney will conduct cross-examination, generally focusing on credibility. Trial Attorneys will often cross exam the applicant about the possibility of internal relocation within the home country. The applicant should be prepared to explain why this is not possible. Also, if the applicant experienced harm from non-government actors, the Trial Attorney will almost certainly ask the applicant to explain why she did not seek government protection, or if she did seek government protection how she knows the inadequate response was related to her particular identity.
If the country conditions materials submitted and/or the U.S. State Department report contains information about some improvement in the applicant’s country, or in certain areas of the applicant’s country, she should be prepared to address why that slight improvement does not make her fear less objectively reasonable.
Examination by the Immigration Judge
All the Immigration Judges will usually conduct their own extensive examination, generally after both direct and cross are completed by the attorneys. Some Judges, however, will interrupt direct and cross-examination repeatedly and extensively, which can disrupt the flow of the attorney’s questions and rattle the client. The Judge’s examination can present serious problems, since very often the questions are such that, if they were asked by an attorney in any other court proceeding, they would be subject to strong objections. However, since the Judge is doing the questioning, and typically believes that she has a duty to actively question the respondent, there may be little you can do about it. Where questions are inappropriate or offensive, respondent’s attorney generally attempts to state his objections on the record and makes note of the issue for purposes of an appeal, if necessary. However, the Judge is nonetheless likely to insist that the question is answered anyway.
The Decision of the Immigration Judge
The Judge will generally issue an oral decision on the same day of the hearing. Sometimes, particularly if there is a complex or novel issue of law, the IJ will send a written decision in the mail or schedule a Master Calendar date for the respondent to return for the decision, but these situations are rare. Most often the IJ will read the (long) decision, summarizing the facts, reading boilerplate language about the legal standards for the relief sought, and finally analyzing the facts in light of the law. If the applicant has applied for multiple forms of relief, such as asylum, withholding and CAT, the IJ will ordinarily analyze the facts in light of each standard and determine whether or not the applicant qualifies. It is often impossible to tell until the very end of the oral decision what relief, if any, the applicant has won. When the Immigration Judge issues an oral decision, whether favorable or unfavorable, the respondent receives only a minute order form filled out and signed by the Judge.
Reserving/Waiving Appeal Rights
Once the IJ has read her decision, she will ask both the respondent’s attorney and the ICE attorney whether they reserve or waive their right to appeal. If the respondent loses, he should always reserve his right to appeal. Even if he’s uncertain whether he actually will appeal or not, reserving the right does not mean that he must actually appeal; waiving the right to appeal, however, means just that and the respondent can’t change his mind later. If the respondent wins asylum there is no need for his attorney to reserve the right to appeal. If ICE also waives the right to appeal, then the decision is final. If ICE reserves its right to appeal, the respondent will not know for 30 days whether or not the decision is final. If the IJ denies asylum but grants withholding, respondent may decide to appeal. The IJ will give both attorneys a pre-printed order form which will either order removal, or state the form of relief granted, as well as whether or not appeal rights were reserved. This form may be individual’s only proof of immigration status until he receives a new I-94 or employment authorization document in the future.