accepting a defensive asylum case & attending the master ... · 9-1 updated november 2010...

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Updated November 2010

Accepting a Defensive Asylum

Case & Attending the Master

Hearing

Many of HRI’s cases are before the Dallas Immigration Court—HRI clients referred from the asylum office or individuals who are already in removal proceedings.

n the event that an applicant is not successful in the “affirmative” asylum application before an asylum officer and the applicant is out of status, the Houston Asylum Office will issue a Referral Notice and refer the case to an Immigration Judge (IJ) for it to proceed “defensively.” Many HRI clients are already in removal proceedings before an IJ, and HRI assists them apply for asylum “defensively.” This chapter will provide the pro bono with helpful information about immigration court procedures and the Master Hearing.

9.1 Accepting a defensive pro bono case

Once a pro bono accepts a case, HRI recommends the following:

1. Review a copy of the case file, including the referral notice and Notice to Appear (NTA), intake notes, etc.

2. Review the EOIR Practice Manual. This contains the Immigration

Court’s procedural rules. They can be accessed online at: http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm

3. Review the Court’s audio recordings and file. The pro bono should

review the Court’s file to ensure he/she has a complete copy of it. The file will often contain additional information such as the asylum officer’s notes. Only the attorney with an EOIR-28 on file can review the Court’s file. If a previous master hearing has taken place, the pro bono should review the Court’s audio recording of the hearing, which the Court will burn on to a CD on request.

To review the file at the Dallas Immigration Court, an appointment is required. Call the Court at 214-767-1814 and press 0 for the operator. Appointment times are usually limited to between 9:00 a.m. and 11:00

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http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm

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a.m. and 1:00 p.m. to 3:00 p.m. You will need the client’s A number and a completed Form EOIR-28 (does not require client’s signature). Finally, it is often helpful to make a Freedom of Information Act (FOIA) request for any additional documents the government may have. Instructions can be found in Chapter 12 of the Immigration Court Practice Manual: http://www.justice.gov/eoir/vll/OCIJPracManual/Chap%2012.pdf

4. Meet with HRI. After you have reviewed the materials, please contact the

HRI Asylum Attorney to discuss the details of the case. In this meeting, you will be encouraged to set a timeline of various deadlines for the case, prepare for the master hearing, and discuss strengths and weaknesses of the case.

5. Observe the Judge conducting a Master Hearing and an Individual

Hearing. Depending on the pro bono’s comfort level in court and experience with the judge, he/she should observe the judge in a Master Hearing and an Individual Asylum Hearing.

6. Contact client to discuss initial client meeting. HRI will schedule the

first meeting between the pro bono and client to occur at the HRI offices. The goal of this meeting is to introduce the pro bono and client to each other. Topics of conversation can include when and where pro bono/client meetings should occur, what to expect at the first master hearing, and general background information. The relationship between the pro bono and client is an extremely important one that needs to be well-managed. HRI recommends on diving into the details of the asylum case in this first meeting, but rather work on establishing trust and familiarity.

7. Obtain a copy of the Officer’s Notes or Assessment. Although it is

difficult to obtain the actual notes from the Asylum Office it is often possible to obtain a copy of the Asylum Office’s Assessment. The assessment outlines the reasons the client was referred to Immigration Court. Even though it is a trial de novo it can be helpful for case preparation. Since the Federal Rules of Civil Procedure do not apply, the assessment cannot be obtained through discovery. Instead, the pro bono can request a copy from the trial attorney at the master hearing. If the trial attorney is unwilling to provide it the pro bono can request it through the FOIA. The request must be submitted to the central FOIA processing agency. Please note these requests often take six months or more. Therefore they should be done immediately. The FOIA request is made on form G-639 and should be accompanied by a G-28 attorney representation form. Even though the file may not arrive before the individual hearing, it may be relevant on appeal. See Appendix 9-A for a sample G-639.

9.2 Preparing for the Master Hearing

The first hearing is called a “Master Hearing.” It is a brief appearance before the IJ, similar to an arraignment. Its purpose is to review the allegations, enter pleadings, submit a request for relief and related procedural issues, and schedule the next hearing. If the client applied for asylum “affirmatively,” the Referral Notice issued from the Asylum Office will indicate the reasons the respondent was found not to qualify for asylum. CIS also issues a Notice to Appear, referred to as an “NTA,” scheduling the respondent to

http://www.justice.gov/eoir/vll/OCIJPracManual/Chap%2012.pdf

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appear before an IJ at the Executive Office for Immigration Review (EOIR). The NTA contains the charges under which Immigration and Customs Enforcement (ICE) is attempting to deport the respondent. See sample Referral Notice and NTA in the Appendix at 9-B and 9-C.

1. Reviewing the NTA – Form I-862. CIS serves the NTA upon the

respondent before the initial Master Hearing. INA § 239(a)(1)(f). The NTA will state the date of the initial Master Hearing and indicate the charges under which ICE is attempting to remove (or deport/exclude) the respondent. Individuals in removal proceedings are required to carry the NTA with them at all times. Thus, the pro bono should remind the respondent of this requirement. HRI also recommends the respondent carry a copy of his/her next scheduled hearing notice at all times.

The pro bono should review the NTA with the respondent prior to the

Master Hearing to ensure that all of the information is accurate. At the hearing the pro bono will either admit or deny each allegation for the respondent. The pro bono must also review the charge of re.

The pro bono should generally not admit charges that include any element of fraud (e.g., attempting to use a fraudulent passport). In most cases, there will be a basis for contesting the fraudulent intent of the individual. ICE has the burden of proving such a charge. They may choose not pursue the fraud charge if the respondent concedes removability (or deportability) on the basis of a lesser charge. The penalties for removal on a fraud charge are more serious and should be avoided when possible. If this issue arises, please discuss possible strategies with HRI.

a. Common errors on the NTA

Incorrect biographical information (name, A number, or

country of citizenship/nationality). Perhaps CIS mistyped the Respondent’s information. If this is the case, the pro bono need simply clarify the misinformation at the Master Hearing and change it in the record. If the issue is more serious, the respondent should bring his/her birth certificate.

Incorrect address or telephone number. If the information

contained in the asylum application is correct, the pro bono can request that the court correct the information in the record. However, if the respondent has moved, he/she will need to file an EOIR-33 with the EOIR, send a copy to the District Counsel, and file an AR-11 with the Department of Homeland Security. HRI can file these documents for the client.

Place or date of entry is incorrect. The Respondent

should bring his/her passport and I-94 to the hearing so that the ICE can reissue the NTA with the correct information.

Incorrect expiration date of the respondent’s

authorization to stay in the United States. On some occasions, the NTA will not reflect that the Respondent has filed an extension on his/her visitor’s visa because it was still

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pending. The client may have requested an extension before coming to HRI and before deciding to file for asylum. It could mean that client should not be in proceedings. If this issue arises, please discuss possible strategies with HRI.

2. Reviewing the Referral Notice. When the Respondent picks up the

results at the Asylum Office and is referred to the Immigration Judge, he/she is issued a Referral Notice. This notice explains the reason(s) the respondent was not granted asylum “affirmatively.” It also explains that a referral to an Immigration Judge is not a denial of his/her asylum case. Instead it is a trial de novo, allowing the respondent a second opportunity to request asylum. The Referral Notice also states the date the respondent is eligible to file for employment authorization. It is not likely that the referral notice will be discussed. However, the pro bono should be familiar with it as it will be helpful in case preparation.

a. Most Common Reasons for Referrals

A finding the respondent has not experienced any past persecution or what he/she experienced does not rise to the level of persecution.

A finding the respondent does not have a reasonable fear of future persecution

A finding the respondent has some type of credibility issue such as lack of detail in testimony or material inconsistencies in testimony.

3. Review Documentary Evidence to Determine if Authentication will be

Required. All of the client’s “Official Records,” such as birth certificates, school diplomas, arrest warrants, etc. are required to be authenticated. 8 C.F.R. 1287.6 The authentication process is problematic because the client must waive confidentiality. Certain documents, such as arrest warrants, may ultimately require authentication by the client’s persecutors, placing the client in danger. Also, depending on the country, attempts to authenticate may be unsuccessful.

At the Master Hearing, the IJ will ask the pro bono about the authentication of the respondent’s government issued documents. The immigration judges and trial attorneys are aware of the problems associated with authentication and they will sometimes accept certain documents, such as passports and birth certificates, if nationality is not an issue. Or the judge will accept a document without authentication, giving it less evidentiary weight than if it had been authenticated. Therefore, it is recommended that the pro bono be prepared to discuss authentication, but not assume that all documents will require authentication. Advise the judge that motions to authenticate will be submitted immediately after the Master Hearing. Be prepared that the trial attorney may also request certain documents be authenticated.

For those documents that require authentication, the pro bono will have to file a motion with the court. A waiver of confidentiality will also have to be submitted. HRI does not recommend the respondent provide the original document to the Court or the District Counsel, unless requested to do so. See Motion to Request Authentication of Official Documents, Waiver of Confidentiality, and additional information on confidentiality in the Appendices at the end of this chapter.

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4. Determination of Employment Authorization Eligibility

Subject to certain restrictions and bars, most asylum applicants are eligible to apply for work authorization 150 days after the asylum application has been submitted. See 8 C.F.R. 1208.7 Once the asylum clock starts, there are a number of client initiated delays that cause the clock to be stopped, postponing the ability to apply for work authorization. Once the delay is resolved, the clock should be restarted by the immigration judge. The only events that stop the clock permanently are when the client has failed to appear at the asylum hearing or before an immigration judge and there are no extraordinary circumstances. See 8 C.F.R. 1208.7(a)(4). HRI monitors the asylum clock and will handle the client’s employment authorization. The pro bono may be required to file a motion with the court to start the clock again if it was stopped and not restarted. For assistance in preparing a motion to restart the clock, please contact HRI. See Definitions and Use of Adjournment, Call-ups and Case Identification Codes and American Immigration Law Foundation’s Practice Advisory concerning employment authorization and strategies to avoid stopping the asylum clock in the Appendices at the end of this chapter.

9.3 Attending the Master Hearing

The IJ will initially be reviewing a number of cases, so the pro bono may have to wait some time before the respondent’s case is called. Generally, the IJ will go down the docket list, calling out the respondent’s name, A number, or the name of the attorney. When the pro bono’s name or the respondent’s name is called, the pro bono should rise and address the Court. The IJ will usually ask if the respondent is present.

While each IJ varies in the way that he/she conducts the hearing, the pro bono should be prepared for the following:

1. Arrival at EOIR/Dallas Immigration Court. The master hearing is held at the Earle

Cabell Federal Building at 1100 Commerce Street at Griffin, Room 404 (4th floor), Dallas, Texas 75242. It is recommended that the pro bono arrive at least 30 minutes before the time of the scheduled hearing. The pro bono should bring the referral notice and the NTA. The Court docket for all the hearings is posted on the wall near the clerk’s window. The docket is posted with the respondent’s name at the left and the number of the Courtroom. The pro bono should check the docket to confirm the court and that the client is on the list.

See the end of this chapter for information on the Dallas Immigration Court.

2. Filing Notices of Appearance. Pursuant to 8 C.F.R. 1003.17(a) an attorney

representation form must be on file:

a. EOIR-28 Notice to Appear as Attorney Before the Immigration Court (Green Form): This form should be completed and signed the pro bono and filed with the judge’s clerk in the courtroom before the master hearing starts. The Certificate of Service requires a copy of the form to be served to the ICE. The pro bono can hand a copy of the form directly to the ICE attorney in the Courtroom. Please see the Appendix in the end of this chapter for a sample EOIR-28.

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The EOIR-28 can be found on-line and can be filled out on the computer and then printed out. The form must be printed out on light green paper. Download at: http://www.usdoj.gov/eoir/eoirforms/instru28.htm

b. G-28 Notice to Appear as Attorney Before ICE (Blue Form): The pro bono

should also submit the G-28 to the ICE attorney before the master hearing starts. It can be handed directly to the ICE attorney in the Courtroom. Please see the Appendix in the end of the chapter for a sample G-28.

The G-28 can be found on-line and can be filled out on the computer and then

printed out. The form may be printed out on white or blue paper. Download at: http://www.uscis.gov/files/form/g-28.pdf

3. Advising Respondent of Rights and Obligations The respondent has certain

obligations and rights under the Immigration and Nationality Act, such as a right to counsel, of which the respondent must be advised. INA 208(d)(4). Some judges will ask the attorney if the respondent has been advised of these rights and waives the reading at the hearing. The pro bono should waive the reading of the rights as the issues will have been discussed with the client before the master hearing or should be discussed afterwards.

4. Conceding Service of the Notice to Appear and the Charges. The pro bono

should generally concede service of the NTA when he/she is asked to do so by the IJ. The IJ then will ask whether the respondent is prepared to plead to the charges. Based on the pro bono’s previous discussion with the respondent, he/she can concede or deny the charges on the NTA. (Note: If the pro bono is requesting another master hearing, he/she may ask the judge to defer pleadings to the next hearing.) The pro bono should also review the basis for removal. If the allegations are true, the pro bono should first conclude if it would provide a basis for removal. If true, the attorney concedes removability. After the response to the allegations, the IJ will ask for the forms of relief requested, as discussed below.

In many cases involving asylum, the respondent concedes that he/she is removable

(or deportable/excludable) and the hearing then focuses solely on the merits of the application for asylum and withholding of removal. For instance, if the respondent does not have the proper immigration documents to remain lawfully in the United States, there may be no justification, unless the respondent has evidence to the contrary, to refuse to concede removability.

5. Requesting Relief

The IJ will then ask the pro bono what relief from removal the respondent is seeking.

At this point, the pro bono should tell the IJ that the respondent is seeking asylum and withholding of removal. Under some circumstances, the respondent can also request relief under the Convention Against Torture (CAT).

6. Designating a Country for Removal

In removal and deportation proceedings, the respondent has the right to designate a

country to which he/she prefers to be removed and will be requested to do so by the IJ. In cases where one will be requesting asylum, withholding of removal, or CAT, designating the country from which one is claiming persecution may be considered a concession that one would not face persecution there. It is therefore usually advisable to decline to designate a country for removal. An alien cannot designate another country for removal unless he/she has the permission of that

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country to travel there (e.g., travel documents), which is unlikely. Most asylum seekers came to the United States because it was the only country where they believed that they would be safe. Usually, if declined, the IJ will, pursuant to statute, make the designation and name the country from which the individual came.

7. Voluntary Departure

If the respondent is in removal or deportation proceedings (but not in exclusion

proceedings), the IJ may ask if the respondent wishes to apply for voluntary departure as an alternative remedy. Very few respondents are eligible for Voluntary Departure. To be eligible the respondent must prove that he/she is of good moral character and has the means to depart the U.S. (i.e. a valid travel document and the financial means for airfare). To ensure an alien's timely departure, ICE may require a bond, evidence of travel documents, detention of the respondent until departure, and/or removal under safeguards. Voluntary departure granted at the conclusion of removal proceedings is limited to 60 days and the respondent must post a bond of $500 or more. In addition, only individuals who have been present in the United States for one year prior to being placed in removal proceedings may be granted voluntary departure at the conclusion of proceedings. If the bond is not posted within five business days, the voluntary departure order will be canceled and an alternate order of removal will take effect. The IJ may also impose additional conditions. Voluntary Departure benefits the respondent by allowing him/her to enter into an agreement to leave the United States of his/her own volition and to avoid the consequences of a formal order of removal.1

8. Requesting Additional Time for the Setting of the Individual Hearing

The individual hearing is normally scheduled within 180 days from the date CIS

receives the Application for Asylum. Clients with cases remaining unresolved after 180 days may be eligible for employment authorization.2 To avoid this, the Court attempts to complete the entire process within the 180-day window.

If additional time is necessary to prepare for the individual hearing, the IJ may grant

the request with the understanding that the respondent agrees to the time extension. If this is necessary, the accruement of the 180 days will stop from the date of the master hearing until the date of the next hearing. The IJ may refer to this as “tolling the clock”. The respondent’s agreement is imperative because he/she is basically relinquishing his/her right to apply for employment authorization for the remainder of the proceedings (i.e. the respondent will not reach 180 days and will be unable to apply for employment authorization). If the pro bono has a scheduling conflict on the original date the IJ sets and requests a different date, this too will stop the clock.

9. Previously Filed Asylum Application/Deadline for Filing the Asylum

Application/Supplement

If an asylum application was previously filed with the Service, the IJ will ask you for the number of pages contained in the application. Although the application is

1 US. Department of Justice, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Fact Sheet, 24

March 97. http://www.uscis.gov/graphics/publicaffairs/factsheets/956.htm.

2 An asylum applicant can apply for employment authorization 150 days from the date he/she properly filed his/her

asylum application and the CIS must issue the authorization within 30 days from the date they received the application for employment authorization. See 8 CFR [1]208.7(a)(1).

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normally 11 pages (9 pages, plus two addendum pages), you should review the client’s file prior to the hearing to be assured all pages are accounted for and that the IJ has a complete record.

In some circumstances a newly prepared asylum application, amendment, and/or supplement must be filed with the Court. These situations often arise when a respondent originally filed his/her application pro se. If this is necessary, the IJ should be informed of this request at the time of the master hearing. Depending on the situation, the IJ may set another master hearing date for the submission of these documents. The time allotted is generally 30 days or more.

10. Deadline for Filing the Cross Service Package

Pursuant to the local rules, the “cross service” of documents must be received by the

Immigration Court and ICE fifteen business days before the individual hearing. EOIR must physically receive the cross service package at least fifteen business days before the trial. The pro bono may prefer to ask the IJ for the cross service date to avoid misunderstandings. However, the pro bono should be prepared for the IJ to inform him/her that cross service date is determined by the local rules (which is a diplomatic way of informing the pro bono to look at the local rules). HRI can also assist with the date calculation.

11. Requesting an Interpreter

If the respondent does not speak fluent English or understand English, the pro bono

should notify the IJ at the master hearing that an interpreter will be needed for the individual hearing. He/she must specify the language and, if applicable, a particular dialect.

The pro bono should be very specific when asked to specify a language because

some countries may have more than one dialect of the same language. Further, if the respondent speaks an uncommon or rare dialect, such as Lingala, but can also speak another language such as French, it is better to proceed in French. It is often difficult to obtain a competent interpreter for the more obscure languages. Please discuss this matter with HRI.

12. General Information

The pro bono should inform the IJ that he/she is representing the respondent on a

pro bono basis through HRI. The IJs are appreciative of pro bonos and are aware that many have not previously represented respondents before the Immigration Court. If the pro bono has any question or is unclear about the IJ’s instructions, he/she should feel free to ask for clarification.

The pro bono should also be aware that only that which is said while the tape

recorder is operating is officially “on the record”. If something is discussed “off the record” when the tape is not recording and the pro bono wishes the record to reflect that discussion, the pro bono will need to state this after the IJ reactivates the tape machine.

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Chapter 9

Accepting a Defensive Asylum Case & Attending the Master Hearing

Index of Appendices

Appendix 9-A G-639 Freedom of Information/Privacy Appendix 9-B Sample Referral Notice Appendix 9-C Sample Notice to Appear Appendix 9-D Sample Motion to Request Authentication and Index Appendix 9-E U.S. Department of Justice, Chief Immigration Judge,

Memorandum, Operating Policies and Procedures memorandum (OPPM) 05-07: Definitions and Use of Adjournment, Call-ups and Case Identification Codes

Appendix 9-F American Immigration Law Foundation, Practice Advisory,

Employment Authorization and Asylum: Strategies to Avoid Stopping the Asylum Clock, February 28, 2006

Appendix 9-G EOIR-28 Notice of Entry of Appearance as Attorney or

Representative Before the Immigration Court Appendix 9-H G-28 Notice of Entry of Appearance as Attorney or

Representative

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Appendix 9-A

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Appendix 9-B

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Appendix 9-C

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Appendix 9-D

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Appendix 9-E

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Appendix 9-F

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Appendix 9-G

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Appendix 9-H