EOIR/AILA Liaison Meeting
March 7, 2002
Asylum
RESPONSE: The Immigration and Naturalization Service (INS) is charged with keeping track of the conditional asylum grants based on coercive population control policies. At the end of each fiscal year, the Immigration Judges, the Board of Immigration Appeals (Board), and the INS asylum offices around the country, each report their conditional grants of asylum to the Asylum Office at INS headquarters. The Asylum Office ranks the aliens chronologically based on the date of the conditional asylum grant and assigns to the first 1,000 aliens on the list an authorization number in conformance with the cap of no more than 1,000 grants of asylum per fiscal year based on coercive population control policies. The waiting list has become longer than one year, and INS needs to re-check fingerprints for aliens on the waiting list. INS has already sent out notices to the next 2,000 aliens on the waiting list asking them to submit new fingerprint cards. When those have been examined and cleared, INS will send a notice to each alien or his or her attorney advising that the conditional status of the asylum grant has been lifted, and the alien is now fully eligible for all asylum benefits. This question was previously answered at the March 2001 Liaison Meeting. Please see EOIR's answer at: http://www.usdoj.gov/eoir/statspub/eoirailaMarch01.htm.
RESPONSE: The public can also check the EOIR web site for more information. Under News and Information, there is a June 5, 2001, press release announcing the issuance of notices to aliens who received conditional grants of asylum between March 19, 1999, to August 4, 1999. For a copy of EOIR's press release please see: http://www.usdoj.gov/eoir/press/01/cpcasylum01.htm.
RESPONSE: If the case is appealed to the Board, and the Board grants conditional asylum, the alien's place in line is determined by the date of the Board decision. When there is an appeal from the decision of an Immigration Judge, the Immigration Judge's decision is not deemed final. 8 C.F.R. § 3.39. An individual is considered to have a conditional grant of asylum as of the date of the final agency decision.
RESPONSE: As mentioned above, the cutoff dates are posted on both the EOIR and the INS web sites.
RESPONSE: All continuances must be accurately assigned to the appropriate requesting party. The clock is tolled (stopped) for any alien caused delay. The clock remains stopped for the total number of days during which the delay continues. Immigration Judges must continue to give due consideration to requests from all parties for adequate time to prepare and to present their cases at the individual hearing. For further guidance on this issue, please see the Office of the Chief Immigration Judge's Operating Policy and Procedures Memorandum at http://www.usdoj.gov/eoir/efoia/ocij/OPPMLG2.htm.
EOIR will not require Immigration Judges to make formal findings on the record when the "clock" is stopped. However, if a party wishes to know whether his or her action will stop the clock, the party should inquire at the time of the action. If there is a question regarding the clock, please contact the Court Administrator. If the issue cannot be resolved at that level, then you may contact Loreto Geisse, Counsel to the Chief Immigration Judge, at: (703)305-1247.
Issues of Misconduct
RESPONSE: The Office of the General Counsel (OGC) has pursued three (3) disciplinary cases which originated from complaints filed with OGC. Two cases involved complaints lodged by Immigration Judges. The third case was initiated by OGC after discovering that the attorney has continued to practice before EOIR after she had been immediately suspended by the Board. One case resulted in the issuance of a warning letter, another resulted in the issuance of an informal admonition, and the third resulted in a suspension of one (1) year.
RESPONSE: EOIR would not necessarily know if an EOIR employee had filed a complaint with the Office of Professional Responsibility (OPR) concerning an INS attorney. EOIR employees can file complaints directly with OPR and are not required to notify EOIR officials. In the course of investigating a complaint, OPR may contact the Immigration Judge or the Office of the Chief Immigration Judge with questions about the complaint filed. However, confidentiality prevents us from disclosing any details.
RESPONSE: The OCIJ takes all complaints against Immigration Judges very seriously, particularly those impugning the integrity of the hearing process. A complaint against an Immigration Judge may be filed with OCIJ, and it may later be referred to OPR. A complaint can also be filed directly with OPR. Any action taken by either OCIJ or OPR may be considered confidential. OCIJ does not disclose any action taken against an employee. However, OPR may disclose disciplinary action taken against a Department employee in limited circumstances and only when such a disclosure would not violate the employee's privacy interests.
RESPONSE: The OCIJ does not keep statistics on this.
RESPONSE: The OCIJ makes a great effort to investigate all complaints, regardless of whether the complaint would qualify as a violation of the EOIR Ethics Manual. AILA is reminded that the Department of Justice's Office of Professional Responsibility also accepts complaints against Immigration Judges. For specific examples of what constitutes misconduct please see Title 5, Part 2635 of the Code of Federal Regulations.
RESPONSE: Each complaint is unique as it involves a separate set of circumstances, so there is no "common pattern" that can be readily identified. However, the OCIJ notes that some complainants seem to confuse an objection or disagreement with an Immigration Judge's ruling on a legal issue with an objection to the Immigration Judge's conduct resulting in a violation of ethical or professional responsibility codes. Objections to legal issues need to be made on appeal to the Board.
RESPONSE: It is not possible to generalize or give advisory opinions, because all complaints that are received by OCIJ are reviewed and decided on a case-by-case basis. For complaints that are legal, rather than ethical, in nature, please appeal them to the Board of Immigration Appeals. Moreover, each complaint may be considered confidential, and thus not subject to disclosure to the public.
RESPONSE: Neither the statue or the regulations require that an Immigration Judge rule on the issue of deportability prior to having the alien file an application for relief.
RESPONSE: None. See response to question 6(a) above.
Immigration Court Administration
RESPONSE: The National Association of Judges is an independent organization and does not speak for the agency. The union's proposal is similar to legislation introduced regularly over the past twenty years. The EOIR opposes this position for several reasons. The efficient administration of our immigration system depends on the fact that all aspects are housed in the Department of Justice. The Board of Immigration Appeals and the Immigration Courts exercise the authority of the Attorney General as administrative tribunals to assist him in carrying out his duties under the INA. Serious problems could arise should the adjudication of immigration cases be removed from the Department of Justice. For example, it is critical for the Attorney General to be able to manage the process in the area of immigration emergency planning.
RESPONSE: The Office of the Chief Immigration Judge has an administrative control list, which outlines Immigration Court jurisdiction over details cities and IHP sites. The administrative control list is available on the EOIR web site at: www.usdoj.gov/eoir/vll/courts3.html. The local rules for all courts, including detail sites are available on the EOIR web site at: http://www.usdoj.gov/eoir/efoia/ocij/locopproc.htm .
RESPONSE: The OCIJ is always reviewing its caseload, to determine where details are needed. This year, we have added regular details to Memphis, Atlanta, Orlando, San Antonio and Bradenton to assist with the increased caseload in these Courts. The OCIJ has also hired judges for Atlanta, Orlando, Memphis, and Hartford.
RESPONSE: The INS does not file any NTA electronically anywhere in the country. INS has been involved in the Interactive Scheduling System (ISS) which permits them to access EOIR calendars for scheduling purposes. However, no items are filed through the ISS.
RESPONSE: Under the Creppy directive, the practice of the Immigration Courts has been to hold closed hearings in "special interest" cases, until law enforcement officials responsible for the terrorism investigations indicate that they no longer have an investigative interest in the alien.
Board Issues
RESPONSE: Given that we are in a comment period for this proposed rule, EOIR cannot respond specifically to this question at this time. Public comments are due by March 21, 2002. We look forward to receiving any comments that AILA may have.
RESPONSE:
RESPONSE: Four cases were certified to the Attorney General last year, all of which were at his direction.
None of the four decisions were precedents. We do not know the exact number of cases certified at the direction of the Attorney General in the past ten years. Finally, there is no set criteria for which cases are certified to the Attorney General. The circumstances under which a case may be referred to the Attorney General are stated in 8 C.F.R. § 3.1(h).
What is the current staffing level of the BIA? Are there openings remaining to be filled? Has the position of Chair been filled on a permanent basis? Do you anticipate any announcements concerning BIA staffing in the near future?
RESPONSE: There are presently 19 members serving on the Board under the current regulations, however, the proposed regulation would reduce the number of Board Members to 11. Accordingly, there are no plans for announcements of new positions. Lori Scialabba continues to serve as the Acting Chairman.
When counsel learned of the removal and sought help from INS counsel, the Service responded by urging the removal as grounds in a Motion to Dismiss the appeal. Without awaiting a response from counsel, the Board immediately acted to dismiss the appeal for lack of jurisdiction. The case is now pending in federal courts.
Cases of unlawful removal are thankfully rare, but certainly not so rare as to make the Houston case unique. As you are aware, we have raised the possibility of amending EOIR regulations to permit the BIA to retain jurisdiction in cases where the respondent has voluntarily departed the United States. This issue is admittedly complex and therefore, still under consideration between AILA and EOIR. The recent case from Houston raises a simpler, more limited question that can hopefully be addressed in the interim: Does the BIA retain jurisdiction where the respondent has been unlawfully removed by INS while a direct appeal is pending before the BIA, or during the 30-day appeal period where the respondent has reserved appeal? If not, will EOIR consider a limited amendment to the regulations permitting the Board to retain jurisdiction in such cases?
Such an amendment would operate to protect the Board's jurisdiction where it has been properly and timely invoked.
RESPONSE: The legal issue of the Board's jurisdiction following the removal of an alien from the United States can only be addressed in the context of a case adjudication by the Board. The Department does not presently have plans to expand the Board's jurisdiction to include aliens who are outside of the United States.
RESPONSE: Procedural or ministerial matters such as uncontested motions and withdrawals of appeals are screened and forwarded to the Board's streamlining panel for adjudication and accordingly are handled in quick fashion in the vast majority of cases. There is no need for counsel to identify them as an expedited matter other than to clearly identify the type of motion or other matter being filed with the Board. In the rare circumstance that such a matter has not been adjudicated in a timely fashion, counsel may file a motion to expedite with the Board, pointing out that the matter is uncontested or otherwise procedural or ministerial in nature.
RESPONSE: For cases that have been briefed before the St. Cyr decision, counsel should file a motion to remand with the Board if INA section 212(c) eligibility is not already an issue on appeal. If section 212(c) eligibility is already an issue, the Board will consider St. Cyr in determining eligibility and whether the case should be remanded, but it may be to the alien's benefit if a supplemental brief is filed to point out how St. Cyr now makes the previously ineligible alien eligible for relief.
For those cases in which a brief has not been filed, and section 212(c) relief was found unavailable before the Immigration Judge, counsel should file a brief with appropriate arguments as to why St. Cyr now renders the alien eligible for relief so as to warrant a remand. A brief is required to ensure that section 212(c) relief is made an issue on appeal. Also, if the Notice of Appeal stated that a brief would be filed, the failure to do so may subject the appeal to summary dismissal. The Board, in response to untimely motions filed as a result of St. Cyr, 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 that 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.
A regulation in response to the St. Cyr decision is being developed and is under consideration at the Department. It is unclear when the regulation may be published.
RESPONSE: The Board will apply G-Y-R- as appropriate when adjudicating any appeal from an Immigration Judge's denial of a motion to rescind. Counsel is welcome to file a supplemental brief discussing G-Y-R-. If a motion to reconsider before the Board based on G-Y-R- is untimely, counsel may request that the Board reopen sua sponte, and the Board will consider the request when adjudicating the motion.
RESPONSE: Either party can raise issues on appeal. However, this is to be distinguished from challenging (appealing) an Immigration Judge's ruling on removability or his or her determination whether to grant or deny relief from removal. A Notice of Appeal must be filed in a timely manner in order to appeal the judge's ruling on removability or decision on relief. For example, if an Immigration Judge grants cancellation of removal but denies asylum (or vice-versa) and the INS reserves the right to appeal, it is incumbent upon the alien to file a timely appeal if he wishes to preserve his right to challenge the denial of the one form of relief. If the INS later declines to appeal, the alien may file a motion to withdraw his or her appeal. In light of this course of action being available to the alien, EOIR does not believe an amendment to the regulations is necessary, particularly where there is no evidence of widespread difficulties under current practices.
Miscellaneous
RESPONSE: The EOIR has taken this issue under advisement. We are unable to provide an answer at this time.
RESPONSE: EOIR orders speak for themselves, and an Immigration Judge's signature is all that is required to verify that it is a true order. Moreover, we do not have the staff resources to certify all of our orders. EOIR documents are not identity documents, and should not be used as such, particularly since an EOIR order does not state on its face whether the case is on appeal, and hence final. Instead, please refer this question to the INS for resolution, as it is the INS that is charged with the responsibility of issuing documents verifying that an alien is in proper legal status. This was previously discussed during our March 22, 2001 and November 29, 2001, liaison meetings. Please seehttp://www.usdoj.gov/eoir/statspub/eoirailaMarch01.htm and http://www.usdoj.gov/eoir/statspub/eoiraila0111.htm for the previous questions and answers.
RESPONSE: The OCIJ will not print out extra copies of the hearing notice, as notice to the alien or his representative is sufficient, and OCIJ does not have the resources to provide additional notices.
RESPONSE: The guidelines for withdrawal of counsel are located at 8 C.F.R. §§ 3.17(b) and 292.4. For further guidance, please see Matter of Rosales, 19 I&N Dec. 655 (1988), which discusses withdrawal of counsel and conditional withdrawals (including hearing notices).
RESPONSE: Since the last AILA/EOIR liaison meeting there have not been any further developments on this issue.
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