3/23/2015
Motions in
Immigration Court
and Immigration
Court Practice
Rules
Presenters
• Sarah Bronstein, CLINIC
– [email protected]
• Martin Gauto, CLINIC
– [email protected]
@ li i l l
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Upcoming Webinars
• April 1: UAC Asylum Proceedings before
USCIS
• April 29: UAC SIJS Proceedings before
USCIS
• Recorded webinars available here:
https://cliniclegal.org/resources/orrejwwebinar-series
Agenda
• Immigration court practice rules
• Motions in immigration court
IMMIGRATION COURT
PRACTICE RULES
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Immigration Court Practice Manual
• Located on the EOIR Website:
http://www.justice.gov/eoir/vll/OCIJPracManual/
ocij_page1.htm
• First published in February 2008
• Sets forth uniform procedures, requirements and
recommendations for practice before the
immigration court
• Binding on all parties, but immigration judges
retain discretion
ICPM Pointers
• Check for updates:
http://www.justice.gov/eoir/vll/OCIJPracManual/
updates_archive.html
• Devil
il is
i in
i the
h details
d il
• Comply with deadlines
• Argue for flexibility when appropriate
• Appendices contain samples
Chapter 2:
Appearances Before the Court
• Attorneys and fully accredited BIA reps
• Registration with EOIR required
– eRegistry: http://www.justice.gov/eoir/engage/eRegistration.htm
• 1) Submit online form
• 2) Photo identification verification within 90 days
• Notice of Entry of Appearance: EOIR-28
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Chapter 2:
Appearances Before the Court
• Scope of Representation [2.3(d)]
• Multiple representatives [2.3(e)]
– All must file EOIR-28
– Designate the primary representative
– Individuals represent, not organizations
• Change in attorney [2.3(f)(ii)]
– If attorney leaves or is reassigned, must substitute
counsel
Chapter 2:
Appearances Before the Court
• Change in Representation
– Substitution of counsel [2.3(i)(i)]
• New attorney must submit written or oral motion
accompanied by paper EOIR-28
– Withdrawal of counsel [2.3(i)(ii)]
[2 3(i)(ii)]
• Client does not yet have new attorney
• Written or oral motion
• Attorney Misconduct
– EOIR may impose disciplinary sanctions for violations of
rules of professional conduct [2.3(k)]
Chapter 2:
Appearances Before the Court
• Law students [2.5(b)]
– Paper EOIR-28
• Check box indicating law student
• Include name, EOIR ID number and address of
supervising attorney/BIA rep
– Representation statement
• Law graduates [2.5(c)]
– Similar requirements
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Chapter 3: Filings
• Documents not “filed” until received and date
stamped by the Immigration Court [3.1(a)(iii)]
• No faxes or emails unless requested by the
Immigration Court [3.1(a)(vii)]
[3 1(a)(vii)]
• No E-filing of documents (except EOIR-28)
[3.1(a)(viii)]
3.1(b): Timing of Submissions
• Depends on a number of factors:
– Detained vs. non-detained
– Master calendar vs. Individual
– Judge’s
g instructions
• Non-detained master calendar hearing
– 15 days in advance if requesting a ruling
• Non-detained individual hearing
– 15 days in advance
3.1(b): Timing of Submissions
• Construction of “day” for timely filing:
– Calendar rather business days
– Next hearing date is “day zero” and day before next
hearing is “day 1.”
• Example: Your filing is due 15 days before the
next hearing, scheduled for April 22, 2015.
– Day zero = April 22; Day 1 = April 21
– Count backwards 15 days
– Filing due by April 7, 2015
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Chapter 3: Filings
• 3.2 Service on opposing party
– Must serve OCC (ICE)
– Proofs of service
• 3.3
33D
Documents
t
– Translation requirements
– Order of documents in filings
– TOC, pagination, tabbing, caption/cover page
requirements
Chapter 4: Hearings
• Waivers of appearance for master and
individual hearings
• Telephonic testimony
• Pre-hearing
h i conferences
f
andd statements
– Encouraged but not required unless ordered by IJ
• Pre-hearing briefs
• Subpoenas
Chapter 6: Appeals
• EOIR-26 Notice of Appeal: must be received
by the BIA no later than 30 days after the IJ’s
decision
• Waiver of appeal = IJ decision becomes final
[6.4]
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Chapter 12: Freedom of
Information Act (FOIA)
• FOIA not required for parties to inspect the record of proceeding
• FOIA request must be in writing
– Should thoroughly describe the records sought and include as much
identifying information as possible regarding names, dates, subject
matter, and location of proceedings
• EOIR FOIA Unit:
United States Department of Justice
Executive Office for Immigration Review
Office of the General Counsel FOIA/Privacy Act Requests
5107 Leesburg Pike, Suite 1903
Falls Church, VA 20530
(703) 605-1297
Important Appendices
•
•
•
•
•
•
•
•
Appendix A: Immigration Court addresses
Appendix B: EOIR directory
Appendix D: deadline chart
Appendix E: frequently used forms
Appendices G-I: useful samples
Appendix J: citation guidelines
Appendices P-Q: more useful samples
Glossary of terms and abbreviations
MOTIONS IN IMMIGRATION
COURT
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Filing Motions
• Chapter Five of the ICPM
• No form but must comply with Chapter 3
filing requirements
• Must contain a cover page and include a
proposed order
• Contact ICE Office of Chief Counsel to
determine its position on motion
• Serve copy on ICE
Motion to Change Venue
• 8 CFR 1003.20
– Venue may be changed for good cause
• ICPM ch. 5.10
– Requires pleading to the NTA but…
but
• EOIR Memo, 5/22/07, Guidelines for
Immigration Court Cases Involving UACs
– Unopposed motions to change venue may be
granted without pleadings
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Administrative Closure
• Mechanism to temporarily stop the case from
proceeding
• Matter of Avetisyan, 25 I&N Dec. 688 (BIA
2012)
– IJ may admin close without agreement of both
parties
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Motion to Re-calendar
•
•
•
•
ICPM ch. 5.10
Case has been administratively closed
One party wishes to reopen the proceedings
Motion to “re-calendar” not “reopen”
Motion to Continue
• Authority for motion to continue
– ICPM ch. 5.10
– Motion for continuance may be granted for good
cause 8 CFR 1003.29
– After commencement of hearing, IJ may grant a
reasonable continuance either sua sponte or upon
application by respondent or government 8 CFR
1240.6
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BIA and Continuances
• Continuance should be granted
– To await the adjudication of a pending family-based
visa petition, Matter of Hashmi, 24 I&N Dec. 785 (BIA
2009)
– To await adjudication
j
of a pending
p
g employment-based
p y
visa petition where adjustment possible, Matter of
Rajah, 25 I&N 127 (BIA 2009)
– To await the adjudication of pending U visa, Matter of
Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012)
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Preparing Motion for Continuance
• Chapter 5.10 of Immigration Court Practice
Manual states
– Written motion
– Detailed reasons
– Supported by evidence if appropriate
– Include time and date of hearing
– Include preferred date of rescheduling
• Filing motion does not excuse appearance
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Motion for Telephonic Testimony
• Discussed in Ch. 4.15
• Allows witness to testify telephonically
• Can be useful for experts who cannot travel
Motion to Reconsider
• ICPM Ch. 5.8
• Where there is an error in law or fact or a
change in the law
record no new facts or
• Based on existing record,
evidence
• Filed within 30 days of the IJ order
• Respondent limited to one motion to
reconsider
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Motion to Reopen
• ICPM, Ch. 5.7
• Request based on new information not
previously available
• May only
l file
fil one
• File within 90 days
Motion to Reopen
• Exceptions to numerical and time limits:
– To apply for asylum, withholding, CAT based on
new evidence/changed circumstances
– Where all parties agree and file jointly
– IJ/BIA may reopen sua sponte
– VAWA cancellation
Reopening
In Absentia Removal Order
• Motion to reopen filed within 180 days of
removal order if failure to appear was because
of exceptional circumstances, OR
• Motion to reopen at anytime if the R can show:
– s/he did not receive notice or
– s/he was in federal or state custody and failure to
appeal thru no fault of his/her own
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