EOIR/AILA LIAISON MEETING AGENDA QUESTIONS
November 29, 2001
Immigrant Petitions in Proceedings
Response: As previously stated in the last liaison meeting held on March 22, 2001, (See http://www.usdoj.gov/eoir/statspub/eoirailaMarch01.htm ), with respect to detained cases, the OCIJ and the INS have worked out an informal agreement that the INS will "look into" those cases which have been continued for over 90 days as a result of the delay in adjudication of the I-130 or I-140 petitions. There has not yet been a final determination on how to address non-detained cases. The OCIJ is seeking a formal written agreement with the INS on the detained and non-detained cases, but to date, the INS has not responded to the OCIJ proposal. With respect to continuances, please refer to 8 C.F.R. 3.29 (2001) as well applicable case law, regarding the circumstances under which an Immigration Judge can grant a continuance.
Response: The EOIR has taken an active role by seeking a formal written agreement with the INS. See response to question (1)(a) above. Beyond seeking a formal written agreement with INS, the EOIR does not plan to take any further steps in this regard.
Response: The regulations located at 8 C.F.R. 3.31(c) state that filing deadlines may be set. However, the regulations do not permit Immigration Judges to establish deadlines for the INS to adjudicate petitions. Moreover, 8 C.F.R. 3.31(c) only relates to applications, related documents (and answers to these documents) which "are to be considered in a proceeding before an Immigration Judge." See 8 C.F.R. 3.31(a). Since Immigration Judges do not have jurisdiction to adjudicate or consider I-130 petitions, they therefore have no authority to order the INS to adjudicate the petitions by a specified deadline.
Respondents who enter into marriages after initiation of proceedings often are refused continuances due to the rebuttable presumption of fraud. While the majority of these petitions are approved, the combination of INS inaction and failure to continue a case leads to a cluttered BIA docket and increased administrative costs associated with adjudicating motions to remand.
Response: An alien is not eligible to adjust his or her status until there is an approved I-130 petition. Thus, any determination relating to a marriage would be premature and not within the Immigration Judge's jurisdiction.
Response:If the OCIJ and the INS enter into an agreement on the issue of the adjudication of I-130s (see response to question (1)), the OCIJ does not anticipate that the agreement would differentiate among the various circumstances under which an I-130 is filed.
Board and Court Procedures
Response: It is the Board of Immigration Appeal's (Board) practice to forward any correspondence, including a brief, to the case file as soon as it is received. The case files are tracked through bar coding and scanning to each new location, and inventories of our approximately 56,000 case files are undertaken quarterly to ensure the location of all files. In rare circumstances, the Board's staff will discover a brief or other piece of correspondence that was not associated with the file in a timely manner, and in such instances the Board will take action on its own motion, including reopening and issuing a new decision where appropriate.
Response: The Board is taking this question under advisement and will examine the matter further.
Under what circumstances does a clerk have the authority to reject a tendered document before it reaches a Board Member or Immigration Judge? Are there internal guidelines for the clerical staff in making these decisions, and, if so, can AILA be furnished with a copy of these guidelines? If an attorney believes a document has been wrongfully rejected by a clerk, how can this be redressed?
Response: With respect to the Immigration Courts, clerks are authorized to reject any filings that do not comply with the regulations or local operating procedures (e.g., no certificate of service, incorrect number of copies, untimely, etc.). The Uniform Docketing System Manual, as well as various Operational Policy and Procedures Memoranda (http://www.usdoj.gov/eoir/efoia/ocij/OPPMLG2.htm), offer guidance to Immigration Court staff regarding when and how to accept filings. Many of these documents are available on the EOIR web site. The Uniform Docketing System Manual is not currently available on the EOIR website, but may be made available by making a FOIA request. Moreover, if an attorney believes a document has been wrongfully rejected, he or she can contact the appropriate Court Administrator.
The Board's clerical staff is authorized to reject documents that do not meet regulatory requirements such as documents lacking a certificate of service, documents not accompanied by a fee receipt, and briefs that are not timely filed. Following the regulations, and as authorized in the BIA Practice Manual, the Board does not accept such documents in any circumstance, and as such, there is no need for Board Member review. Please note that the clerical staff rejects untimely briefs out of hand only where there is no motion to accept the late-filed brief accompanying the document. Any such motion will be considered by a Board Member. Even where there is no justification given for the late brief, the Clerk's Office rejection notice informs the party that the brief may be resubmitted with a motion to accept it as late, which will be considered by a Board Member.
Response: The Board currently has a pending caseload of approximately 56,000 cases, and we now receive 28,000 to 30,000 additional appeals or motions each year. This may result in some delays in adjudication. The Board presently has an entire panel of Board Members and staff attorneys dedicated to adjudicating its oldest cases.
The Board presently issues briefing schedules soon after the transcript and the Immigration Judge's decision are available. Other than non-detained case appeals, it is the Board's goal to adjudicate all other appeals and motions filed on or after January 1, 2001, within 180 days of receipt, or within 180 days of receipt of the file with respect to appeals of INS decisions. A percentage of the more current non-detained case appeals are adjudicated more quickly than others, either because they fall within the categories of cases appropriate for single-Board Member review (streamlined decisions), such as appeals with unopposed motions to remand, or because they were adjudicated in order to provide guidance on current immigration issues.
Any party can request that review of a case before the Board be expedited by filing a motion to expedite with the Board. No fee is required for this motion. Both the INS and the private bar file such motions on occasion. The BIA Practice Manual contains guidelines for filing such expedited requests.
See BIA Practice Manual (Chapter 6.5 Expedite Requests).
Such certifications are needed, for example, for proof of residence status when an I-485 is approved but it takes the INS months to process and the individual has no evidence of lawful status, or when the individual goes to the Consulate and the Consulate requests certified orders of voluntary departure or proof that there was no record that the NTA was filed.
Response:The EOIR currently certifies records upon request by Federal agencies for appellate review. It is the duty of Federal litigators (e.g., the Office of Immigration Litigation, United States Attorneys) to provide copies of the administrative record below to the appellate court and to opposing counsel. Fed.R.App.P.17. Federal litigators are subject to sanctions if they fail to comply with this court directive.
Upon request, the EOIR, in accordance with the Freedom of Information Act (FOIA), provides complete and unredacted copies of records in two cases: (1) when the subject of the record is the requester; and (2) when a third-party request is accompanied by permission from the subject of the record. For further information regarding FOIA requests to the EOIR, please see http://www.usdoj.gov/eoir/newsinfo.htm. In addition, copies of some documents contained in Records of Proceedings may be obtained by requests made to individual Immigration Courts and the Board's Clerk's Office. Procedures regarding obtaining documents from the Board are outlined in the BIA Practice Manual. Where a legitimate need exists, the Office of the General Counsel has in the past and continues to provide affidavits attesting to the existence or nonexistence of certain documents (e.g., where an NTA has not been filed or where no appeal is pending).
The situations highlighted in AILA's question do not appear to require a certified copy of an order or a certified copy of the record. The INS and the Department of State should both accept EOIR orders at face value without the need for certification. The EOIR is open to further discussion on this issue regarding any additional needs immigration practitioners may have and is willing to address any issues regarding the recognition of EOIR's orders with other Federal entities.
Response: Immigration Judges do not have authority to order the INS to release an alien from shackles. That is the ultimate decision of the INS, which is responsible for the safety and security of the alien, since it has authority over the alien's detention. This authority rests with the INS.According to the INS Enforcement Standard for the Use of Restraints, the policy on the use of restraints for detainees is discretionary, based on various factors, and may vary from one location to another. As explained to the EOIR Office of Security by an INS Supervisory Detention Officer, INS Detention Officers and/or contract guards escorting detainees to immigration hearings do not relinquish their custodial responsibility to the Court and they are not obligated to remove restraints should an Immigration Judge request they do so. While it may appear that more latitude can be given when a hearing is conducted in a detained setting versus a regular Immigration Court, the final decision to remove a detainee's restraints rests with the INS representative and not the Immigration Court.
Response:The OCIJ is taking this issue under advisement and is examining this issue further. Therefore, the OCIJ is unable to provide a response at this time.
Response:This question was previously raised with the Assistant Chief Immigration Judge for Krome, who investigated the allegations, and found that the Krome Judges do not hold this position. Aliens are entitled to interpretation of all their hearings, whether they are represented or pro se. However, at the first master calendar hearing there may not be an interpreter available for an alien, because the Court does not have advance notice of what language the alien speaks or because a telephonic interpreter is not available. If an interpreter is not available, the case should be continued. Once the language is verified, the alien should have an interpreter available at all subsequent hearings.
Response:Procedures for filing documents with the individual Immigration Courts (which are also applicable to detail courts) are determined by Local Operating Procedures (LOPs). The LOPs for each Immigration Court (including base cities) are available on the EOIR web site, as well as on the individual Immigration Court's web site. See http://www.usdoj.gov/eoir/sibpages/ICadr.htm. If this problem continues, please contact the appropriate Court Administrator.
September 11 Aftermath
Response: If an attorney is concerned regarding the opening/closing of an Immigration Court, he or she can contact the Court the day of the hearing to verify if the Court will be open. Information regarding specific Immigration Courts is available to the public on the EOIR website, as well as each local Immigration Court's website. With respect to the closings on September 11, the OCIJ provided updated information on the website. The Immigration Courts make every effort to contact parties whenever possible; however, unforseen emergencies do occur.
Response: Although the OCIJ and the Board do have the capacity to generate lists of cases by attorney of record, they do not have the resources to do this. Rather, the OCIJ and the Board view this as the responsibility of the individual attorney to keep track of his or her cases.
In light of the WTC tragedies, however, the OCIJ and the Board will assist attorneys -- who can establish that his or her office or records have been destroyed or are inaccessible as a result of the September 11th attacks -- in identifying those cases in which he or she is the attorney of record. Attorneys requesting this information must submit a letter to the appropriate Court Administrator, or the Chief Clerk of the Board, requesting a list of all the cases in which he or she is the attorney of record. The letter must also contain appropriate documentation or evidence establishing that the attorney's records or office have been destroyed or are inaccessible as a result of the September 11th attacks.
Once the attorney has a list of his or her cases, if he or she does not have an extraordinary number of cases and can demonstrate immediate need for reconstructed files, requests for such files may be made directly with the Immigration Court. In instances where an immediate need is not demonstrated or where an extraordinary number of reconstructed case files are requested, negatively impacting the Immigration Court's operations, attorneys should file a FOIA request.
The Board unfortunately does not have the resources to promptly respond to requests for all of the records of proceedings involving attorneys whose offices may have been affected by the World Trade Center attack. For this reason, affected attorneys wishing to reconstruct their files should file a FOIA request with EOIR's Office of the General Counsel, which has a unit dedicated to reviewing, and where appropriate, reconstructing files as promptly as possible. The FOIA unit will also consider requests to expedite based on exigent circumstances.
Response: The heightened level of security implemented since the September 11th attacks has not significantly restricted Respondents from accessing Federal facilities. Immigration Courts are located in a variety of facilities including Federal buildings, commercial office buildings, and Federal, State, or local detention facilities. The organization responsible for building security in each type of facility ultimately decides under what circumstances the public will have access to the buildings.For example, in Federal buildings and detention facilities, this could be the Federal Protective Service, the United States Marshals Service, the INS or the BOP. Other responsible organizations could include State or local detention agencies, or the landlord of the commercial building.
Court Administrators usually work with building security (Federal Protective Service) to ensure that Respondents have access to Immigration Courts in Federal facilities. In many cases, it has been agreed that Respondents not having government or photo identification may use their 'Notice to Appear' to establish their bona-fides to be at the Court. With the exception of undergoing enhanced security screening, Respondents are not restricted from visiting Immigration Courts located in commercial buildings. The EOIR is unaware of any policy that restricts applicants of "certain" nationalities from being refused admission to any Immigration Court, whether in a Federal or commercial building, or of any court relocating hearing space to inadequate facilities based upon security grounds.
Chief Immigration Judge Creppy has advised all the Immigration Court personnel, including Immigration Judges, to be sensitive to situations where there have been resulting delays as a result of the September 11th attacks and subsequent heightened security, including encouraging the use of discretionary tools such as continuances when the situation warrants it.
Response:The EOIR has provided to AILA the list of INS detainees which was released on November 26, 2001, and a copy of the instructions from the Chief Immigration Judge to the Immigration Judges regarding the procedures in these cases.
Response: If an attorney wishes to know if a conversation is "on the record", he or she should ask the Immigration Judge. The attorney may request that the Immigration Judge record a conversation, or the attorney may attempt to memorialize the conversation after the parties go back on the record.
Response: Every year at the Immigration Judges' conference, the Immigration Judges are given a session on judicial conduct and ethics. Additionally, all Immigration Judges have received a copy of the Ethics Manual containing guidance on these issues which was jointly drafted by representatives from OPR, EOIR, and the Department's Ethics Office. See http://www.usdoj.gov/eoir/statspub.htm . If an attorney is concerned regarding the conduct of a particular Immigration Judge, he or she should contact the Immigration Judge's Assistant Chief Immigration Judge and/or the Office of Professional Responsibility (OPR) of the Department of Justice. Information about regarding OPR is available on the Department of Justice website, http://www.usdoj.gov.
Disciplinary Rules
Response: The regulations permit the discipline of a practitioner "who has been disbarred or suspended on an interim or final basis by, or has resigned with an admission of misconduct from, the highest court of any state, possession, territory, commonwealth, or the District of Columbia, or any Federal court." Thus, discipline by the licensing state authority is not a prerequisite for the issuance of a Notice of Intent to Discipline. Professional misconduct before a Federal court is of no less concern than misconduct before a state or administrative court. The fact that a practitioner's misconduct did not occur in a proceeding before the EOIR or the INS is not relevant; the only requirement is that the misconduct violates one of the grounds for discipline.
However, the EOIR Office of the General Counsel has the discretion to review each case individually and determine, based on the type of misconduct that has occurred, whether or not to pursue reciprocal discipline. In a situation where a Federal court takes disciplinary action prior to the state bar initiating disciplinary proceedings, the EOIR would not want to be required to wait until after the state had brought its own action to completion before the EOIR could move forward with its own case. Likewise, a state bar may also decide not to pursue a disciplinary case based on a Federal court disciplinary order - that decision would be considered in the Office of the General Counsel's exercise of discretion.
Notices to Appear
Response: Any reasoning or explanation behind this regulatory change would be in the supplementary information to the regulation which was published in the Federal Register at the time the regulation was amended. At 62 Fed. Reg. 10322-23, there is a reference to the INS's ability to control when charging documents are filed and to manage its resources. The public, including AILA, had an opportunity to submit comments regarding this change at the time the change was proposed.
Response: The EOIR is unable to provide a response to this question, since the agency does not provide advisory opinions regarding regulatory provisions.
Response: It is within the prosecutorial discretion of the INS to determine the appropriate time to file a charging document with the Immigration Court. The EOIR cannot comment on INS policy and procedures regarding the filing of charging documents with the Immigration Courts.
Response: Please see EOIR's response to question 19(b) above. In addition, the EOIR notes that 8 C.F.R. 3.15(d) requires the alien to notify the Immigration Court if the charging document he or she receives does not contain an address or contains an incorrect address.
Response: Any requests for amendment of the regulations to prevent the filing of stale NTAs should be directed to the INS, which both issues the NTA and has the prosecutorial discretion to determine when to file the NTA with the Immigration Court.
Motions
Response: A regulation in response to the Supreme Court decision in INS v. St. Cyr is currently being developed, therefore the EOIR is unable to comment regarding any specific aspects of that regulation. Currently, in response to the Supreme Court decision, the Board is reopening proceedings on its own motion and remanding cases to the Immigration Judge for consideration of an application for section 212(c) relief when it appears the applicant has remained in the country and was eligible at the time of the final administrative order under the rules set forth in the St. Cyr decision.
Response: Under the current regulations, general motions to reopen, even if they are jointly filed, require a fee, under the theory that the case has already been adjudicated and it is an administrative burden (with added costs) to the Federal government to reopen the case. A fee is required from the Respondent because it is the individual or his or her representative who is physically filing the motion and who is seeking a benefit or relief that accrues to the individual, and not the INS.
Will EOIR consider implementing procedures to inform and protect these Respondents by responding to venue-triggering changes of address with information on the availability and requirements for a properly filed Motion to Change Venue?
Response: The EOIR is discussing the possibility of revising the Change of Address Forms to include a reminder to aliens that filing the Change of Address form does not automatically change venue, and to inform the alien of the requirements and procedures to follow in order to request a change of venue.
Miscellaneous
Response: The Office of Immigration Litigation (OIL) has both affirmative and defensive litigation responsibilities. It represents the INS, the Department of State, and other agencies (including the EOIR) that regulate the movement of aliens across and within the borders of the United States.
Although they are separate entities, both the EOIR and the INS are part of the Department of Justice and therefore are subject to the ultimate authority of the Attorney General. For example, because the Attorney General has expressly delegated to the Board the authority to exercise such discretion and authority that has been conferred upon him by law, a decision issued by the Board is regarded as a decision by the Attorney General himself, and is binding on all officers and employees of the INS, except as it may be modified or overruled by the Attorney General or the Board. See 8 C.F.R. 3.1(d)(1), (g) (2001). Similarly, regulations promulgated by the Department are binding on all Department entities, including the INS, the Board, and OIL. In sum, because both the INS and EOIR ultimately represent the interests and carry out the tasks of the Attorney General, OIL represents both the EOIR and INS in Federal Court as delegates of the Attorney General.
Response: Yes. The current "Recognition and Accreditation Roster" is available on the EOIR internet website at : http://www.usdoj.gov/eoir/statspub/raroster.htm. This list is updated quarterly and contains alphabetical listings of both recognized organizations and accredited individuals.
Response: The EOIR's database does not track the grounds for denial of asylum applications. Currently, there are no plans to capture and track this information.
Response: The EOIR is holding preliminary meetings internally to discuss the feasibility of implementing electronic filing at EOIR. In early 2002, the EOIR plans to meet with outside parties to discuss this issue.