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Basics of Immigration Court Proceedings

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Basics of Immigration Court Proceedings

Representing clients in immigration court requires skill, innovation, and perseverance. In this program, immigration attorney Ruby L. Powers will lay the groundwork for understanding the elements of the removal hearing process, considerations during each stage, and best practices for success as an effective litigator in immigration court. Powers will share from her 14 years in practice, having represented clients in more than eight states in this Federal area of practice, in the detained and non-detained setting.

Transcript

- Hi, everyone. I'm talking to you today about the Basics of Immigration Court Proceedings. My name is Ruby Powers, and I'm with Powers Law Group. It's an immigration law firm based out of Houston, Texas. Now, when we say the Basics of Immigration Court Proceedings, I don't think anything's too basic about it, but what is important to mention is that we're gonna try to get down to the basic level and a little bit more, so this is really something for somebody who's probably never done court could take advantage of this and get up to speed. Someone who's had some court experience, I think it could be a really good refresher, and you know, like with most of these types of things, you have to listen, do work on multiple times, and then things start clicking and start making sense. So a little bit about myself, I am been licensed since 2008. I started my law firm in 2009. Since then, I've had a steady stream of court work except for the time when I moved to Dubai for a little bit. I'm board certified in immigration law for nearly a decade and speak Spanish. I have a good knowledge of some other languages, which helps me understand a lot of my clients that I interact with, and in general, I would say I'm a big proponent of advocacy for my immigration clients and the community at large. As well as love law practice management, I recently became an adjunct professor for South Texas College of Law Houston and also am teaching some business courses at Houston Community College. I also wrote the book called "Build and Manage Your Successful Immigration Law Practice Without Losing Your Mind" for the American Immigration Lawyers Association. So I would say that I have had quite a lot of experience in court, and I'm gonna tell you a little bit more about that, but let's talk about what our learning objectives are going to be. So there's a lotta content here, actually, so you need to know your judge, the court circuit, commencement of proceedings, notice to appear, pleadings proceedings, and admissibility versus removability, just a refresher about that, burden of proof, forms of relief. There's many possibilities. A lotta times, you might start seeing the same ones over and over again, then you start getting those templates and get familiar with them, so that's great. Preparing for a master calendar hearing and things that could start before that hearing and elements of that master calendar hearing, filings with the court, preparing for a merits hearing, which is the final hearing, hearing on the merits. H-O-M, that's what we call it, and elements of that merits hearing, and then post-hearing consideration, so let's go ahead and dive in. So you know, it takes a lot of work to represent clients in court, and honestly, there's quite amount of stress and anxiety. I don't think everybody has the skillset to be a litigator. You know, it's crazy: I feel like I enjoy it, but then I also can still get stressed out and have my nerves, even if I've been doing this for 14-plus years because I actually, the first time I ever did an immigration court case was when I was a law student at U of H. I visited U of H my last year, and I helped represent some minors, actually. I was a law student representing minors for asylum, and now, to this day, my fellow law student is actually just became a judge recently, so it's crazy how everything's come full circle. So I'm gonna talk about the elements of a removal hearing process, considerations of what to say each stage, and how to prepare, and just some other aspects that you need to be strong and to be able to do this type of work. This isn't for everyone, and the other thing is that we're recording this around September 2022, and what's important to note is that the immigration courts around the country were down for almost a year and a half, if not more, depending on the region, so what I've seen is there seems to be a little bit of a gap in people's experience in terms of experience in immigration court and a lot of newly minted attorneys who don't have exposure because they didn't get to go to court, and I'm actually been giving attorneys and some professors and different groups of people the opportunity to shadow me in court, and so I'm really glad to be able to share my experience, and I know we all can learn from each other. So I have represented clients in about eight different states. Because this is special law, I either flew to a court case or was able to conduct it over Webex or telephone. Now that post-COVID, there's a lot more opportunity to conduct court over Webex, it really has reimagined who we're able to represent in this world, and in fact maybe don't even have to travel that much for court anymore because we can always file motion for Webex. All right, so we're gonna go ahead and get started, and really, we are talking about a combination of detained and nondetained even though I'm not going into a lotta detail about the detained setting. All right, so I think what's really important to mention first is that you really need to know your judge, and this is made a little bit more tricky because there's a lot new judges, and some of them, we don't know their reputation yet, so that's something we have to keep in mind. Now, what you do in situations like that is that you ask around. You may be on a forum or the local bar, so this is one of the challenges of not practicing normally in that jurisdiction, but usually, you are just one or two attorneys away from knowing most immigration attorneys, so you can just ask around in that jurisdiction, and be, of course, respectful in that communication as well because you never know what could be screenshot or shared with somebody. So I would suggest finding their bio because when they get on the bench, there's generally a one or two-paragraph bio that explains a little bit about what their work experience was before they became a judge, and you can sorta get an idea if they were in a private practice, nonprofit, or had more of a government resume before they became a judge. Moving on to court, now, that's fun, right, because each court has their own little specifics. You have the manual on how you're supposed to do things, but then you sort of start to learn the personalities of all the courts. We do the administrators and the head judges, and I can say this because we now have about three immigration courts in, and I mean courts like acting independently. We have one in Houston, I mean. We have one in South Gessner. It's its own court just like San Francisco, and we have another one that's downtown in the downtown central Houston, and that's its own court like, let's say, New York City, for example, and then we have another one that's at the Greenspoint, and that's another individual one. Let's just say that's Miami. So each one of these would require a change of venue and runs on its own accord. Now, in addition to that, in the Houston region, well, metropolitan area, we do have some detained courts as well in the Livingston and Conroe area, so we have a lotta courts, and each one of them have a lotta courtrooms and judges, so anyway, I will stop talking about that, but that is something to consider. There's been a lotta growth. Some of the court locations didn't exist until recently, and there's a lotta new judges along that. There's a lot of new clerks, a lot of assistants to those judges, and there's a lot of learning all over the place, so yeah, it's gonna take a little while for everyone to learn and to be trained, just like it could be at your own firm. Now, it's also important to know the circuit law of where you're practicing and where your court might be. So you might be in Houston, but your client might be in Pennsylvania, and you need to know what the most critical case law that there might be splits on that are relevant at that time, so fun things that we need to know in this ever-changing area of law. All right, so the commencement of proceedings. Well, what you may or may not know is that the way you know that you're in immigration court is that you receive a notice to appear. Wait, wait, let me go back a second. It actually doesn't mean you're actually in immigration court by receiving the notice to appear. This is something that's gotten a little confusing of late. A notice to appear being properly filed with the immigration court is how you know that the commencement of proceedings have actually happened. In the last year or so, we've seen some very peculiar activity in which people are, immigrants are given a notice to appear physically and sometimes even given a date to show up for court, but when we actually went to court, this is true story, we found out that the notice to appear had not been properly filed. In fact, it was a nonhearing hearing, which really means it is a nonhearing nonhearing, so I would suggest that you go to the EOIR's website online and double-check by putting a number if they are actually in court or not. Now, if the NTA was properly filed, what generally will happen is that when you put the number in that EOIR website online portal, which, not the portal, sorry, the actual website for EOIR. The portal is for attorneys, and that thing's separate, but we'll speak about a little bit later, but basically, you can just easily, whether that you're the attorney or not, you can put the name that the A number in the EOIR website general website, and then if it shows a hearing or not a hearing, but it acknowledges that number, then that means the NTA was properly filed, and if it doesn't show anything, that means the NTA was not properly filed. Now, this actually affects lots of things, including where to file forms of relief, but I spent a lotta time talking about that, but do you know what, it actually is a very important point. So the commencing of proceedings is whether or not you truly are in immigration court or not and whether that NTA was properly filed. We're also gonna be talking about pleadings and admissibility, deportability, removability proceedings, and then who bears the burden, and that's really important, because going in, you need to know who's job is to do what, and then available relief. Now, removal proceedings begin when the US Department of Homeland Security files the notice to appear with the immigration court. As I said, it has to be properly filed. If it's not properly filed, then technically, the immigrant is not in immigration proceedings. Now, it is really good to make sure that you become familiar with the notice to appear. I've seen so many of them that I think sometimes, I am blind to what we're actually seeing, so it is good to go through and look at this chart to sort of break it down. So you can see the nature of the proceedings, what the conduct is being alleged, and what we call the allegations. You're generally going to see one of the top three. The name will be there. A number will be there. The address that they latest have on file will be there, and then they'll be one of these three boxes checked: you are an arriving alien, you are an alien present in the US who has not been admitted or paroled, or third, you have been admitted to the United States but are removable for the reasons stated below, and then they'll say the allegations, which normally, there's about four to six or so, and usually, attorneys will make note of it and whether allegations one through whatever, maybe it will say five, six, whatever, whether they admit those allegations, and whether or not they concede the charge, and so normally, those allegations will, that's like I have it memorized. It's pretty much you are not a citizen of the United States. You are a native of whatever country. That can also be debatable. You arrived in the United States on or around this time. That also can be debatable and argued, and usually, they might say you have not been admitted, inspected, or paroled, or you don't have proper documentation to stay after whatever date, and so it really depends on the specific facts. The charges against the foreign national immigrant are alleged what have been violated are listed as well, and then they may say to TBD a date to be set. That has actually caused a lot of confusion in litigation, and I really don't wanna speak to that because it is constantly changing, but let's just say there was some litigation that said that if you put TBD that that didn't give people proper notice as to where they were supposed to go, and that was giving, in some jurisdictions, the opportunity to get the case dismissed because there wasn't proper notice. Yeah, that was a mouthful, and then, there was also a time when there was just some made-up dates. I remember, I can't, it was a few years ago. They were just, before COVID, they were just making up dates and those dates just so that they could avoid being in violation of this litigation. Can you believe that? All right, and they got in trouble for that, and then they'll put the address of the immigration court. I'm gonna go ahead and say it here, but if you need to change your address with the court, you're supposed to fill out a form to do it and do it within five days. Now, just because you change your address doesn't necessarily mean there'll be a change of venue. Now, this can be very confusing for pro se applicants because they don't understand. With USCIS, though, if you change your address and another office has jurisdiction, then the case will be moved. Sometimes it takes a little extra nudging, but for the most part, it's not consistent between EOIR, which is the Executive Office of Immigration Review under the Department of Justice versus USCIS, which is under Department of Homeland Security. Now, you also have to note that the NTA changed over time, and there have been also now we call ECAS is when you can file things electronically. In, what was that? Oh my, that was, I believe it was early in the spring of 2022, I believe, maybe, or maybe it was like some of the end of 2021, but around that time, I think it mighta been spring 2022, they started saying from this day forth, if you are these types of cases, everything you will be filed will be online, the ECAS, and if you're, we'll call it ERAP, then you would be paper, and in preparation for this presentation, I found that there was recently something announced where there's somewhere on EOIR website where you can send an email to the court of the jurisdiction of the peace that you have and ask them to convert your paper filing case to an ECAS case, and on a form I saw recently, many attorneys were excited to hear that that was a possibility because they would prefer to be able to just upload in a moment's notice hearings and be able to receive those notices as opposed to having to file things with the court, driving, FedExing, you know, and there's also another matter. I once had a court case, a court filing, can you believe this, rejected, this was in early 2022, because I didn't have the original wet signature of an expert in the UK, and actually, the expert's signature was delayed crossing the ocean, and I argued, and I think that case is on appeal, but I argued that if this would've been an ECAS case, then it would've been accepted because whether it was a wet signature or it was a copy, no relevance, and I think there actually is some type of, some more guidance about that, and so I'm looking forward to fighting that issue, but anyway, let's go ahead and move on. So there has been basis to deny proper service on the respondent based on whether or not various factors: handwritten info, no changes to certificate of service showing altered documents served on respondent, date of the notice to appear created, date serviced on respondent. These are different things to look at when you are reviewing the notice to appear, and like I said, the basis to deny you a proper service has been changing constantly, so I'd rather you look that up at the moment that you really need to as opposed to me telling you and having to date stamp this presentation, which hopefully will be, well, hopefully is evergreen as it can for a little while. Now, pleadings, this is important. You can admit or deny the proper service on the client. If you deny, then that will cause some delays or some argument. If you admit, then they acknowledging they had the proper service, you would admit or deny the allegations. You would either, and you have to clarify which allegations. If you admit certain ones, deny certain ones, you need to be clear about the numbers, and you need to make proper notes. I will say that I've taken over cases many a time from another attorney, and it wasn't necessarily clear which ones they admitted and denied, and we had to try to get FOIAs or listen to the recordings or the tapes or the CDs or whatever, but be clear. Write that stuff down in your notes, please. Concede, deny removability, designate, decline designate country of removability. This comes into play with asylum, for example, where the best practice is not to designate a country of removability and leave that to a judge. Indicate possible forms of relief, that is basically what you're supposed to do so that the judge knows what they're going to be seeing and what the, it also helps allocate how much time that you'll need for a hearing as well as what applications will be coming forward. Okay, so the INA 212 about inadmissibility versus INA 237 about removability. So is the client inadmissible, removable? You need to know which type of hearings you're having, and make sure that you are aware of that and what the burden, your rights, what the next steps would be. This is very important to make sure that you have that. So admissibility, we know you look to INA 212, and this is something that they elaborate in many different forms in inadmissibility. So a lawful permanent resident, legal permanent resident who is violated the status while abroad or upon entry or who is engaged in criminal conduct, triggering inadmissibility, who would they not apply those lawful permanent residents whose criminal activity triggering inadmissibility occurred before IIRAIRA. So that's something to consider if looking to find when the crime charge occurred. Now, IIRAIRA, let's just go back for that for a second, is important to note that that was around '96, '97, 1996, 1997. It's really good to look exactly at the dates because there's the dates that it was passed and the dates that, there was different dates that it actually went into effect. Now, you're probably familiar with the different grounds of inadmissibility if you do anything with waivers. I liken it to the government is screening your client sort of like a laser going up and down, trying to find if there's anything wrong with them, and I try to put this in layman terms for clients as much as I can, and they're saying, "Were you present without admission? Did you not have the proper documentations? Did you fail to attend a removal hearing?" Which has a hefty penalty, depending on whether or not you had notice. "Was there a fraud, misrepresentation when applying for an immigration benefit?" False claim to citizenship, which has a heavy penalty, depending on whether you have an exception when it happened and what the circumstances were to that situation, and especially whether or not that was before 1996, when there was the change based on IIRAIRA. Also alien smuggling, unlawful presence, entry without inspection after prior removal or prior periods of unlawful presence, subsequent to EWI, which means, EWI means entry without inspection, and so that would be a permanent bar in that situation, that pattern I just mentioned, or no labor certification. Other inadmissibilities would be public charge, and in just very, very recent news, more guidance under the Biden administration too on when they would in fact find inadmissibility charge for public charge. There have been a bit more of a warning to that inadmissibility issue. They're also under seeks to commit espionage, sabotage, unlawful activity to overthrow the government, which those are really seriousness, and also could be health, and this is becoming more of an issue when people don't obtain vaccines. I haven't actually seen that go into effect in a removal proceeding in the court proceeding yet, and then there also could be other things about unlawful voter, human trafficker, polygamist, international child abductor. Now, certain grounds of inadmissibility do not have waivers for them, and just like most attorneys, right, we would say it depends, and this is annoying, right? We want something black and white that we could say, "Yes, this is one that applies on this," and, "No, this is not what applies," and so you can say these things. Okay, let's go over to false claim to citizenship. All right, well, there could be some exceptions if the person thought they were a citizen, if one of their parents was a citizen, if they were told they were a citizen. You have to look at those exceptions. Another thing is that you can overcome false claim to citizenship with certain forms of relief. I'm fairly certain the U visa is one, and also, I know this, is cancellation of removal, 42B, can overcome this as well, but that's very narrow, and also, you have to look when it happened. I believe it was September 30th, 1996, is really a turning point. Anything before was considered, and don't check the date exactly, but that is something to note. Anything before that was considered misrepresentation. Anything after that was a permanent bar, false claim to citizenship. Now, if you're an unlawful voter, it's important to know case law. Was it local, federal, what type of voting, permanent bars, controlled substance events, as public charge alien smuggling, at least ongoing. Sounds horrible. There was a time when they would find alien smuggling for almost anything, but there is a family unity exception waiver to overcome that, so that is very nice. Removability, you're looking at INA 237, individuals present in the United States after inspection by an immigration officer. Any alien admitted in the US be removed if the alien is within one or more of the following classes of deportable aliens. So you would look to lawful entry into the United States after inspection by, and this is what constitutes admission, and a lot of the definitions, if you didn't already know, are under the INA 101. So grounds of removability, inadmissible at time of entry, criminal offenses, violations of law related to official documents, security-related grounds of public charge, unlawful voting. Now, the conduct that constitutes grounds of inadmissibility but does not constitute ground of removability are reasons to believe it is engaged in drug trafficking, admissions of essential elements of a crime involving moral turpitude or controlled substance, and participation in prostitution or a commercialized vice. Conduct that constitutes ground of removability but does not constitute ground of inadmissibility: aggravated felonies, which are clarified in the INA 101, and they are, unlike crime involving moral turpitude, they are actually very well clarified, and so that can be something. Of course, there are also issues of... INA 101a43 is where you see the aggravated felonies, and they are listed out: domestic violence, stalking, child abuse, violations of protective order, and firearm offenses are another example of when it could be removability but not inadmissibility, so you want to see which one it is because it affects the burden of proof and a lot of other things. Okay, so the applicant for admission, the applicant bears the burden to prove eligibility. With the arriving alien, ICE bears the burden to show respondent is seeking admission. Lawful permanent resident, ICE bears the burden to prove with substantial probative evidence the legal permanent resident is removable, and the standard of proof is clear and convincing evidence the respondent is seeking admission, or clearly and beyond a reasonable doubt, the respondent is entitled to admission, so we're talking about the burden of inadmissibility. The burden of removability, ICE has the burden of proof by clear and convincing evidence to establish the respondent is removable, and it's really important to make sure that you make ICE meet its burden, deny allegations and charges on grounds of removability. If ICE cannot meet its burden of proof, then request to terminate the removal proceedings. If ICE can meet its burden, the burden of proof shifts to the respondent to show their eligibility by a preponderance of the evidence for relief removal. I had a case come up that it was, okay, I took it over from another attorney, and this poor client, he had had multiple judges and multiple trial attorneys, and when we went to court, because I couldn't, we were trying to terminate the case, and then at the last minute, it was not terminated, went to court, and in reality, this was a removability. It was supposed to be a removability hearing, but really, we spent it more of like a pretrial hearing to be able to figure out what we were supposed to do and who had the burden, and I said something like, "Well, we're ready to move forward," and then I said, "Well, oh, well, you're ready to move forward, okay," and I was like, "No, I'm ready for you to move forward because you have the burden," and so we spent about 45 minutes basically clarifying what was going on with the case and getting us up to speed, and that's actually just a side note, is really what's happening a lot with these court cases that have been a few years old or, I mean, I have some decade-old cases later in the year that have had multiple judges, trial attorneys, hearings, settings, and really, you almost just wanna just have a hearing just to figure out what's going on, and that's what a lotta judges are using scheduling orders to figure that out as well, so let's talk about the available forms of relief. Okay, this is not exhaustive, but this does mention a lot of them to consider, and what I would highly suggest is that you make a list, a checklist to go over for yourself that you are reviewing all the possible forms of relief that your client could be eligible for, and make sure that you explore all of those. So cancellation of removal for a permanent resident, which we call 42A, there's cancellation of removal for a nonpermanent resident, which we call 42B. So just briefly, for a 42A, well, a legal permanent resident, cancellation of removal legal permanent resident, that requires a certain amount of time in the country before they're put in proceedings and time of having their green card and good moral character. The 42B is 10 years or more before the clock stops. It stops with the issuing of the NTA or qualifying crime, extreme and unusual hardship to a US citizen or legal permanent resident spouse, parent, or child, and good moral character. Then there's also the special Violence Against Women Act cancellation of removal. You also, now, this is different from the actual just regular VAWA, and I have been able to get, when the client's able to get an IA 360 approved, and they enter legally, or actually, you don't even have to enter legally because there's a waiver for that, we've been able to get the case out of court and be able to do adjustment, so do know the difference between VAWA cancellation of removal versus regular VAWA. Then there's also asylum, withholding removal, and CAT, and these, know the differences between each one and when to use them. There's the adjustment of status, which could be under 245A, also 245I, and then there's different waivers. 212C, I think I've done a few of those, but usually the thing is is that you don't see 'em as much because most people resolve their issues at this point. Long-time legal permanent residents with a pre-1997, 1998 criminal conviction, and yeah, I was just thinking about that case that I had, but basically, you have to look to see, if you can just remember some older crimes and know that this is a possibility. 212H waiver for crimes, 212K for visa defects. The 237a1H waiver, now, that's a really nice one. The gist of it is, and you need to really know it, the specifics, but I'll just give you the high-level idea. It's that yeah, maybe you got your legal permanent residency through fraud somehow. Somehow, there was a mistake, but if you can show the equities like good moral character and positive equity, and well, the judge can grant it, and if this waiver is granted and you're eligible, then this could make you whole, and then your green card would be intact, and in fact, you could retain the legal permanent residency date that you originally provided, which means then, and I've had cases like this, once you get approved for the waiver, then you can go back and apply for naturalization, which usually why you even get put in court in the first place is 'cause you apply for N400, and then you get put in immigration court because they find that you got married when you shouldn't have, and your visa wasn't really available, and there was some appearance of fraud. That's a typical fact pattern that I've seen, and that's actually one of the more recent 237a1Hs that I did. Now, there's something called registry, which at the time that you are here since January 1st, 1972, and you have proof that you've been here the entire time, I've only done one in my 14 years when someone thought he was a citizen, found out he wasn't, and then we were able to figure out we could do registry. Thank goodness. There's U visa. There's T visa. There's DACA. There's lots of other options, and you know, this is something you should make your exhaustive list, and it's just the judge wants to know what your form of relief is, which they are. Okay, so a good way to think about it is there's the master calendar, and there's the merits. There's the two types of hearing, and that's the way I describe it to client, but you know, things have also changed. There's been lots of resets of hearings, and also, there's been the scheduling order, which I think I've only saw them about, is that like the last two years or so? I didn't remember seeing them before, but it's sort of a way for the judges to be able to conduct business, get a feel for what's going on with the case without having to actually have a hearing. I mean, so much time is wasted waiting for a date for everybody to show up just to do a status inquiry, figure out what's going on, when a lotta these things can be done through scheduling orders, and scheduling orders have come in all different shapes and sizes, but they're generally saying, "What are you gonna plead to? What's gonna happen? What are we talking about?" And then you plead, or you state whatever you're gonna do, and then they'll come back and say, "Okay, well this is the date you have to turn in all your applications. This is the date you have to do your biometrics, and this is the date you have to do whatever," and so then, they just schedule you for a merits, and then you don't have to go to a master calendar, but anyway, preparing for a master calendar. You review your client's options and rights and obligations in the proceedings. You confirm their address. Confirm that address. Do that. It's like I'll always be getting ready for court. I'm like, "Wait, what's their address? Is that up to date with court?" Then you want to contact the assistant chief council. I mean, I usually was calling them the TA, but ACC, ahead of time, and every city or court, region, has their own way finding out those emails and the way to communicate. There could be a duty email, which with some cities, they actually give out all the emails and have a lot more clarity as to who's on duty based on the judge and the date and things like that. So you really can depend locale to locale. Now, remember, if you're going in person to have the proper dress. You know, business casual's great, or even step it up a little bit. Some judges can be very, very particular if you don't tuck in your shirt, or if you're chewing gum. I mean, some of 'em can just have very big pet peeves. You wanna be cognizant of your children, of their making a lot of noise or distracting, and also, you might wanna have somebody find out if you don't even have to bring the children at all, and also make sure that you're not being disrespectful with your phone or anything, and let's also make a note about this: you want to double check whether or not you can attend via Webex, telephone, or in person, and very recently, they have come out with, I think, the general memo. This is very recent. It's somewhere along the lines that if you, the hearing says, let's say, Webex, then if you want to switch it to not Webex, then you have to file a motion within a couple of week. I believe it's either 10 days or 15 days, but normally, the manual's 15 days, but let's just double check that right before. Things are always changing. To switch it to something else. Now, some judges have certain preferences, and so this is where you come into knowing that court, knowing whether that judge is always like a Webex judge, or that court specifically is a Webex court. So more fun things to start to memorize. NTA preparation before the master calendar. Review the NTA with the client. Explain what it means. Determine, see what's true, what's accurate, if there's any mistakes, typos, anything that's super-important, relevant. Think about language that they were given notice to. Think about address, and see if maybe you can get them dismissed out of court for being in deficient NTA, but make sure you know who has the burden and if the service was proper. Now, okay, this is important to remember: before the hearing, remember the asylum clock when you're applying for asylum, if you're ever going to change the venue or apply for a continuance, that can stop the clock if it is done by the respondent, if the cause of delay is caused by the respondent. This has also become an issue for people who are detained, and the judge tells them that they have to submit an I-589 without a master, but we also almost simultaneously are running a bond hearing, and then we find out that they've submitted the I-589. We get the note on bond, and depending on how it's coded with the change of venue, if there is a change of venue, whether or not the clock stops. This is a case, I'm starting to see a trend where clerk's staff detained to being released situations are not following the rules, or if they are, they are playing with the rules a little bit and stopping the clock when it really shouldn't be stopped, and we've been calling courts and finding out the clerks don't understand, or the people we talk to on the phone don't understand what's going on with the asylum clock, so the other thing is, and there was lots of litigation on the asylum clock, so I feel like there might be some more in the future, so I could talk a lot about this asylum clock, but what I would suggest is that you look online to find the list of the codes that judges can put in the system as to which ones cause delays, which ones don't, so that you know which actions can cause delays and be cognizant of that so that you don't slow down or stop the clock because clients really, really are looking forward to the work authorization, which they need in most cases to be able to afford their attorney, and if you find that the clock was stopped in error, you can write a letter and communicate with the clerk of that court, explaining why, and that's why you need to know the codes and see if they, I've been able to get them to fix it, recently received an email that said no, we were at fault. They weren't gonna fix it, but there's ways to speed it up. You could do a motion to advance, or even if there was pause doing a change of venue, and then you have a master, then you keep the case going, and from that master, the clock would resume. So anyway, prehearing motions, change of venue, continue, terminate, suppress, these are all determinations before a hearing. You can consolidate, terminate. You could change venue. You really want to become one with the manual. The manual has some sample. Well, it tells you what needs to be included, and so most of my templates, we have what we need, but I always like to go back to the menu and just double check because we're usually running off of prior samples of templates we have, but you know, there could be that one or two situations where it got approved, but another court notices that mistake, and then they don't approve it. Now, doing the master calendar hearing, be prepared to enter a plea in the case admitting and denying and containing the denied charge, but also note who has the burden. Now, there's different types of master calendar hearings. What do you mean, there's different types? Well, sort of is. I mean, there's these preliminary hearings. So there's a status hearing. Now, some places are calling them status hearings, and it's sort of like, "Okay, did the I-130 get approved? Did the I-360 get approved? What's going on with this case?" When we're just waiting for something to happen, I'll generally just submit a motion to continue, if I'm not worried about the asylum clock or just letting the judge know what's going on so we don't have to go to the master calendar if we could resolve by paper. Now, a bond hearing is not technically a master calendar hearing, and when a person's detained, some judges, what they'll do, you'd have to file a motion for a bond hearing, and what I've noticed is that in the detained judges, if the individual's already scheduled for a master, and you file the emotion for a bond hearing, what they'll do is they will usually schedule the bond hearing for the same day at the same time, approximately, and then the judge, depending on their preference, will hold one before the other. The one I did a couple weeks ago, we did the bond first and realized that the client was issued a bond and would be able to get out if he paid that amount, and then we did the master, and in that case, because the client hired me after he had already had one master on his own, we had to submit the I-589, and this is one of those examples that I was mentioning that could cause delay because in most cases, when people are being released from detention, there is a change of venue from one court to the next, and whether or not the client causes that delay and how it's coded can affect their clock. Then there's also just a regular master calendar here. Now, things to consider, and let me go over the master calendar hearing one more time 'cause I mentioned it, but I just wanna say what you would generally do in that hearing. So basically, a regular master calendar hearing, you would confirm what language that you're gonna proceed in, that you are the attorney of record, and you have to have an E28, and then the judge after, they'll say, "We are here on the matter of 2-1-2-3-4-5-6-7-8-9-10," whatever, "in the name of," and we'll say the name of the individual, and they'll confirm the language. "Is this the language that you speak the best?" And there'll be an interpreter generally, and then they will confirm the address, and then they'll confirm, "Do you want this person to be representing you today?" So there's always things they have to double check and do, and then we get into the allegations in charge and confirm the address, and then they'll say, "Okay, well, what's the form of relief designation of a country?" And then after that, the judge will give you several dates. It's usually a date to do the biometrics, a date to submit the applications, and a date for the final merits, and then usually, everybody checks their calendars, and then if everything's good, then you move forward. So filings with the immigration court. Oh, when did they make us do that? The portal, I mean, it's really great. I really like this portal. So you should register with the portal, and then you also need to find out whether your case is gonna be electronic, what we call ECAS, or if it's gonna be the ERAP, I think is what we call it if it's paper. There is a process to switch from paper to electronic. I don't think you can go the other way, but they are trying to make things as electronic and paperless, and that'll be wonderful for them if they can phase out all those paper cases. Less files to be carried around, and less scanning, and less wasted time. So even if the ECAS is something, we realize even if it is an electronic filing, they don't file at the last minute because it could be rejected for some crazy reason. If paper, you could put tabs, but if electronic, you're basically just uploading some digital documents. Paginate everything as you would, and make sure it's still things are indexed. Now, with the EOIR, you're going to be uploading it into the portal. DHS also has a way to do service, the Eservice.ICE.gov, so ensure that you have the E-service for DHS if your file is paper, not needed for electronic. There were some glitches when that first came out, so just double check your jurisdiction, how they are taking that, but I think that's pretty much good now. Now, preparing prehearing briefs. Now, what I've noticed is that, okay, I think people have different opinions, but my opinion is that they're good. Why are they important? I think it's because you spoon feed the facts, the eligibility, and the case law at the time to the judge and the trial attorney, or the ACC, and you're making it easy for them to understand, and I don't wanna make it too long, right. There is a limit, and I think that's smart 'cause you people are reading less, and people's attention span is not able to stay as long, but you want to grab them. You want to make sure that you're convincing, so I have a template that's basically like, "This is the facts, and this is why they're eligible," and going down element by element, and that they have nowhere else to go. They can't relocate. They met all the eligibility, and boom, here you go. So we're basically making it easier for them to make that determination, to do their oral argument or their decision as well. Now, I think you should outline this, give the case law. Now, one thing I'm gonna say is that there's a lotta cases I have tried in the last month, yeah, where I wrote briefs two years ago, and the case laws changed in the last two years, in fact, got pretty much all better. So then I try to update my briefs. I'm also gonna mention something that I noticed: a lot of judges don't seem to consider the brief as an exhibit. Now, that bothered me because I wasn't sure whether or not they were actually acknowledging it in any way, so what was happening also is that before, I had submitted the brief in conjunction with some other country conditions, and so the judges generally, what they were doing is they would say we accept pages blah blah blah blah, which had the country conditions, but we were not considering blah blah blah, the brief, the exhibit, so what I would suggest is if you can find out that judge's preference in advance, which maybe you can't because maybe the case gets moved around, and it's hard, is that I probably would make the brief its own submission, and don't jumble it with other country conditions and evidence, so just in case, to be clear, that if that brief is not admitted into evidence, then you also can still, well, basically, you can segregate that out from other stuff you do want to submit, so you know, the motion to supplement supporting documents, blah blah blah, that'd be accepted, but if it was the motion to support a brief in support of applications, then some judges are not accepting that. Now, the other thing that's really good for the asylum, and there was a brief moment, some judges still do it, where they want you to put the particular social group in writing. For asylum case I won about a month, a month and a half ago, that having clarity about what that PSG was was very important. The judge was asking at the very ends of the hearing, "What's your PSG, again? What's your PSG?" And as I said it, she wanted clarity, and I realized that, you know, in all the preparation that one or two words of my PSG was not exactly clear, so I'm just saying imagine just be as concise and clear, and review your case law as much as possible. Anyway, long story short, we were able to get it approved, but it's just that couple moments, it did fozzle me a little bit, but make sure that you have your PSG clear for asylum. Could make or break your case, but I like briefs. They take time. They take time. I think overall, they're valuable, but it's probably better to be concise and give good case law. Also, before an individual hearing, an HOM, a hearing on the merits, confirm the case is still scheduled to proceed. If there's always been changes, make sure if it's person, Webex, or telephonic. Meet with the client. See what's going on in the world. Confirm the client's address. Give a roadmap of the case, the client, including how the court will proceed in order of testimony and witnesses. I'm feeling that this really is helpful because what happened is that, you know, the more uncertain things are, the more anxiety, so the more you can explain, and I'm gonna ask you questions, and the trial attorney's gonna ask you questions, and then I'm gonna redirect you. I'm feeling that that really helps them understand what to expect and to have less surprises, and then during the breaks in between, I like to check in with them and let them know what we're seeing and how things are, you know, and what could happen next, so practice the testimony because you want to make sure that they're familiar with the procedure and they know why that we ask different things. Review the evidence application with the client closely. A lotta times, the judge will ask, "Did you prepare this application? Did you review this? Was it reviewed with you in your language? Is this your signature?" Those are usually the questions they like to ask. Now, another note is if there's changes in the application, which there generally are because there's just, so much time has passed in between these applications. Another thing: I had five hearings in the span of a week and a half. There was four within one week, and then there's this other lingering one, and there was always just one thing that I sorta forgot just 'cause it'd been a little while since I had so much court, and one of 'em was I'd forgotten to go back over the application. I was so busy worried about the testimony and all these other things, so I was having to make those changes on the fly and try not to upset the judge because I didn't have it all ready. So you really wanna make a checklist of all the things you need to do so that you have it ready, and the more you do this, the better you get at it, but there's always something you might forget, like even the biometrics, you know. If you haven't done them or they're not on file, that could delay everything too. Actually, that did delay one of my cases, but it wasn't my fault. The trial attorney took too long to run them, and so we had to schedule another hearing just to get them approved. Now, make a list of exhibits or evidence that has already been submitted. Make sure you know what, so this is my little cheat sheet because what happens is the judge'll be, when they're getting started, they'll be like, "I have exhibit one is the NTA. Exhibit two is the blah blah blah," and then they'll just rattle it off really fast. If you don't have that already pre-figured out what all has been submitted, then you're scribbling, and it's really hard to do and keep up, but what I have my staff do is write out everything that's been submitted, so then all I just have to do is put a number on the NTA, one, you know, application, two, whatever it may be, so I can just have that for my notes. That's been nice. Contact the assistant chief counsel to narrow issues. You can score a prosecutorial discretion whether or not their, well, just sorta get where their head is at, whether or not they'll be willing to stipulate to anything. I had a case from earlier this year where I was able to communicate with the trial attorney, assistant chief counsel, same person, and basically, it was beautiful because they conceded all of the elements of asylum, and so I kid you not, we went into the hearing, and the judge, it was really funny, though. He was really smart about this. He basically listed off every minute article of all the evidence I did as its own exhibit. So he sped read, you know, to be spreaded, 50 exhibits, which really, his exhibit was just an article, and really, what he was doing was just proving that it had been established, the evidence. The case had been established, and then he improved it. So the trial attorney has to restipulate to the elements, that the judge listed off 50 exhibits, minutely mentioning every single article, and then there wasn't even testimony. It literally was approved in 10 minutes. That was the fastest asylum I've ever had approved in my life. Yeah, it was. So you wanna make sure that you do the biometrics and that you'd met the time restrictions that the judge gave you, have a timeline of events. That way, you can look at it closely and remember. Also, what happened was having so many cases back to back, my dates were starting to get jumbled even though I really knew their case really well, but if you ask me at this moment, I've sort of already forgotten it. It's only been about a month and a half because there was just so much in such a short period of time. Make sure you prepare the witness list. Submit that. If there's more than just the respondents on the stand, be cognizant of who you really do wanna have on the stand. If you don't wanna have children and also if you wanna have some experts, if the experts can't be available or judges generally don't wanna have too many people, that's really your prerogative, and you're trying to establish the record, but a lotta times, they would allow a report in lieu of the testimony, so you just have to see what works best. Now, before the hearing, the client needs to make sure they know the road map of what to expect and that they remember their story, and what do I mean by remember their story? This is the deal: a lotta times, they're traumatized. A lotta times, this case has been pending a decade, four years, five years. Can you remember every single thing that happened to you, especially if it was traumatic? No, so they have to go back and, unfortunately, look back at their application, what they submitted, and then it starts to come back to them, and they start to remember all these painful memories. You also wanna start thinking like, "What did we forget to put in the packet?" And that's the issue when you have to keep re-looking at it and preparing as if you're gonna have a hearing every two years because you do the best you can at that moment, but then you have to keep working at it. Then maybe you had some other people in the firm working on the case at some point, and you have to revisit it, so you want to make sure what the client's primary language, what language did they want to do the hearing in? Maybe you said Spanish 10 years ago, but now, they speak English, and they're okay with it. You also want to know maybe Spanish is their first language, but maybe they're able to speak English well enough to defend themselves, and they'd prefer to go in English. They'll save time, reduce translation, and build more rapport and connection with the client and the judge. Discuss the scenarios of how the court can proceed so that you don't have to have those sidebar conversations and explain it. I mean, you had all those years to prepare, so make sure that you have said, you know, it could lead into all these different scenarios, positive, the negative, if an appeal will be wanted, and that there could be a continuance. I mean, basically, I've seen all different things. I've had a judge tell me that they wanted me to file a brief for my closing arguments. I've also seen continuances, so I'll go with that in just a couple more slides, but before that, you can also, the hearing, you can think of other motions to consider, like there's motions for safeguards under matter of the M-A-N, MAN. There's also the permanent video testimony, permanent telephonic testimony accepted online. Untimely filings, I've had to do that a couple times due to different things the clients gave me, and there's other motions, so it's powerful to know what motions you have accessible to you, and sometimes, there's been motions where I don't even know what to call the motion because I haven't done it that much, so I have to think about it. So there's probably a motion or a way to describe that situation. Now, during the hearing, you're gonna review the court decorum. You wanna make sure that you in person, Webex, phone, you wanna have some opening comments and closing statements, but some judges don't want that, but be prepared. Be thoughtful. Be in the know which ones you're going to use. I would say in my experience, I'm generally just using closing statements. Yeah, summarizing thing. It's almost like an oral brief, in a way. That's the way I normally do it, just like I would do for asylum interview. I'll take notes. You could have your system with your color-coding. What I'll do is I'll have all my questions and answers printed out, like 1.5 or 2 space, not double-sided printing so that I can just easily find it, might probably staple it and all, write my notes in a color ink, and then I'll have a certain color ink situation where what my answers are, whether I check it off if that question/answer did happen, and I'll make a note if I think something was suspicious, or I need to go back and clarify, and then when there's cross, and then I'll make a note in another color so that I can go back and remember for it to redirect those questions. So I think it is good to have a few highlighters, a few different colors of ink. I feel like I'm getting all nerdy like in debate. I was in debate in high school, but these things really are helpful, and definitely having the questions already printed out as well. So have those questions ready for the witnesses and reviewed it, and don't forget to prep every witness, not just the main one, and you could review the affidavits. Use that and double check that everything is consistent. Be professional. Say hi. Greet them. Be cordial. You know, if you are requesting voluntary departure, make sure that you can prove that you meet eleg requirements. Make your record, as they say, regardless of how it's going. If you feel like you're gonna win and you don't try too hard, that's where it can be hard with these really brief hearings. You're like, "Read what? I need to preserve my record," but that's why I think one of my biggest secrets is, and it's not a secret. I'm sharing it with you, is that I communicate with the trial attorney in advance and find out what their posture is. You can tell a lot by how quickly they respond whether they reviewed the file, whether they're willing to stipulate. There were some times where all they would do is stipulate to the first four pages of the asylum application, which doesn't do much 'cause they still have to set the stage of the story, but it's nice, I guess. You need to make sure you know your objections. Some trial attorneys are more prone to objections. Some judges are as well, yeah, so know your responses to those. Be respectful. Correct misinterpretations for the record, and you know what, if you upset somebody, as long as you're being, what's the word, you're still respecting the court, but if you upset someone just because they misinterpret it, you're there to defend your client, and if there's a misunderstanding and you need to clarify something, then you need to stand up and do that, and you are litigating, and you really wanna remember that you need to meet all the elements of the form of relief that you're working on. So just some things to consider. There's been different versions of these things, so I'll just mention them in general. The American Immigration Lawyers Association has "Kurzban's Immigration Law Sourcebook" that comes out every two years. Joe Vail was a former judge but also my former professor at U of H Law. He passed away many years ago, unfortunately, but he did write a book about removal relief as also as well as about asylum, but I don't think those are the most updated, but you can take a look for those. "AILA Immigration Litigation Toolbox," I don't know what the final updated version of that is, but I do remember having a lotta templates from that, and that was very helpful. "Litigating Immigration Cases in Federal Court" by Robert Pauw, and AILA InfoNet. The American Immigration Council has a Legal Action Center, Practice Advisories, Immigration and Refugee Appellate Center, and also, there's lots of other resources, so do build your arsenal of options that you can have. I'd be remiss if I don't mention the Center for Gender and Refugee Studies, which is in California, and they have, this is really big on asylum, they have a website you can go to. This is called CGRS.UCHastings.edu, but there's a place where you can go, and it says, "Get help with an asylum case," and you can upload what you're working on, and they'll give you some help and templates, and they very much just ask for you to tell them how it worked and so they can use that data, and so it's like a location to pull information. It's great. I think a lotta people don't understand that they exist, and there's a lot of other resources, so you know, don't reinvent the wheel. Do check to see what's out there, and obviously, you're listening to this, so you are learning. You are wanting to find out what's out there. Okay, so after the individual hearing, now, what could've happened is that there was, so I usually go outside where there's no cameras and nobody watching, and I can just sorta be real with the client and just sorta debrief. It's good for me. It's good for them, and we sort of like, "Okay, what happens," or replay the key points, and honestly, I should make notes in that realtime because that's where I'm really fresh for if I need to do an appeal or make some type of an argument, so I go, and I do a debrief. Now, it could be that there's no result, and the judge is like, "I will submit my written results in the future." You're like, "Really? Okay, you're not gonna tell us." So we don't know when it's gonna come, but if it's a denial, and the client wants to appeal, then they have 30 days to file that appeal, so you have to explain the scenario's next steps. If there's a continuance for whatever reason. I've had continuances because the judge wanted me to write my closing arguments in a brief. I've had continuances because we ran outta time, and we couldn't finish the hearing in three hours. I've had continuances because it turned into a pretrial hearing. It was like a pretrial hearing, and we were just figuring out what we even had to talk about, but you wanna make notes you can remember, and especially if one of your attorneys goes, and then you go, and you wanna make sure that you know what the point is, especially like I said. You have different trial attorneys, different judges, different dates. Now, if you're denied, if the judge denies you on the spot, then you wanna know whether or not you're gonna appeal, and let, you wanna make sure the client knows that that deadline to pursue, what that new fee would be and the contract for that. Now, if they're approved, yay, wonderful, congratulations, but you know, just because you're approved, it doesn't mean you're handed the green card that day or whatever. It may be your asylum. Usually, you have to wait for the asylum or whatever the approval in the mail, or maybe it's in ECAS. Then you have to, and so let's say we were approved a green card when we go for our residency a couple weeks ago. Well, we still have to wait. We have to follow procedures to be able to get it from the USCS, so you still need to know what you have to do after you're approved, and for asylum, for example, some people, you have to wait a year before you can apply for legal perm residency, and also some people are concerned about their work authorization. Technically, when you have asylum approved, you don't have to apply for work authorization, but some people wanna do it anyway. Another thing that people really care about is if you get denied and you file an appeal, you can renew your work authorization if you had the work authorization based off of the former relief that you had while you were waiting in court, and that's really important to clients. Now, make sure to monitor your EOIR, Executive Office Immigration Review, portal, and take notes of what you learn so that you can improve for the next time. Wow, what a mouthful. I hope you learned a lot. It was great working with you here and going over things. You know, I had to refrain from telling lots of stories. There are lots of stories in my head, and I didn't go a lot into detained, but it's like this very similar framework that we mentioned a little bit about bonds and master and merits, and really, with detained, you're doing the case while your individual is detained, which causes its own set of complications. Now, so overall, we've covered many things. We talked about knowing your judge, the court, the circuit law, the commencement of proceedings, and the notice to appear, and that the notice to appear has to be properly filed with the court for it actually to have, court have jurisdiction. There's been some false alarms. You want to know the client admissible or removable per the government, and then you need to know who has the burden of proof, and the forms of relief, make sure you exhaust all those options, and there were some times where even this year, where prosecutorial discretion was allowed, and they were terminating cases right and left. It has slowed down, and it has been more of a case by case situation. Make sure that you know how to prepare for the master calendar hearing, what to expect, and the elements of that master calendar hearing, knowing about where and how to make filings with the court, and I didn't go over details, but their paper filing, there's certain ways to hole punch. They need to be tabbed, and they also need to be paginated. I did mention that, but even the specific courts have their own ways of doing things, and when you file in person, usually, you wanna take a couple of copies so that they take one. They keep it, and they stamp your copy so that you can make a copy of your stamped copy, and then you can share that when you send it to the trial attorney for their service copy, and if you don't give service, the proper service to them to the OPLA, then they can consider it, they can challenge that it wasn't properly filed. So you have lots of things to have to consider. You also wanna make sure you know how to prepare for the merits hearing, the elements of the merits hearing, and post-hearing consideration, what to expect and how to prepare. So I think I'll go back to what I said. We did talk about the basics of immigration court. I didn't want it to be too basic, but I think that if it was your first hearing, or if you'd had a few, then this hopefully was really helpful, and it's a good building block for more litigation work in the future. So thank you so much for watching. Again, my name's Ruby Powers with Powers Law Group. Feel free to stay in touch with me, and thank you so much for watching. Good luck with everything you do. This is tough work, but you know, the clients, really, they need our help, and if you find that you are good at this and enjoy it, or have good results, connect with a client, can help advocate for them, then continue to keep trying and practicing, having mentors, taking CLEs, learning, and improving. Everything I know is from talking to lots of people, watching lots of CLEs, having lots of hearings, and just constantly improving. So thanks again for watching. Again, my name is Ruby Powers, and I hope you have a wonderful day. Thank you.

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Ruby Powers
Founding Attorney
Powers Law Group

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