EOIR/AILA LIAISON MEETING AGENDA QUESTIONS
November 29, 2001
- I-130s in proceedings.
Marriage after initiation of proceedings.
- What is the EOIR's current policy on the Immigration Judges' role in matters where the
Respondent is awaiting adjudication of an immediate relative petition by the INS? Is
there a uniform policy or guidelines on continuances?
Response: As previously stated in the last liaison meeting held on March 22, 2001,
(See http://www.usdoj.gov/eoir/statspub/eoirailaMarch01.htm), with respect to
detained cases, the OCIJ and the INS have worked out an informal agreement that
the INS will "look into" those cases which have been continued for over 90 days as a
result of the delay in adjudication of the I-130 or I-140 petitions. There has not yet
been a final determination on how to address non-detained cases. The OCIJ is
seeking a formal written agreement with the INS on the detained and non-detained
cases, but to date, the INS has not responded to the OCIJ proposal. With respect to
continuances, please refer to 8 C.F.R. 3.29 (2001) as well applicable case law,
regarding the circumstances under which an Immigration Judge can grant a
- Would the EOIR consider taking a more active role in encouraging timely or expeditious
processing by the INS?
Response: The EOIR has taken an active role by seeking a formal written
agreement with the INS. See response to question (1)(a) above. Beyond seeking a
formal written agreement with INS, the EOIR does not plan to take any further
steps in this regard.
- Could Immigration Judges be encouraged to use their authority to set deadlines under 8
C.F.R. 3.31(c) to force the INS to act on languishing petitions?
Response: The regulations located at 8 C.F.R. 3.31(c) state that filing deadlines may
be set. However, the regulations do not permit Immigration Judges to establish
deadlines for the INS to adjudicate petitions. Moreover, 8 C.F.R. 3.31(c) only
relates to applications, related documents (and answers to these documents) which
"are to be considered in a proceeding before an Immigration Judge." See 8 C.F.R.
3.31(a). Since Immigration Judges do not have jurisdiction to adjudicate or
consider I-130 petitions, they therefore have no authority to order the INS to
adjudicate the petitions by a specified deadline.
Respondents who enter into marriages after initiation of proceedings often are refused
continuances due to the rebuttable presumption of fraud. While the majority of these
petitions are approved, the combination of INS inaction and failure to continue a case
leads to a cluttered BIA docket and increased administrative costs associated with
adjudicating motions to remand.
- Would the EOIR consider encouraging Immigration Judges to make findings of facts on
the bona fides of a relationship rather than summary denials of requests to continue based
on the timing of the marriage?
Response: An alien is not eligible to adjust his or her status until there is an
approved I-130 petition. Thus, any determination relating to a marriage would be
premature and not within the Immigration Judge's jurisdiction.
- Would the EOIR insure that any policy regarding expediting I-130s in proceedings also
cover "late" marriage cases?
Response: If the OCIJ and the INS enter into an agreement on the issue of the
adjudication of I-130s (see response to question (1)), the OCIJ does not anticipate
that the agreement would differentiate among the various circumstances under
which an I-130 is filed.
Board and Court Procedures
- Improper dismissals. Recently we have experienced the BIA issuing dismissals of appeals
for failure to file a brief when, in fact, briefs have been filed. We have been instructed to
file a motion to reconsider along with proof of the original filing (i.e., Federal Express
receipt) and a filing fee of $110. Two questions emerge--
- What is the EOIR doing to ensure that material sent to the BIA actually makes it to the
file 100% of the time?
Response: It is the Board of Immigration Appeal's (Board) practice to forward any
correspondence, including a brief, to the case file as soon as it is received. The case
files are tracked through bar coding and scanning to each new location, and
inventories of our approximately 56,000 case files are undertaken quarterly to
ensure the location of all files. In rare circumstances, the Board's staff will discover
a brief or other piece of correspondence that was not associated with the file in a
timely manner, and in such instances the Board will take action on its own motion,
including reopening and issuing a new decision where appropriate.
- Can the EOIR at least waive the fee requirement where the error is clearly that of the
Response: The Board is taking this question under advisement and will examine the
- Rejection of documents. It is AILA's position that EOIR clerks are not empowered to
reject a filing tendered on behalf of an alien in proceedings. However, clerks routinely
do reject such filings.
Under what circumstances does a clerk have the authority to reject a tendered document
before it reaches a Board Member or Immigration Judge? Are there internal guidelines
for the clerical staff in making these decisions, and, if so, can AILA be furnished with a
copy of these guidelines? If an attorney believes a document has been wrongfully
rejected by a clerk, how can this be redressed?
Response: With respect to the Immigration Courts, clerks are authorized to reject
any filings that do not comply with the regulations or local operating procedures
(e.g., no certificate of service, incorrect number of copies, untimely, etc.). The
Uniform Docketing System Manual, as well as various Operational Policy and
Procedures Memoranda (http://www.usdoj.gov/eoir/efoia/ocij/OPPMLG2.htm),
offer guidance to Immigration Court staff regarding when and how to accept
filings. Many of these documents are available on the EOIR web site. The Uniform
Docketing System Manual is not currently available on the EOIR website, but may
be made available by making a FOIA request. Moreover, if an attorney believes a
document has been wrongfully rejected, he or she can contact the appropriate
The Board's clerical staff is authorized to reject documents that do not meet
regulatory requirements such as documents lacking a certificate of service,
documents not accompanied by a fee receipt, and briefs that are not timely filed.
Following the regulations, and as authorized in the BIA Practice Manual, the Board
does not accept such documents in any circumstance, and as such, there is no need
for Board Member review. Please note that the clerical staff rejects untimely briefs
out of hand only where there is no motion to accept the late-filed brief
accompanying the document. Any such motion will be considered by a Board
Member. Even where there is no justification given for the late brief, the Clerk's
Office rejection notice informs the party that the brief may be resubmitted with a
motion to accept it as late, which will be considered by a Board Member.
- Briefing Schedules. It is the experience of AILA attorneys that the BIA often takes a
great deal of time to issue a decision. What are the factors that determine the time
frames for issuance of a briefing schedule and ultimate decision? Can we request
expedited handling of certain matters before the BIA? If so, how? Does the INS request
matters to be expedited? Is there a mechanism to expedite unopposed requests to remand
matters from the BIA?
Response: The Board currently has a pending caseload of approximately 56,000
cases, and we now receive 28,000 to 30,000 additional appeals or motions each year.
This may result in some delays in adjudication. The Board presently has an entire
panel of Board Members and staff attorneys dedicated to adjudicating its oldest
The Board presently issues briefing schedules soon after the transcript and the
Immigration Judge's decision are available. Other than non-detained case appeals,
it is the Board's goal to adjudicate all other appeals and motions filed on or after
January 1, 2001, within 180 days of receipt, or within 180 days of receipt of the file
with respect to appeals of INS decisions. A percentage of the more current non-detained case appeals are adjudicated more quickly than others, either because they
fall within the categories of cases appropriate for single-Board Member review
(streamlined decisions), such as appeals with unopposed motions to remand, or
because they were adjudicated in order to provide guidance on current immigration
Any party can request that review of a case before the Board be expedited by filing
a motion to expedite with the Board. No fee is required for this motion. Both the
INS and the private bar file such motions on occasion. The BIA Practice Manual
contains guidelines for filing such expedited requests.
See BIA Practice Manual (Chapter 6.5 Expedite Requests).
- Certified copies. Would the EOIR please consider expanding the circumstances under
which it certifies EOIR records? The EOIR currently does certify records for appellate
review. Every administrative, federal and state court provides a mechanism for record
certification for members of the public. We encourage the EOIR to provide a mechanism
where members of the public can obtain certified EOIR records.
Such certifications are needed, for example, for proof of residence status when an I-485
is approved but it takes the INS months to process and the individual has no evidence of
lawful status, or when the individual goes to the Consulate and the Consulate requests
certified orders of voluntary departure or proof that there was no record that the NTA
Response: The EOIR currently certifies records upon request by Federal agencies
for appellate review. It is the duty of Federal litigators (e.g., the Office of
Immigration Litigation, United States Attorneys) to provide copies of the
administrative record below to the appellate court and to opposing counsel.
Fed.R.App.P.17. Federal litigators are subject to sanctions if they fail to comply
with this court directive.
Upon request, the EOIR, in accordance with the Freedom of Information Act
(FOIA), provides complete and unredacted copies of records in two cases: (1) when
the subject of the record is the requester; and (2) when a third-party request is
accompanied by permission from the subject of the record. For further
information regarding FOIA requests to the EOIR, please see
http://www.usdoj.gov/eoir/newsinfo.htm. In addition, copies of some documents
contained in Records of Proceedings may be obtained by requests made to
individual Immigration Courts and the Board's Clerk's Office. Procedures
regarding obtaining documents from the Board are outlined in the BIA Practice
Manual. Where a legitimate need exists, the Office of the General Counsel has in
the past and continues to provide affidavits attesting to the existence or
nonexistence of certain documents (e.g., where an NTA has not been filed or where
no appeal is pending).
The situations highlighted in AILA's question do not appear to require a certified
copy of an order or a certified copy of the record. The INS and the Department of
State should both accept EOIR orders at face value without the need for
certification. The EOIR is open to further discussion on this issue regarding any
additional needs immigration practitioners may have and is willing to address any
issues regarding the recognition of EOIR's orders with other Federal entities.
- Shackling of respondents. Can an Immigration Judge order that an alien be released
from shackles during proceedings? Who has the ultimate decision-making authority, the
Immigration Judge or the INS? Under what authority? Does it depend upon where the
hearing is held (e.g., in an INS detention facility or a regular Immigration Court)?
Response: Immigration Judges do not have authority to order the INS to release an
alien from shackles. That is the ultimate decision of the INS, which is responsible
for the safety and security of the alien, since it has authority over the alien's
detention. This authority rests with the INS. According to the INS Enforcement
Standard for the Use of Restraints, the policy on the use of restraints for detainees is
discretionary, based on various factors, and may vary from one location to another.
As explained to the EOIR Office of Security by an INS Supervisory Detention
Officer, INS Detention Officers and/or contract guards escorting detainees to
immigration hearings do not relinquish their custodial responsibility to the Court
and they are not obligated to remove restraints should an Immigration Judge
request they do so. While it may appear that more latitude can be given when a
hearing is conducted in a detained setting versus a regular Immigration Court, the
final decision to remove a detainee's restraints rests with the INS representative and
not the Immigration Court.
- Use of Internet in court. Do you agree that it is inappropriate for attorneys to be
accessing the Internet during proceedings? A member complained that an INS Trial
Attorney was using Immigration Court facilities to link up to the Internet while in Court
and was cross-examining the applicant based upon information that he obtained in Court
while on the Internet.
Response: The OCIJ is taking this issue under advisement and is examining this
issue further. Therefore, the OCIJ is unable to provide a response at this time.
- Interpreters. At the Krome Processing Center, it is the position of the Immigration
Judges that Master Calendar proceedings are not required to be translated to detainees.
In a recent case, the Immigration Court refused to provide a translator for a Master
Calendar hearing for an Iraqi detainee stating that it was the attorney's obligation to
provide the translation. The Immigration Court did not address who would provide a
translation for pro se detainees. We believe that this determination is incorrect and
request your office to provide instructions to the Immigration Courts, especially Krome,
that interpreters are to be provided at Master Calendar hearings for represented and
Response: This question was previously raised with the Assistant Chief Immigration
Judge for Krome, who investigated the allegations, and found that the Krome
Judges do not hold this position. Aliens are entitled to interpretation of all their
hearings, whether they are represented or pro se. However, at the first master
calendar hearing there may not be an interpreter available for an alien, because the
Court does not have advance notice of what language the alien speaks or because a
telephonic interpreter is not available. If an interpreter is not available, the case
should be continued. Once the language is verified, the alien should have an
interpreter available at all subsequent hearings.
- IJs in Detail Cities. Our members have reported various problems filing documents with,
and contacting Immigration Judges in, detail cities where the courtrooms are on INS
premises. For example, in some of these cities bond hearing requests must go through
local INS personnel to get to the Immigration Judge. The INS personnel have been
reported as being less than cooperative in many instances, with the result that it appears
the INS has much easier access to the Immigration Judge than the respondents and their
counsel. We realize that the EOIR would never intend such a result. What are the proper
procedures for contacting or making last minute filings with an Immigration Judge in a
detail city? Can these procedures (including appropriate phone numbers) be posted on
your website for the detail cities?
Response: Procedures for filing documents with the individual Immigration Courts
(which are also applicable to detail courts) are determined by Local Operating
Procedures (LOPs). The LOPs for each Immigration Court (including base cities)
are available on the EOIR web site, as well as on the individual Immigration Court's
web site. See http://www.usdoj.gov/eoir/sibpages/fieldicmap.htm. If this problem
continues, please contact the appropriate Court Administrator.
September 11 Aftermath
- Emergency closings. From time to time it becomes necessary for Federal offices,
including the Immigration Courts, to close without prior notice due to unforeseen acts of
nature or other emergent reasons. This happened nationwide after September 11, and in
Houston as a result of local flooding in June. While it is understood that such tragic
circumstances cannot be foreseen, there is a great need for some means of advising the
public when the Immigration Court(s) will reopen. Knowing the Immigration Court is
closed today but not whether it will reopen tomorrow, and having no reliable way to find
out, creates tremendous uncertainty for those respondents, witnesses and attorneys
scheduled to appear before the Immigration Courts, who must often travel great
distances and prepare at length for a hearing that may not go forward. Could the EOIR
post current information concerning such closures on its website (by individual
Immigration Court), or provide a toll-free hotline the public could call to know whether a
particular court will be open on a particular day?
Response: If an attorney is concerned regarding the opening/closing of an
Immigration Court, he or she can contact the Court the day of the hearing to verify
if the Court will be open. Information regarding specific Immigration Courts is
available to the public on the EOIR website, as well as each local Immigration
Court's website. With respect to the closings on September 11, the OCIJ provided
updated information on the website. The Immigration Courts make every effort to
contact parties whenever possible; however, unforseen emergencies do occur.
- Records lost in WTC attack. Does the EOIR have the capacity to generate a files list by
attorney? For attorneys who lost their offices and records in the World Trade Center, can
the EOIR assist in reconstructing the case load? Additionally, is it possible for the
attorney to provide at his/her change of address to the EOIR once, so that all future
correspondence will be sent to the attorney's correct address?
Response: Although the OCIJ and the Board do have the capacity to generate lists
of cases by attorney of record, they do not have the resources to do this. Rather, the
OCIJ and the Board view this as the responsibility of the individual attorney to
keep track of his or her cases.
In light of the WTC tragedies, however, the OCIJ and the Board will assist
attorneys -- who can establish that his or her office or records have been destroyed
or are inaccessible as a result of the September 11th attacks -- in identifying those
cases in which he or she is the attorney of record. Attorneys requesting this
information must submit a letter to the appropriate Court Administrator, or the
Chief Clerk of the Board, requesting a list of all the cases in which he or she is the
attorney of record. The letter must also contain appropriate documentation or
evidence establishing that the attorney's records or office have been destroyed or
are inaccessible as a result of the September 11th attacks.
Once the attorney has a list of his or her cases, if he or she does not have an
extraordinary number of cases and can demonstrate immediate need for
reconstructed files, requests for such files may be made directly with the
Immigration Court. In instances where an immediate need is not demonstrated or
where an extraordinary number of reconstructed case files are requested, negatively
impacting the Immigration Court's operations, attorneys should file a FOIA
The Board unfortunately does not have the resources to promptly respond to
requests for all of the records of proceedings involving attorneys whose offices may
have been affected by the World Trade Center attack. For this reason, affected
attorneys wishing to reconstruct their files should file a FOIA request with EOIR's
Office of the General Counsel, which has a unit dedicated to reviewing, and where
appropriate, reconstructing files as promptly as possible. The FOIA unit will also
consider requests to expedite based on exigent circumstances.
- Access to buildings. The EOIR administrators have informed local practitioners that due
to the September 11 attacks, there will be no access for Respondents without government
issued identification, and that applicants of "certain" nationalities will be refused
admission. We know of some Courts announcing a "one continuance only" policy with
regard to the ID issue. Further, some courts have relocated hearing space to inadequate
facilities based on security grounds. Is there a uniform policy from the EOIR regarding
such matters? What provisions are being made for Respondents who cannot obtain such
Response: The heightened level of security implemented since the September 11th attacks has
not significantly restricted Respondents from accessing Federal facilities.
Immigration Courts are located in a variety of facilities including Federal buildings,
commercial office buildings, and Federal, State, or local detention facilities. The
organization responsible for building security in each type of facility ultimately
decides under what circumstances the public will have access to the buildings. For
example, in Federal buildings and detention facilities, this could be the Federal
Protective Service, the United States Marshals Service, the INS or the BOP. Other
responsible organizations could include State or local detention agencies, or the
landlord of the commercial building.
Court Administrators usually work with building security (Federal Protective
Service) to ensure that Respondents have access to Immigration Courts in Federal
facilities. In many cases, it has been agreed that Respondents not having
government or photo identification may use their 'Notice to Appear' to establish
their bona-fides to be at the Court. With the exception of undergoing enhanced
security screening, Respondents are not restricted from visiting Immigration Courts
located in commercial buildings. The EOIR is unaware of any policy that restricts
applicants of "certain" nationalities from being refused admission to any
Immigration Court, whether in a Federal or commercial building, or of any court
relocating hearing space to inadequate facilities based upon security grounds.
Chief Immigration Judge Creppy has advised all the Immigration Court personnel,
including Immigration Judges, to be sensitive to situations where there have been
resulting delays as a result of the September 11th attacks and subsequent heightened
security, including encouraging the use of discretionary tools such as continuances
when the situation warrants it.
- Closed Removal Hearings. It has come to our attention that an apparently new
procedure -- perhaps called "certified removal proceedings" or "special removal
proceedings"-- is being employed for certain individuals in connection with the
investigations following September 11. The distinguishing characteristics of these
proceedings are that no information is disclosed on the "docket line" about time and place
of hearings, and the public and press are excluded from the hearings. Another hallmark
of these proceedings is the apparent universal unwillingness or inability of EOIR
employees to discuss any details. Also, some Immigration Judges are issuing "gag
orders," barring participants from discussing the proceedings outside the Court.
- Under what authority are these new, restricted access proceedings conducted?
- Under what authority are "gag orders" being issued?
- Are there any other differences between traditional removal proceedings and the
- What class or classes of individuals are subject to these new proceedings?
Response: The EOIR has provided to AILA the list of INS detainees which was released on November 26, 2001, and a copy of the instructions from the Chief Immigration Judge to the Immigration Judges regarding the procedures in these cases.
- Going off the record. The issue was raised previously about when Immigration Judges
go on and off the record (i.e., are recording the proceedings or not). The response was
that "any off the record statements can be memorialized when the proceeding goes back
on the record." What should an attorney do if the Immigration Judge refuses to go on the
record? What about when the Immigration Judge goes off the record and the attorney
believes the discussion should be on the record? When questioning the Immigration
Judges as to whether the proceedings are being recorded, our experience has been that
this upsets some Judges. How should an attorney confirm the proceedings are being
recorded without upsetting the Immigration Judge?
Response: If an attorney wishes to know if a conversation is "on the record", he or
she should ask the Immigration Judge. The attorney may request that the
Immigration Judge record a conversation, or the attorney may attempt to
memorialize the conversation after the parties go back on the record.
- Appearance of bias. In a number of cases, we have witnessed Immigration Judges
urging INS attorneys to add additional removal charges. In one recent instance in Miami,
the Immigration Judge advised the INS attorney, at a Master Calendar Hearing, where
the alien was pro se, that the attorney should add the additional charge of intending
immigrant in the event the fraud charge could not be proven. Thereafter, the Judge
provided the government with an unrequested continuance to lodge an additional charge
on the NTA. This conduct is unbecoming of a Judge and certainly does not further the
avoidance of the appearance of impropriety. What training does the EOIR offer about
Response: Every year at the Immigration Judges' conference, the Immigration
Judges are given a session on judicial conduct and ethics. Additionally, all
Immigration Judges have received a copy of the Ethics Manual containing guidance
on these issues which was jointly drafted by representatives from OPR, EOIR, and
the Department's Ethics Office. See http://www.usdoj.gov/eoir/statspub.htm . If an
attorney is concerned regarding the conduct of a particular Immigration Judge, he
or she should contact the Immigration Judge's Assistant Chief Immigration Judge
and/or the Office of Professional Responsibility (OPR) of the Department of Justice.
Information about regarding OPR is available on the Department of Justice
- Suspensions from practice. If a practitioner is licensed by the highest court of a state,
and also admitted to practice before several Federal courts, does the automatic, reciprocal
suspension provided in the EOIR regulations (8 C.F.R. 3.103) apply where the
practitioner has been temporarily suspended by only ONE court, and not the state court
that issued the practitioner's license? If, for example, the practitioner is licensed as an
attorney in Virginia and has been admitted to practice before the Federal District Courts
in Virginia, Maryland and the District of Columbia as well as the Fourth Circuit Court of
Appeals, it seems unreasonably harsh for him or her to be immediately and summarily
barred from all practice before the EOIR and the INS just because he or she has
been suspended for six months by one of the district courts for failing to appear at a
hearing. The practitioner would still be in good standing with the court that issued his or
her license (and several others) and would have committed no misconduct before the
EOIR or the INS.
Response: The regulations permit the discipline of a practitioner "who has been
disbarred or suspended on an interim or final basis by, or has resigned with an
admission of misconduct from, the highest court of any state, possession, territory,
commonwealth, or the District of Columbia, or any Federal court." Thus,
discipline by the licensing state authority is not a prerequisite for the issuance of a
Notice of Intent to Discipline. Professional misconduct before a Federal court is of
no less concern than misconduct before a state or administrative court. The fact
that a practitioner's misconduct did not occur in a proceeding before the EOIR or
the INS is not relevant; the only requirement is that the misconduct violates one of
the grounds for discipline.
However, the EOIR Office of the General Counsel has the discretion to review each
case individually and determine, based on the type of misconduct that has occurred,
whether or not to pursue reciprocal discipline. In a situation where a Federal court
takes disciplinary action prior to the state bar initiating disciplinary proceedings,
the EOIR would not want to be required to wait until after the state had brought its
own action to completion before the EOIR could move forward with its own case.
Likewise, a state bar may also decide not to pursue a disciplinary case based on a
Federal court disciplinary order - that decision would be considered in the Office of
the General Counsel's exercise of discretion.
Notices to Appear
- Service upon Respondents. The BIA recently emphasized in Matter of G-Y-R- the
importance of service of the Notice to Appear (NTA) and the obligations it imposes on
respondents. As you know, we have been complaining about delays between the service
of an NTA and its subsequent filing by INS with the Immigration Court, a matter not
discussed in Matter of G-Y-R-. We have suggested that a requirement that the charging
document be served (or possibly re-served) concurrently with its filing would avoid
many of the problems encountered. Coincidently, it has recently been noted that the
regulations prior to 1998, at 8 C.F.R. 3.14, actually did require service upon the
respondent pursuant to 3.32 "when a charging document is filed." The wording of 3.14
was changed slightly thereafter to its present form, which no longer clearly specifies
concurrent service and filing. Why was the wording of the regulation changed, and
would EOIR consider changing it back?
Response: Any reasoning or explanation behind this regulatory change would be in
the supplementary information to the regulation which was published in the
Federal Register at the time the regulation was amended. At 62 Fed. Reg. 10322-23,
there is a reference to the INS's ability to control when charging documents are
filed and to manage its resources. The public, including AILA, had an opportunity
to submit comments regarding this change at the time the change was proposed.
- Filing of NTAs. Delays in the filing of the NTA, the substantive legal implications of
these delays, the obligations imposed on the alien upon the filing of the Notice to Appear
and the penalties imposed on the alien if the alien does not attend proceedings require
refinement of the procedures for filing NTA.
- The regulations prior to 1998, at 8 C.F.R. 3.14 specifically required service upon the
respondent pursuant to section 3.32 "when a charging document is filed." Thereafter, the
wording under section 3.14 was changed slightly so that it is no longer clear that
concurrent service and filing are required. Do you agree that 8 C.F.R. 3.32 requires
simultaneous service of all documents including the NTA since this interpretation would
be in accord with ethical mandates requiring simultaneous service of all documents and
since the simultaneous service of a NTA notifies an alien that the INS has decided to
proceed invoking the requirement that the alien notify the Court within 5 days of any
change in address as required in 8 C.F.R. 3.15?
Response: The EOIR is unable to provide a response to this question, since the
agency does not provide advisory opinions regarding regulatory provisions.
- If you do not agree with item (a), would the EOIR consider promulgating a regulation providing a 120-day time frame during which the NTA must be filed with the
Immigration Court after service on the alien? Failure to file the NTA within this time
frame would mandate re-service of the document on the alien. This regulation, patterned
after the Federal Rules of Civil Procedure, would not prejudice the government as the
INS should not serve an NTA on an alien until it is ready to proceed. Should the INS
determine that it cannot proceed in a case 120 days after the service of the charging
document, the INS would be prohibited from filing the document until it re-served the
document on the alien requiring the INS to verify that the correct address of the alien is
contained on the NTA and that the charges are not moot. Such a regulation establishes a
reasonable time frame for proceeding after the service of an NTA and permits the alien to
have some predictability as to when to expect proceedings to commence. Currently,
aliens have to check with the Immigration Court an infinite amount of time to determine
if a charging document has been filed with the Immigration Court.
Response: It is within the prosecutorial discretion of the INS to determine the
appropriate time to file a charging document with the Immigration Court. The
EOIR cannot comment on INS policy and procedures regarding the filing of
charging documents with the Immigration Courts.
- If you do not agree to item (a) above, do you agree that any altered NTA (including
changes to the respondent's address) should be re-served on the alien before it is filed in
Immigration Court since the certificate of service would only cover the NTA that was
actually served on the alien and not any subsequent deletions, additions or amendments
to it? Please note that this would comply with ethical mandates and allow the alien to
verify that the INS received and processed any address correction information.
Response: Please see EOIR's response to question 19(b) above. In addition, the
EOIR notes that 8 C.F.R. 3.15(d) requires the alien to notify the Immigration Court
if the charging document he or she receives does not contain an address or contains
an incorrect address.
- Would the EOIR adopt a regulation disallowing the filing of an NTA that was issued
more than 12 months earlier? Such a regulation would not prejudice the INS. Should the
INS opt to proceed on a charging document over 12 months old, the INS could re-issue
and re-serve the charging document after re-verifying the charges and the alien's address.
The establishment of a limitation on the age on a NTA would facilitate better notice to
attorneys and aliens as they would know the INS could not proceed on a charging
document that is more than one year old. Moreover, an alien or the attorney would only
be required to check the Court recording to ascertain whether a case has been filed for a
one year period. After that time, the parties could assume, absent re-issuance of the
charging document that the INS decided not to proceed in the matter.
Response: Any requests for amendment of the regulations to prevent the filing of
stale NTAs should be directed to the INS, which both issues the NTA and has the
prosecutorial discretion to determine when to file the NTA with the Immigration
- Motions under St. Cyr. Hundreds, perhaps thousands, of people will be directly
affected by the Supreme Court's decision in INS v. St. Cyr. Most of them are currently
in proceedings, either at the Immigration Judge level or on appeal to the BIA. Some are
involved in cases pending in the Federal courts. Others have final orders of removal
outstanding against them, but have not yet been removed. Still others have been
removed and are outside the United States. Will the EOIR consider modifying its
regulations to accommodate motions to reopen or reconsider involving St. Cyr issues?
Given that the St. Cyr decision results in a substantive change in the law, announced by
the highest component of the Judiciary (a co-equal branch of the federal government), it
would seem fair to exempt St. Cyr-related motions from the current time and number
limitations and fee requirements. Additionally, provision should be made for motions
made from abroad by respondents who have already been removed.
Response: A regulation in response to the Supreme Court decision in INS v. St. Cyr
is currently being developed, therefore the EOIR is unable to comment regarding
any specific aspects of that regulation. Currently, in response to the Supreme Court
decision, the Board 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 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
- Fees for joint motions. Why does a joint motion to reopen require a fee when
government attorneys are not required to pay fees for motions?
Response: Under the current regulations, general motions to reopen, even if they
are jointly filed, require a fee, under the theory that the case has already been
adjudicated and it is an administrative burden (with added costs) to the Federal
government to reopen the case. A fee is required from the Respondent because it is
the individual or his or her representative who is physically filing the motion and
who is seeking a benefit or relief that accrues to the individual, and not the INS.
- Pro Se Motions to Change Venue. Many unsophisticated pro se Respondents who move
either immediately prior to, or shortly after, initiation of proceedings are unaware that
they may request a change of venue, that a change of address may lead to a sua sponte
change of venue or of the requirements for a request to change venue. Unaware of these
procedures, relocated Respondents often either travel at great expense to attend a hearing
or, having informed the Court of their new residence and desire to appear at a more
convenient location, run the risk of receiving an in absentia order. Conversely, it is
inappropriate to expect the EOIR to treat all changes of address as a pro se Motion to
Will EOIR consider implementing procedures to inform and protect these Respondents
by responding to venue-triggering changes of address with information on the
availability and requirements for a properly filed Motion to Change Venue?
Response: The EOIR is discussing the possibility of revising the Change of Address
Forms to include a reminder to aliens that filing the Change of Address form does
not automatically change venue, and to inform the alien of the requirements and
procedures to follow in order to request a change of venue.
- Representation by OIL. Who does the Office of Immigration Litigation in DOJ
represent before the courts, the INS or the EOIR/BIA? If INS, under what
circumstances, if any, does OIL represent the EOIR?
Response: The Office of Immigration Litigation (OIL) has both affirmative and
defensive litigation responsibilities. It represents the INS, the Department of State,
and other agencies (including the EOIR) that regulate the movement of aliens
across and within the borders of the United States.
Although they are separate entities, both the EOIR and the INS are part of the
Department of Justice and therefore are subject to the ultimate authority of the
Attorney General. For example, because the Attorney General has expressly
delegated to the Board the authority to exercise such discretion and authority that
has been conferred upon him by law, a decision issued by the Board is regarded as a
decision by the Attorney General himself, and is binding on all officers and
employees of the INS, except as it may be modified or overruled by the Attorney
General or the Board. See 8 C.F.R. 3.1(d)(1), (g) (2001). Similarly, regulations
promulgated by the Department are binding on all Department entities, including
the INS, the Board, and OIL. In sum, because both the INS and EOIR ultimately
represent the interests and carry out the tasks of the Attorney General, OIL
represents both the EOIR and INS in Federal Court as delegates of the Attorney General.
- Accredited organizations. We know that local Immigration Courts maintain lists
of organizations and representatives accredited by the BIA for representation before the
Courts and the INS. Is there a current, centralized list of all accredited organizations and
individuals that the public can readily check? Could it be posted on your website?
Response: Yes. The current "Recognition and Accreditation Roster" is available
on the EOIR internet website at : http://www.usdoj.gov/eoir/statspub/raroster.htm. This list is updated quarterly and contains alphabetical listings of both recognized
organizations and accredited individuals.
- Statistical information. We are aware that the EOIR maintains statistics on the numbers
of asylum grants and denials. Are statistics also collected as to the grounds of denial
(e.g., one-year deadline, "frivolous", etc.)? If not, would it be possible to do so? How
can we obtain this information?
Response: The EOIR's database does not track the grounds for denial of asylum
applications. Currently, there are no plans to capture and track this information.
- Electronic Filing and Access. What is the current status of the EOIR's efforts on
electronic filing and access to information over the Internet?
Response: The EOIR is holding preliminary meetings internally to discuss the
feasibility of implementing electronic filing at EOIR. In early 2002, the EOIR plans
to meet with outside parties to discuss this issue.
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