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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

The Immigration Court Practice Manual Becomes Effective On July 1, 2008

by David L. Cleveland

The Office of the Chief Immigration Judge stated it was "pleased" to announce that the "Immigration Court Practice Manual" was released, and that it shall become effective on July 1, 2008.

Few attorneys, however, are pleased. The new Manual sets forth new burdens and rules. This article will discuss some of the new requirements. The Immigration Court in Arlington, VA recently announced it "anticipates requiring full compliance with the requirements of the Practice Manual." The manual is available on line at

The Manual is approximately 238 pages long.

There are 13 chapters, with pages numbered 1-150. An Appendix, about 62 pages long, has pages A-1 through Q-2. There is a ten-page Glossary, followed by a Word Index and a Citation Index.

Rule 2.3 Attorneys

Rule 2.3, entitled Attorneys, begins on page 18. Rule 2.3(i) is entitled Change in representation, and begins on page 22.

At page 23 is Rule 2.3 (i)(ii), entitled Withdrawal of counsel. If the attorney wishes to withdraw as counsel, his motion should contain, among other things:
"evidence of the alien's consent to withdraw or a statement of why evidence of such consent is unobtainable;"

"a recitation of specific efforts made" by the attorney to notify the alien of pending deadlines, the next hearing, the necessity of meeting deadlines and the consequences of failure to meet deadlines.

Comment by the author

What if the alien does not consent to the withdrawal? The rule demands "evidence of the alien's consent or a statement of why evidence of such consent is unobtainable." If the alien does not consent, then there can be no evidence of it.

An alien might be silent or irritated after the attorney writes a letter to him, seeking his consent. Is his consent "unobtainable?"

Another alien might expressly refuse to consent, and might demand that the attorney continue the representation for the rest of the attorney's life. What should the attorney state in his motion to withdraw?

A more fair rule would state: "the attorney should describe his efforts to obtain consent from the alien."

The attorney must attend all hearings, in a far-away city?

Rule 2.3 (i)(ii) also states, at page 23:

"Until a motion to withdraw is granted, the attorney who filed the motion remains the alien's attorney of record and must attend all required hearings."

Comment by the author

Assume the attorney is in New York, and the alien is arrested in New York, but is then shipped to Oakdale, LA, and the case is set for a Master Hearing in ten days. Attorney mails a "Motion to Continue" and a "Motion to Change Venue" to the court in Oakdale. The court grants the motion to continue, but denies the motion to change venue. A second Master Hearing is set 30 days in the future. Attorney then mails a "Motion to Withdraw as Counsel." Ten days go by; twenty days go by; no ruling by the court.

Rule 2.3(i)(ii) states that "Until a motion to withdraw is granted, the attorney …must attend all required hearings."

The New York attorney must attend the hearing in Oakdale, because the court has not ruled upon the motion? That would be very expensive and unfair to the attorney. The rule should be amended to release the attorney from this undue burden.

Rule 3.1(b) Timing of submissions

Rule 3.1(b), entitled Timing of submissions, begins at page 32. On page 33, is Rule 3.1(b)(ii), entitled Individual calendar hearings. Rule 3.1(b)(ii)(A), Non-detained aliens, at page 33, requires counsel to submit filings "at least fifteen (15) days in advance of the hearing."

Comment by the author

This rule was amended on June 20, 2008. The old rule required filings 30 days in advance.

During an audio seminar on the new Manual, on June 5, 2008, sponsored by the American Immigration Lawyers Association, Assistant Chief Judge Stephen Griswold reminded the listeners of a document published on April 23, 2008, by the Office of the Chief Immigration Judge: "Operating Policies and Procedures Memorandum 08-03." It is available on line at

. Page 2 of that document states that judges still have the authority to extend filing deadlines in "any given case." Judges should be "cognizant of the special needs of law school clinics and pro bono programs," and "are encouraged to accommodate appropriate requests" regarding deadlines.

This means the attorney may, at a Master hearing, for example, request the court to set a mere ten-day deadline for that particular case.

Rule 3.1(d)(i) Improper filings.

3.1(d)(i), entitled Improper filings, is found at page 37 of the Manual. It states:

"If an application, motion, brief, exhibit, or other submission is not properly filed, it is rejected by the Immigration Court with an explanation for the rejection."

Comment by the author

This means the attorney runs the risk of being "front-desked" by the clerk at the window. The attorney might mail a package 34 days in advance of the hearing, hoping it will be received by the court by day 30. It might be received, but be rejected and mailed back to the attorney, who receives his package perhaps 27 days before the hearing. If the evidence is not admitted, perhaps the attorney has committed malpractice.

A filing can be rejected for many different reasons, found in numerous rules:

  • the "Proof of Service" might not state "the precise and complete address of the party served," violating Rule 3.2(e)(i);
  • the documents are in the wrong order, violating Rule 3.3 ( c) (i);
  • there is no pagination, violating Rule 3.3 (c ) (iii);
  • the "full" name of each alien" is not on the Cover page, violating Rule 3.3 (c )(vi).

5.2 Filing a Motion

Rule 5.2 (i), entitled Opposing party's position, found at page 88 of the Manual, states that the party filing the motion should state the position of the opposing party, or state a "description of the efforts made to contact the opposing party."

Comment of the author

Most DHS Office of Chief Counsel offices have thousands of cases, and are short-staffed. It is difficult to find an Assistant Chief Counsel ["ACC"] who will admit a case was assigned to him. If that ACC can be found, he may not be able to find, read, and develop a position on the motion. The Offices of Chief Counsel are going to become quickly irritated if they must deal with private attorneys trying to comply with this rule.

5.2(c ) Motion to change venue

Rule 5.2 (c), found at page 97, amended on June 13, 2008, now states that if the alien will be requesting relief from removal, this motion should contain "a description of the basis for eligibility." [The earlier version of this rule required the movant to attach a copy of the application for relief].

Failure to timely comply with the biometrics instructions will constitute abandonment of the applications.

Appendix M is entitled Sample Oral Pleading. The attorney must state that his client "understands that…failure to timely comply with the biometrics instructions will constitute abandonment of the applications."

The attorney should make sure his client gives his fingerprints, and that if the fingerprints "expire," the client gives them again. The attorney who fails to do this may later be reminded of what the attorney himself stated as part of the oral pleading, and be criticized, sanctioned, or sued.

Who has the burden concerning the "criminal history chart"?

Appendix O is entitled Sample Criminal History Chart. It states that a "party submitting a criminal history chart should attach all pertinent documentation." The chart itself has boxes to fill in, such as "charges," "disposition," and "immigration consequences."

Does the DHS have the burden to submit the chart? Or, are there some circumstances where the alien has this burden?

The author listened carefully to the discussion on this subject during the June 5, 2008 AILA seminar. The panelists did not give clear answers; the author, for one, was confused. This rule needs to be re-written.

Concluding comments by the author

The manual, over 200 pages long, is full of new rules. The judges and clerks have studied it, and have announced their intent to enforce the myriad rules contained therein. Assistant Chief Counsels will soon point out rule violations, as well. These three parties will team up against the alien's attorney.

Attorneys who violate rules may be subject to malpractice claims.

About The Author

David L. Cleveland, a staff attorney at Catholic Charities of Washington DC, was Chair of the AILA Asylum Committee from 2004-2005.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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