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Immigration Law

Youman, Madeo & Fasano, LLP

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Practicing before immigration courts and understanding its structure:

On Behalf of | May 20, 2014 | Uncategorized

Immigration cases are litigated before the Department of Justice’s Executive Office for Immigration Review (EOIR). Any non-citizen who has committed an immigration law violation will be placed before an Immigration Judge after service of a Form I-862, Notice to Appear, NTA. An NTA is drafted by the Department of Homeland Security, DHS, and alleges why an individual is inadmissible or deportable under the Immigration and Nationality Act, INA, the legal authority under which the proceedings are conducted, the acts or conduct alleged to be in violation of the law and the charges against the alien. The grounds of inadmissibility and deportability are found under 8 U.S.C. §1182, INA §212 and 8 U.S.C. §1227, INA §237.

The function of EOIR is to decide whether non-citizens should be ordered removed from the United States or should be granted relief or protection from removal and be permitted to remain in the United States. Immigration Judges are part of EOIR’s Office of the Chief Immigration Judge (OCIJ) that is composed of more than 235 Immigration Judges, IJs, who conduct administrative court proceedings, called removal proceedings, in 59 immigration courts nationwide.

Appeals of IJ decisions are taken up to EOIR’s Board of Immigration Appeals (BIA). Certain BIA decisions that the BIA designates as precedent decisions apply to immigration cases nationwide. The BIA is the highest administrative tribunal for interpreting and applying U.S. immigration law. However, the Attorney General has the authority to certify a BIA decision to himself and unilaterally overturn a BIA precedent decision or make a new precedent ruling.

EOIR’s third component, the Office of the Chief Administrative Hearing Officer (OCAHO), hears cases that do not relate to removal proceedings; they relate to employer sanctions for illegal hiring of unauthorized workers, document fraud, and unfair immigration-related employment practices.

The function of IJs:

IJ’s make factual and legal findings in the removal proceedings they oversee. Once an NTA is filed with the Immigration Court, IJ’s control their calendar under strict guidelines imposed on them by the Office of Chief Counsel via the Immigration Court Practice Manual. Prior to the issuance of the Immigration Court Practice Manual, deadlines, the manner in which documents were submitted for consideration to an IJ and the general practice before immigration courts was controlled by the local rules of immigration courts and by an IJ’s own rules. For the most part, there was no uniformity between Immigration Court’s set in different venues. On July 1, 2008, the Immigration Court Practice Manual, prepared by the Office of the Chief Immigration Judge of the Executive Office for Immigration Review, was issued and it now governs the practice in all Immigration Courts, regardless of venue. If a lawyer intends to practice before EOIR, he or she must have a command of the Practice Manual. The Practice Manual is available on EOIR’s website.

There are three bodies of law that dictate the adjudication of cases before EOIR: the Immigration and Nationality Act, federal regulations, and precedent decisions of the Board of Immigration Appeals and of the federal circuit courts of appeal. Generally, immigration judges determine removability and adjudicate applications for relief from removal. There are 12 types of immigration proceedings conducted by immigration judges: (1) removal; (2) deportation; (3) bond redetermination; (4) asylum-only hearings; (5) credible fear hearings; (6) exclusion hearings; (7) withholding of removal-only hearings; (8) reasonable fear hearings; (9) claimed status review hearings; (10) NACARA-only hearings; (11) rescission of lawful permanent residence hearings; and (12) continued detention review hearings.

After the NTA is filed with the Immigration Court, the IJ controls his or her calendar under guidelines established by the Practice manual and OCIJ. Call up dates for evidence, status conferences and Individual Merits Hearings are scheduled within the discretion of the IJ so long as they do not run afoul of mandatory deadlines mandated by the Practice Manual or OCIJ.

The government, DHS, is represented by an Assistant Chief Counsel, otherwise known as a Trial Attorney. The DHS attorney represents the government and seeks to prove that the individual should be removed from the United States. The individual in removal proceedings may, at his/her own expense, seek an attorney or other authorized legal representative.

Removal proceedings begin with a “master calendar” hearing, where the IJ ensures the individual understands the alleged immigration law violations. Pursuant to regulation and case law, the IJ must provide the alien with a list of free or low cost legal services. Interpreters are provided at Individual Hearings, at no expense to the individual. Individual Hearings are the dates on which applications are considered and decided on the merits. On an individual or merits hearing date, the applicant has the burden to establish that he or she is eligible for relief from removal. The various applications that an IJ may consider are cancellation of removal, adjustment of status, asylum, or other remedies provided by immigration law.

Other Hearings and Reviews:

While immigration judges usually conduct removal proceedings, they may also conduct the following hearings and reviews:

  • Bond Redetermination Hearings — to determine whether to lower or eliminate the amount of a bond set by DHS for an individual detained by DHS. The detained individual makes a request for a bond redetermination hearing to the immigration judge. These hearings are generally informal and are not part of the removal proceedings.
  • Rescission Hearing — to determine whether a lawful permanent resident should have his/her residency status rescinded because he/she was not entitled to it when it was granted.
  • Withholding-Only Hearing — to determine whether an individual who has been ordered removed is eligible for withholding of removal under Section 241(b)(3) of the Immigration and Nationality Act or under the Convention Against Torture.
  • Asylum-Only Hearing — to determine whether certain individuals who are not entitled to a removal hearing (crewmen, stowaways, Visa Waiver Pilot Program beneficiaries, and those ordered removed from the United States on security grounds) but claim a well-founded fear of persecution in their home country are eligible for asylum.
  • Credible Fear Review — to determine whether an individual in expedited removal has a credible fear of persecution or torture.[1] Expedited removal allows DHS to remove certain individuals from the United States without placing them in removal proceedings.
  • Reasonable Fear Review — to determine whether an individual in expedited removal, who has been previously removed from the United States, has a reasonable fear of persecution or torture.[2]
  • Claimed Status Review — to determine whether an individual in expedited removal has a valid claim to U.S. citizenship, lawful permanent residency, refugee or asylum status, when the individual claims under oath to have such status.
  • In Absentia Hearing — to determine whether an individual who does not appear for a scheduled hearing may be ordered removed in his/her absence, which is called in absentia. The immigration judge will order an individual removed in absentia if DHS establishes by clear, unequivocal and convincing evidence that the individual is removable, and that DHS served the individual with a written notice to appear for the hearing that included information on the consequences of being absent for a hearing.

Immigration Judge Decisions

At the conclusion of the case, the IJ usually issues an oral decision, but on occasion will issue a written decision sometime after the hearing. IJ decisions are made on a case-by-case basis according to U.S. immigration law, regulations and precedent decisions. When the IJ grants the individual relief from removal, the individual may remain in the United States, sometimes temporarily and sometimes permanently. When the IJ orders the individual removed, DHS may remove the individual from the United States. However, an IJ’s decision may not be the final decision in the case because both parties have the opportunity to appeal an IJ’s decision in removal proceedings and in the other hearings and reviews specified above.

Appeals of Immigration Judge Decisions — BIA Review

Within 30 days of the IJ’s decision, either party or both parties may appeal the IJ’s decision to the BIA. The BIA decides the appeal by conducting a “paper” or record review; the BIA, generally, does not conduct courtroom hearings, though it may hold oral argument in selected cases.

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