The ABCs of Representing Unaccompanied Children in Removal Proceedings

Basics of Practice Before the Immigration Court

American Bar Association October 1, 2014

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Karen T. Grisez Fried, Frank, Harris, Shriver & Jacobson LLP Washington, DC (with thanks to Anna Gallagher and the D.C. Bar)

Preliminary Information

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The Main Players U.S. Department of Justice, EOIR, Immigration

Judges and BIA

U.S. Department of Homeland Security,

a) Immigration and Customs Enforcement

b) U.S. Citizenship and Immigration Services

State Court in SIJS cases

The Respondent and You 3

Important Information Where is the court? When is the hearing? http://www.justice.gov/eoir/; 1-800-898-7180 Who is representing DHS? http://www.ice.gov/about/district_offices.htm

Immigration Court Practice Manual: Make sure to consult when preparing to represent noncitizens in removal proceedings. http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm

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Removal Proceedings for Minors

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Types of Removal Proceedings Removal Proceedings Before IJ Under INA 240 In absentia proceedings under INA 240(b)(5)

Expedited Removal Proceedings under INA 235(b) (only for fraud/misrep or lack of proper entry docs)

Note that initial jurisdiction over asylum claims filed by minors in removal proceedings is before Asylum Office of USCIS pursuant to TVPRA

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Charges and Placement in Removal

Proceedings

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Notice to Appear What is the Notice to Appear (NTA)? Form I-862 — charging document that

commences removal proceedings. Who can serve the NTA? When do proceedings commence?

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Notice to Appear (cont’d)

The NTA must describe the following: The nature of the proceedings; The legal authority for the proceedings; The acts or conduct alleged to be in violation of

law; The charges against the respondent and the

statutory authority for those charges; Right to counsel; Change of Address Rules.

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Two Types of Hearings in Immigration Court Master Calendar Preliminary and quick Often likened to criminal arraignment Pleading and Scheduling (Subsequent masters for filing applications for relief)

Individual Usually 2 - 4 hours Evidentiary trial on the merits Decision - usually oral from the bench occasionally

written

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Entry of Appearance

Must file EOIR-28 Notice of Entry of Appearance with Immigration Court.

Limited appearances currently not permitted. Must continue representation until client terminates representation or IJ grants motion to withdraw or substitute counsel.

For asylum claims, separate Form G-28 is required to appear at the USCIS Asylum Office.

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Reviewing and Obtaining Copy of

Files

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Reviewing Existing Court File (if there have been previous hearings)

Must have EOIR-28 or signed client consent form on file to request review.

Contact court clerk to schedule time to review

file and to listen to tapes. May only obtain limited copies of documents.

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EOIR Freedom of Information Act Request

File written request with EOIR General Counsel. http://www.justice.gov/eoir/efoia/foiafact.htm

Expedited processing available.

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Master Calendar Hearing Service of Notice to Appear: Can be served in person or by regular

mail. If counsel does not have the NTA, may request a copy from ICE OCC and/or request continuance to obtain and review

Formal Reading of NTA Pleadings

Designation of relief Designation of country of removal Filing issues Advisals

Do not skip over analyzing of any of these steps. Finally, continuance or Scheduling of Individual Hearing

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Preliminary Considerations and Challenges to NTA

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Three Questions for Removal Proceedings Is the individual subject to proceedings (not a

USC)? Is he/she removable as charged in NTA? If so is he/she eligible for relief?

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Is Your Client a USC?

Is your client a U.S. citizen? Birth Derivative USC Naturalization Child Citizenship Act of 2000

Be especially alert to this possibility if either parent is/was a USC or served in U.S. military.

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Contesting the Charges on NTA Alienage – Burden on DHS to prove.

8 CFR §1240.8 Always contest if any chance your client is a

U.S. Citizen. Ask for time to explore issue if that is a possibility.

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Defenses Against Removal

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Overview of Potential Defenses Against Removal for Minors Asylum, Withholding of Removal, CAT Adjustment of Status, INA 245 (after

approval of SIJS Visa) Voluntary Departure, INA 240B (in some

cases) Also consider Prosecutorial Discretion

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Individual Hearing Evidentiary Trial on the Merits Any preliminary matters Removability formally determined if not previously

done Opening statements (good to prepare but rarely

permitted; very brief + focused on key issues) Respondent's case in chief

You bear the burden on relief Respondent normally testifies first; others out of order

sometimes possible. 22 22

Individual Hearing (cont’d) Cross-examination (often more extensive by IJ than

by DHS) Other lay and/or expert witnesses Proffers if any as to additional witnesses Government's Witnesses (usually none) Closing Statements (typically allowed) Decision (oral or schedule for written) Reservation of appeal - either side

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Burdens of Proof - Removal

Burden on gov’t to prove respondent deportable by clear and convincing evidence that is reasonable, substantial and probative. INA§240(c)(3)(A).

Applicant for admission must prove that s/he is clearly and beyond

doubt entitled to be admitted and is not inadmissible under section 212 or, by clear and convincing evidence, that s/he is lawfully present in US. INA§240(c)(2).

Burden on respondent seeking relief to establish that s/he satisfies

eligibility requirements, and with respect to relief requiring discretion, that the noncitizen merits favorable exercise of discretion. INA§240(c)(4). 24 24

Practice Tips on Preparing Cases and

Filings

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Practice Tips

Know your statute, regulations and case law Deal with law in applicable circuit All filings must comply with the Immigration

Court Practice Manual Credibility of respondent and witnesses is key Read all your documents

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Motions

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Motions Practice Tips Determine which motions you need to file as early

on as possible. Make sure to comply with filing deadlines and

motions requirements under ICPM. Contact ICE Office of Chief Counsel to determine its

position on motion. Try for unopposed motions wherever possible and indicate that clearly.

Serve copy on ICE and include Certificate of Service.

See Chapter Five, Immigration Court Practice Manual. 28

Evidentiary Issues - Making and

Preserving the Record

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Rules of Evidence Although Federal Rules of Evidence do not

apply in removal proceedings, spirit of the rules do apply. Note: Hearsay is expressly permitted.

Any evidence offered must be probative and

its use must be fundamentally fair to guarantee due process of law.

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Standard Objections – Checklist In order for evidence to be admissible, must be material and relevant to the

issue, must be reliable and its admission must be fundamentally fair. Checklist of objections:

Objections to documentation: Asylum office interview notes/summary report – incomplete or

irrelevant; not subject to cross examination Lack of opportunity for cross examination of affiant Incomplete document or report Untimely filing of evidence Lack of compliance with immigration court rules Unavailability of original document for inspection Authentication of documents

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Standard Objections – Checklist (cont’d) Objections to questioning

Irrelevant Vague Misstatement of testimony given Argumentative; narration Prejudicial Compound question Asks for a conclusion for which witness not qualified Asked and answered Nonresponsive answer to question asked Beyond scope Lack of knowledge Failure to lay a foundation

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Expert Witnesses

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Experts Respondent may present expert testimony as part of

right to present evidence. Not required but can be very helpful to document

individual trauma, medical or psychological conditions, country conditions.

Look to FRE 702 as a guide to qualifying your expert. IJ must find that the proposed expert witness has

knowledge that will be helpful to assist in determining a fact in issue.

Include expert affidavit and CV as part of supporting documentation.

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Appeals

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Appeals Notice of Appeal to Board of Immigration Appeals

Form EOIR-26 Fee Waiver EOIR-26A if needed Must be received within 30 days of IJ Decision; No

Mailbox Rule. Consult BIA Practice Manual at

http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm. Federal Court appeals Motion to re-open (can be brought to Immigration Court or

BIA – wherever last action in the case took place)

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