EOIR/AILA Liaison Meeting
March 7, 2002
- Coercive Family Planning Policy Cases: Regarding asylum grants on grounds of coercive family planning policies: As you know, Immigration Judges are required in such cases to issue any grants on a "conditional" basis pending availability of one of the 1000 numbers. It seems these cases then drop off the radar and it is difficult to learn when the case becomes eligible tocome off the "conditional" status.
Will EOIR request that Immigration Judges make formal findings on the record when the"clock" is stopped during the pendency of an asylum application through no fault of the alien? When there is no indication as to why the clock has stopped, who should we deal with at EOIR?
- What agency or agencies keep track of the 1000 grants per year permissible under INA § 101(a)(42)? Should the respondent expect to receive notification when one of the 1000 becomes available to her/him?
RESPONSE: The Immigration and Naturalization Service (INS) is charged with keeping track of the conditional asylum grants based on coercive population control policies. At the end of each fiscal year, the Immigration Judges, the Board of Immigration Appeals (Board), and the INS asylum offices around the country, each report their conditional grants of asylum to the Asylum Office at INS headquarters. The Asylum Office ranks the aliens chronologically based on the date of the conditional asylum grant and assigns to the first 1,000 aliens on the list an authorization number in conformance with the cap of no more than 1,000 grants of asylum per fiscal year based on coercive population control policies. The waiting list has become longer than one year, and INS needs to re-check fingerprints for aliens on the waiting list. INS has already sent out notices to the next 2,000 aliens on the waiting list asking them to submit new fingerprint cards. When those have been examined and cleared, INS will send a notice to each alien or his or her attorney advising that the conditional status of the asylum grant has been lifted, and the alien is now fully eligible for all asylum benefits. This question was previously answered at the March 2001 Liaison Meeting. Please see EOIR's answer at: http://www.usdoj.gov/eoir/statspub/eoirailaMarch01.htm.
- If not, how can the public ascertain progress towards availability of one of the 1000?
RESPONSE: The public can also check the EOIR web site for more information. Under News and Information, there is a June 5, 2001, press release announcing the issuance of notices to aliens who received conditional grants of asylum between March 19, 1999, to August 4, 1999. For a copy of EOIR's press release please see: http://www.usdoj.gov/eoir/press/01/cpcasylum01.htm.
- In cases where an appeal to the Board is taken and the Board ultimately grants asylum, what date is assigned as the respondent's place in line, the date of the Immigration Judge's decision or the date of the Board's?
RESPONSE: If the case is appealed to the Board, and the Board grants conditional asylum, the alien's place in line is determined by the date of the Board decision. When there is an appeal from the decision of an Immigration Judge, the Immigration Judge's decision is not deemed final. 8 C.F.R. § 3.39. An individual is considered to have a conditional grant of asylum as of the date of the final agency decision.
- If EOIR keeps track of these numbers, could information concerning cut-off dates or other indicia of progress towards availability be posted on your web site?
RESPONSE: As mentioned above, the cutoff dates are posted on both the EOIR and the INS web sites.
RESPONSE: All continuances must be accurately assigned to the appropriate requesting party. The clock is tolled (stopped) for any alien caused delay. The clock remains stopped for the total number of days during which the delay continues. Immigration Judges must continue to give due consideration to requests from all parties for adequate time to prepare and to present their cases at the individual hearing. For further guidance on this issue, please see the Office of the Chief Immigration Judge's Operating Policy and Procedures Memorandum at http://www.usdoj.gov/eoir/efoia/ocij/OPPMLG2.htm.
EOIR will not require Immigration Judges to make formal findings on the record when the "clock" is stopped. However, if a party wishes to know whether his or her action will stop the clock, the party should inquire at the time of the action. If there is a question regarding the clock, please contact the Court Administrator. If the issue cannot be resolved at that level, then you may contact Loreto Geisse, Counsel to the Chief Immigration Judge, at: (703)305-1247.
Issues of Misconduct
- EOIR Disciplinary Actions Against Private Practitioners: Please provide an update.
- In the past, the majority of reported disciplinary actions have resulted from reciprocity following sanctions from another authority. Have any suspensions, expulsions, or lesser disciplinary actions been taken in response to complaints? If so, how many of those complaints came from the Board or Immigration Judges? How many from INS? The general public?
RESPONSE: The Office of the General Counsel (OGC) has pursued three (3) disciplinary cases which originated from complaints filed with OGC. Two cases involved complaints lodged by Immigration Judges. The third case was initiated by OGC after discovering that the attorney has continued to practice before EOIR after she had been immediately suspended by the Board. One case resulted in the issuance of a warning letter, another resulted in the issuance of an informal admonition, and the third resulted in a suspension of one (1) year.
- As you know, the regulations provide that complaints against INS attorneys must be filed with the Department's Office of Professional Responsibility. Have any complaints been filed with OPR by EOIR personnel against any INS attorney?
RESPONSE: EOIR would not necessarily know if an EOIR employee had filed a complaint with the Office of Professional Responsibility (OPR) concerning an INS attorney. EOIR employees can file complaints directly with OPR and are not required to notify EOIR officials. In the course of investigating a complaint, OPR may contact the Immigration Judge or the Office of the Chief Immigration Judge with questions about the complaint filed. However, confidentiality prevents us from disclosing any details.
- Allegations of Immigration Judge Misconduct: It is our understanding that complaints about Immigration Judges should be submitted in writing to the Office of the Chief Immigration Judge (OCIJ). Unfortunately, however, there is a great deal of uncertainty as to what actions OCIJ takes on such complaints, and what types of complaints are likely to be of concern to OCIJ. Accordingly, there is a sense among some practitioners that it does "no good to complain because nothing ever happens," whereas from OCIJ's point of view many of the allegations simply may not warrant corrective action. In the interest of saving everybody time and limiting such complaints to matters that are actually considered "misconduct" by EOIR, several questions arise:
- What types of actions, if any, has OCIJ taken where complaints have generated genuine concern about the Immigration Judge's conduct?
RESPONSE: The OCIJ takes all complaints against Immigration Judges very seriously, particularly those impugning the integrity of the hearing process. A complaint against an Immigration Judge may be filed with OCIJ, and it may later be referred to OPR. A complaint can also be filed directly with OPR. Any action taken by either OCIJ or OPR may be considered confidential. OCIJ does not disclose any action taken against an employee. However, OPR may disclose disciplinary action taken against a Department employee in limited circumstances and only when such a disclosure would not violate the employee's privacy interests.
- How many written complaints concerning Immigration Judge conduct have been received by OCIJ? In what percentage of cases, if any, has EOIR taken formal or informal corrective action?
RESPONSE: The OCIJ does not keep statistics on this.
- Presumably, allegations that an Immigration Judge has violated some provision in the EOIR Ethics Manual -- conflicts of interest, bribery, etc. -- would generate an inquiry but such complaints are thankfully rare. Would anything outside the Ethics Manual qualify as "misconduct?" Without revealing confidential details, can you give us some examples of the types of allegations that are likely to generate an inquiry and action by OCIJ?
RESPONSE: The OCIJ makes a great effort to investigate all complaints, regardless of whether the complaint would qualify as a violation of the EOIR Ethics Manual. AILA is reminded that the Department of Justice's Office of Professional Responsibility also accepts complaints against Immigration Judges. For specific examples of what constitutes misconduct please see Title 5, Part 2635 of the Code of Federal Regulations.
- If there is a common pattern that can be identified and hopefully eliminated, can you tell us what types of allegations received by OCIJ are not considered to be "misconduct" warranting corrective action?
RESPONSE: Each complaint is unique as it involves a separate set of circumstances, so there is no "common pattern" that can be readily identified. However, the OCIJ notes that some complainants seem to confuse an objection or disagreement with an Immigration Judge's ruling on a legal issue with an objection to the Immigration Judge's conduct resulting in a violation of ethical or professional responsibility codes. Objections to legal issues need to be made on appeal to the Board.
- We continue to receive complaints from our membership of inappropriate behavior by some Immigration Judges. In the interest of reducing complaints that are of no interest to OCIJ and focusing only on matters considered "misconduct", would any of the following examples be likely to generate an inquiry?
- Immigration Judge prompts Service Trial Attorney to object to evidence offered by respondent's counsel.
- Immigration Judge suggests to Service Trial Attorney that new charges be lodged against respondent.
- In cases where Respondent has more than one witness, Immigration Judge dictates the order in which respondent's counsel must call witnesses rather than allowing counsel to present the case in the manner her or she deems effective.
- Immigration Judge refuses to allow witnesses who are present to testify on the grounds that their testimony is cumulative or unnecessary.
- Immigration Judge repeatedly interrupt's counsel's examination of witnesses, and takes over the questioning for a prolonged period of time.
RESPONSE: It is not possible to generalize or give advisory opinions, because all complaints that are received by OCIJ are reviewed and decided on a case-by-case basis. For complaints that are legal, rather than ethical, in nature, please appeal them to the Board of Immigration Appeals. Moreover, each complaint may be considered confidential, and thus not subject to disclosure to the public.
- Burden of Proof. INS has the burden of proving deportability or inadmissibility. However, INS frequently is unprepared to carry its burden in the early stages of the proceedings. Rather than terminating the proceedings, many Immigration Judges insist on scheduling a merits hearing and requiring identification and filing of all forms of relief before deportability has been established, stating that he/she will rule on deportability at the time of the merits hearing. Thus, without any evidence advanced by the INS, the respondent is required to submit information regarding deportability when submitting applications for relief.
- Would you agree that an Immigration Judge should rule on the issue of deportability or inadmissibility before requiring the filing of relief applications?
RESPONSE: Neither the statue or the regulations require that an Immigration Judge rule on the issue of deportability prior to having the alien file an application for relief.
- What recourse is available when the immigration judge refuses to rule on deportability before the merits hearing is scheduled?
RESPONSE: None. See response to question 6(a) above.
Immigration Court Administration
- The National Association of Immigration Judges has recently published a position paper urging that the immigration court should be removed from the Department of Justice. Does EOIR have any official position on this proposal?
RESPONSE: The National Association of Judges is an independent organization and does not speak for the agency. The union's proposal is similar to legislation introduced regularly over the past twenty years. The EOIR opposes this position for several reasons. The efficient administration of our immigration system depends on the fact that all aspects are housed in the Department of Justice. The Board of Immigration Appeals and the Immigration Courts exercise the authority of the Attorney General as administrative tribunals to assist him in carrying out his duties under the INA. Serious problems could arise should the adjudication of immigration cases be removed from the Department of Justice. For example, it is critical for the Attorney General to be able to manage the process in the area of immigration emergency planning.
- Territorial reach of Immigration Courts: Your web site provides a lot of valuable information concerning Immigration Courts around the country. One area not covered, however, is the territorial reaches of the various Immigration Courts -- to which court should a respondent seek a venue change if he lives in Abilene, Texas, for example. Also, when hearings are held in a detail city, knowing which Immigration Court covers the detail city -- and therefore which Local Rules apply -- would be helpful. While INS regulations set forth the territorial coverage of its offices, EOIR regulations do not include this information. Would EOIR consider including on its web site the territorial jurisdictions of its various courts, including detail cities?
RESPONSE: The Office of the Chief Immigration Judge has an administrative control list, which outlines Immigration Court jurisdiction over details cities and IHP sites. The administrative control list is available on the EOIR web site at:
www.usdoj.gov/eoir/vll/courts3.html. The local rules for all courts, including detail sites are available on the EOIR web site at: http://www.usdoj.gov/eoir/efoia/ocij/locopproc.htm .
- Is there a possibility of expanding detail assignments by Immigration Judges into areas, particularly in the South, where there are large numbers of immigrants, but the nearest Immigration Courts are several hundred miles away? Some IJ's have been very flexible with telephonic hearings, but that doesn't help for merits hearings or unrepresented respondents.
RESPONSE: The OCIJ is always reviewing its caseload, to determine where details are needed. This year, we have added regular details to Memphis, Atlanta, Orlando, San Antonio and Bradenton to assist with the increased caseload in these Courts. The OCIJ has also hired judges for Atlanta, Orlando, Memphis, and Hartford.
- We understand that INS is now filing Notices to Appear (NTAs) with EOIR via E-mail in Chicago in detained cases. We also understand that there have been some glitches in the electronic filing process and NTAs are recorded as having been filed at EOIR, in some cases, months after they were electronically sent. Have these glitches been rectified?
RESPONSE: The INS does not file any NTA electronically anywhere in the country. INS has been involved in the Interactive Scheduling System (ISS) which permits them to access EOIR calendars for scheduling purposes. However, no items are filed through the ISS.
- "Special" 9/11 Proceedings: The Creppy Memorandum on "special" closed post-9/11 hearings doesn't include a procedure to get the client out of the closed hearing loop. One AILA member filed a "motion for a normal hearing" after the FBI cleared the client. The INS didn't oppose it, and the client is back on the normal track (open hearings, information on the 800 number, etc.). Is this the standard procedure? Should we advise AILA members to use this procedure? What would happen if INS opposes the motion? Can Immigration Judges make an independent ruling on such motions?
RESPONSE: Under the Creppy directive, the practice of the Immigration Courts has been to hold closed hearings in "special interest" cases, until law enforcement officials responsible for the terrorism investigations indicate that they no longer have an investigative interest in the alien.
- Please provide any information that you can regarding the recent proposed rule relating to BIA reform and streamlining of the appeals process.
RESPONSE: Given that we are in a comment period for this proposed rule, EOIR cannot respond specifically to this question at this time. Public comments are due by March 21, 2002. We look forward to receiving any comments that AILA may have.
- The Attorney General has cited a backlog of 55,000 cases at the BIA. Concerning this backlog, several questions arise.
- To what extent, if any, is this backlog attributable to the many years prior to its recent expansion when the Board consisted of only five members?
- Can you tell us how the backlog breaks down by nationality; i.e., what nationalities represent the highest percentages of cases pending at the BIA?
- To what extent has the backlog been effected by the streamlining program initiated in 1999 (including single member affirmance without opinion in cases meeting established criteria)?
- The Board was composed of five permanent Board Members until 1995, when it expanded to 12 positions. The increase in the pending caseload at the Board is not due to any one factor, but results from a number of circumstances. There has been a dramatic increase in the number of appeals filed with the Board. The number of appeals filed at the Board has risen 500% since 1985, when the Board received just under 5000 cases, to FY 2000, when it received in excess of 30,000. The reason for the increase in appeals is due primarily to greater INS enforcement efforts, resulting in more proceedings before Immigration Judges and greater numbers of subsequent appeals. Moreover, during this time there were dramatic changes in the immigration laws, beginning with the Refugee Act of 1980 and culminating in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. These changes have contributed to an increasing appeal rate, from approximately 10% to 15% since FY 1996.
- The Board's pending caseload by the top ten nationalities is as follows: Mexico - 19%; China - 18%; Haiti - 8.4%; Guatemala - 5.8%; India - 4.5%; Colombia - 2%; Mauritania -1.9%; El Salvador - 1.8%; Peru - 1.7 %; Albania - 1.7%, and; All Others - 35%.
- Much of the Board's success in beginning to reduce its pending caseload is attributable to the "streamlining" initiative. Of the approximately 32,000 cases completed in fiscal year 2001, 15,372 were issued by the streamlining panel.
- BIA Cases "Certified" to the Attorney General: As you know, decisions of the BIA may be certified to the Attorney General at the request of a majority of Board Members or the INS Commissioner, or at the direction of the Attorney General. 8 C.F.R. §§ 3.1(h). Persistent rumors suggest that the current Attorney General has recently certified a significant number of BIA decisions for review, prompting several questions:
- How many BIA decisions have been certified to the Attorney General in the past year? How many of those were at the Attorney General's direction?
- Have any of the BIA decisions certified been previously published as precedents?
- How many BIA decisions were certified at the direction of the Attorney General in the previous ten years?
- What criteria, if any, have been developed for certification?
RESPONSE: Four cases were certified to the Attorney General last year, all of which were at his direction.
None of the four decisions were precedents. We do not know the exact number of cases certified at the direction of the Attorney General in the past ten years. Finally, there is no set criteria for which cases are certified to the Attorney General. The circumstances under which a case may be referred to the Attorney General are stated in 8 C.F.R. § 3.1(h).
- BIA Openings: We know that two BIA Members retired last year, Chairman Schmidt stepped down as Chairman and became a regular Board Member, and other Members have been added.
What is the current staffing level of the BIA? Are there openings remaining to be filled? Has the position of Chair been filled on a permanent basis? Do you anticipate any announcements concerning BIA staffing in the near future?
RESPONSE: There are presently 19 members serving on the Board under the current regulations, however, the proposed regulation would reduce the number of Board Members to 11. Accordingly, there are no plans for announcements of new positions. Lori Scialabba continues to serve as the Acting Chairman.
- BIA Jurisdiction. In a recent case arising in Houston, a juvenile asylum applicant who had been denied by the Immigration Judge and reserved appeal was removed to Honduras while this attorney was filing a timely appeal to the BIA. The removal was clearly premature, unlawful, and without notice to counsel who only learned of his client's removal after the appeal was filed.
When counsel learned of the removal and sought help from INS counsel, the Service responded by urging the removal as grounds in a Motion to Dismiss the appeal. Without awaiting a response from counsel, the Board immediately acted to dismiss the appeal for lack of jurisdiction. The case is now pending in federal courts.
Cases of unlawful removal are thankfully rare, but certainly not so rare as to make the Houston case unique. As you are aware, we have raised the possibility of amending EOIR regulations to permit the BIA to retain jurisdiction in cases where the respondent has voluntarily departed the United States. This issue is admittedly complex and therefore, still under consideration between AILA and EOIR. The recent case from Houston raises a simpler, more limited question that can hopefully be addressed in the interim: Does the BIA retain jurisdiction where the respondent has been unlawfully removed by INS while a direct appeal is pending before the BIA, or during the 30-day appeal period where the respondent has reserved appeal? If not, will EOIR consider a limited amendment to the regulations permitting the Board to retain jurisdiction in such cases?
Such an amendment would operate to protect the Board's jurisdiction where it has been properly and timely invoked.
RESPONSE: The legal issue of the Board's jurisdiction following the removal of an alien from the United States can only be addressed in the context of a case adjudication by the Board. The Department does not presently have plans to expand the Board's jurisdiction to include aliens who are outside of the United States.
- We continue to hear complaints about delays in the Board's handling of comparatively simple or uncontested matters such as motions to remand, withdrawals of appeals for reinstatement of voluntary departure, etc. Is there a special panel or other "fast track" at the BIA to which such matters should be addressed? How should they be identified for expedited handling? What, if anything, can be done to move motions already pending onto the "fast track.?"
RESPONSE: Procedural or ministerial matters such as uncontested motions and withdrawals of appeals are screened and forwarded to the Board's streamlining panel for adjudication and accordingly are handled in quick fashion in the vast majority of cases. There is no need for counsel to identify them as an expedited matter other than to clearly identify the type of motion or other matter being filed with the Board. In the rare circumstance that such a matter has not been adjudicated in a timely fashion, counsel may file a motion to expedite with the Board, pointing out that the matter is uncontested or otherwise procedural or ministerial in nature.
- Regarding cases affected by the Supreme Court decision in INS v. St. Cyr:
- What should practitioners do, if anything, for cases that have been fully briefed before St. Cyr and are still pending on appeal at the BIA?
- What, if anything, should practitioners do in pre- St. Cyr cases where § 212(c) relief was held unavailable before the Immigration Judge, the case should now be remanded for a § 212(c) hearing, and a briefing schedule is now set on a case before the BIA?
- For cases where a final order of deportation or removal has already been entered by the BIA more than 90 days ago, will the Board consider INS v. St. Cyr a fundamental change in the law such that its sua sponte authority to reopen may be invoked.
- Will regulations concerning these issues be released by EOIR? If so, can you tell us when to expect them?
RESPONSE: For cases that have been briefed before the St. Cyr decision, counsel should file a motion to remand with the Board if INA section 212(c) eligibility is not already an issue on appeal. If section 212(c) eligibility is already an issue, the Board will consider St. Cyr in determining eligibility and whether the case should be remanded, but it may be to the alien's benefit if a supplemental brief is filed to point out how St. Cyr now makes the previously ineligible alien eligible for relief.
For those cases in which a brief has not been filed, and section 212(c) relief was found unavailable before the Immigration Judge, counsel should file a brief with appropriate arguments as to why St. Cyr now renders the alien eligible for relief so as to warrant a remand. A brief is required to ensure that section 212(c) relief is made an issue on appeal. Also, if the Notice of Appeal stated that a brief would be filed, the failure to do so may subject the appeal to summary dismissal. The Board, in response to untimely motions filed as a result of St. Cyr, 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 that 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 decision.
A regulation in response to the St. Cyr decision is being developed and is under consideration at the Department. It is unclear when the regulation may be published.
- Matter of G-Y-R, Int. Dec. 3458, (BIA 2001) clarified that entry of an in absentia order was inappropriate where an alien had not received or could not be charged with receiving a Notice to Appear (or presumably an Order to Show Cause).
- What should practitioners do, if anything, on Motions to Rescind pending before EOIR or the BIA briefed prior to the decision in Matter of G-Y-R-?
- For cases where the Immigration Judge or the BIA has dismissed a Motion to Rescind, where the Respondent would likely prevail under the rule in Matter of G-Y-R-, will the Board excuse time and number limitations to filing a Motion to Reconsider before the Board?
- As an alternative, should the Respondent re-file the Motion to Rescind with the Immigration Court, alleging the relevant facts under Matter of G-Y-R-?
RESPONSE: The Board will apply G-Y-R- as appropriate when adjudicating any appeal from an Immigration Judge's denial of a motion to rescind. Counsel is welcome to file a supplemental brief discussing G-Y-R-. If a motion to reconsider before the Board based on G-Y-R- is untimely, counsel may request that the Board reopen sua sponte, and the Board will consider the request when adjudicating the motion.
- It is our understanding that the Board has de novo review of cases and therefore, can address all issues presented to it on appeal, regardless of the party taking the appeal. If this is not true, that a non-appealing party is barred from raising issues on appeal, this can create a problem if an appeal is taken by only one party at the 30 day deadline. Would it be possible to create a rule akin to Federal Rule of Applicant. Proc. 4(a)(3) to permit any party to take an appeal within 30 days of the IJ decision or 14 days of the date an appeal is taken by the other party?
RESPONSE: Either party can raise issues on appeal. However, this is to be distinguished from challenging (appealing) an Immigration Judge's ruling on removability or his or her determination whether to grant or deny relief from removal. A Notice of Appeal must be filed in a timely manner in order to appeal the judge's ruling on removability or decision on relief. For example, if an Immigration Judge grants cancellation of removal but denies asylum (or vice-versa) and the INS reserves the right to appeal, it is incumbent upon the alien to file a timely appeal if he wishes to preserve his right to challenge the denial of the one form of relief. If the INS later declines to appeal, the alien may file a motion to withdraw his or her appeal. In light of this course of action being available to the alien, EOIR does not believe an amendment to the regulations is necessary, particularly where there is no evidence of widespread difficulties under current practices.
- Please confirm that only lawful permanent residents and U.S. citizens need to sign the forms EOIR-27 and EOIR-28.
RESPONSE: The EOIR has taken this issue under advisement. We are unable to provide an answer at this time.
- Has EOIR further considered certifying court orders? This has proved to be of greater importance since many states are now only issuing state drivers licenses, such as Florida, if an alien can show lawful status (asylum grant, adjustment grant...). Many of these states are refusing to accept EOIR orders as they are not certified.
RESPONSE: EOIR orders speak for themselves, and an Immigration Judge's signature is all that is required to verify that it is a true order. Moreover, we do not have the staff resources to certify all of our orders. EOIR documents are not identity documents, and should not be used as such, particularly since an EOIR order does not state on its face whether the case is on appeal, and hence final. Instead, please refer this question to the INS for resolution, as it is the INS that is charged with the responsibility of issuing documents verifying that an alien is in proper legal status. This was previously discussed during our March 22, 2001 and November 29, 2001, liaison meetings. Please seehttp://www.usdoj.gov/eoir/statspub/eoirailaMarch01.htm and http://www.usdoj.gov/eoir/statspub/eoiraila0111.htm for the previous questions and answers.
- The hearing notices printed by Immigration Court personnel at master calendar hearings to remind respondents and attorneys of the next setting are printed in duplicate. This means that represented respondents can have their written notice, or their attorneys can have them, but not both. Would it be too much trouble to print an additional copy of the notice for counsel?
RESPONSE: The OCIJ will not print out extra copies of the hearing notice, as notice to the alien or his representative is sufficient, and OCIJ does not have the resources to provide additional notices.
- Can EOIR provide guidance on the appropriate standards for withdrawal of counsel, especially in pro bono cases? Some AILA attorneys who are willing to perform pro bono representation find themselves in an untenable position with regard to entries of appearance. Once the attorney files the EOIR-28, he is not permitted to withdraw regardless of the ethical problems that can arise in a case which would warrant withdrawal but preclude disclosure to the court. In other instances, clients are transferred to remote detention facilities making continued representation unduly burdensome. Equally troublesome is the practice of some courts that grant withdrawals "conditionally," continuing to send notices to the withdrawn attorney and requiring him to notify his "ex" client. The general rubric of withdrawal in the "discretion of the court" is not adequate to deal with these situations.
RESPONSE: The guidelines for withdrawal of counsel are located at 8 C.F.R. §§ 3.17(b) and 292.4. For further guidance, please see Matter of Rosales, 19 I&N Dec. 655 (1988), which discusses withdrawal of counsel and conditional withdrawals (including hearing notices).
- Petition Adjudications. In past meetings, we have understood that there have been ongoing discussions between EOIR and INS concerning expedited adjudication of visa petitions filed on behalf of beneficiaries in proceedings before the Immigration Court or the Board. Are there any further developments? This continues to be a constant, nagging problem and a waste of everyone's time.
RESPONSE: Since the last AILA/EOIR liaison meeting there have not been any further developments on this issue.
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