EOIR Changes The Way The Immigration Court Cases Are Being Processed
07 April 2021Author: New York Immigration Lawyer Alena Shautsova
EOIR or Executive office of Immigration Review adopted a new policy for processing cases in Immigration court. It means that every person who is in Immigration court now (in other words persons who are in removal or deportation proceedings), or those who can be placed in such a removal or deportation proceedings, should make themselves familiar with this new policy in order to avoid mistakes and not to receive a default deportation order.
The new changes apply to non-detained cases only. They focus on replacing in-person Master hearings with written pleadings, written motions and stipulations and scheduling orders. You may be familiar with the term “Master hearing”. A Master hearing is a preliminary, short hearing that takes place in Immigration court that is often used by the practitioners to file applications for relief, respond to the allegations in the notices to appear and solve some preliminary issues in the case. On a day of a Master hearing, a judge is hearing dozens of cases. This requires the in-person presence of many people in the room, at times, hundreds of persons at a time. The EOIR now states that all these crowd-gathering can be avoided if a respondent’s attorney files her notice of appearance with the court at least 15 days in advance of a scheduled Master hearing.
When an attorney files his or her notice of appearance, the court then will vacate or cancel the Master hearing date. It means that the person-respondent will not have to come to court on that date. But at the same time, the court will also issue a hearing order: a document setting deadlines for submission of the written pleadings. The default deadline will be 30 days from the most recent hearing date, unless pleadings already took place or the judge specifies a different deadline.
After the court receives the pleadings, and if the person admits removability (that he/she does not have current legal status in the US or cannot terminate the proceedings), then the judge will issue a new scheduling order specifying the deadline for submission of the relief applications and supporting documents. This deadline will be 60 days from the date of the order sustaining the charge(s) of removability, unless otherwise specified by the immigration judge. In other words, a party will have only 60 days (by default) from the date of the order to present full relief applications.
After the respondent submits the applications for relief, the court will review them, and if the judge decides that the case is trial ready, the case will be scheduled to go for trial. Cases that are ready for trial will be placed in a trial queue and scheduled for a merits hearing within 90 days, subject to docket availability. Cases that are not yet ready for trial will be set for a short matter hearing or pre-trial conference, placed on a specialized docket, or issued a scheduling order, as appropriate. Amendments to applications and other supplemental filings must be submitted at least 30 days in advance of the merits hearing, unless otherwise specified by the immigration judge.
In order words, it seems that the new case flow model for the Immigration aims at processing the entire case within about 180 days not including possible court’s delays and docket availability.
Will it actually work? This is the main question. It may work if the Immigration courts will have enough staff to streamline review of the case and mailing out notices in a speedy manner. Also, it will work only if judges have sufficient room on their dockets to schedule cases fast. What can clear up the docket, is the stipulation form of relief: where both attorney for the respondent and the government agree on the issues in the case and relief. What also will free up dockets is the former practice of termination of cases and allowing USCIS to take over adjustment of status cases based on SIJ, and marriage related petitions. Another possible solutions, would be adoption of mediation and referees practices, that allow let’s say state and Federal courts to have less cases on their dockets because the cases are being resolved not at trial but with the help of the mediators and referees.
If you have more questions regarding immigration issues and removal, please call to book a consultation or appointment at 917-885-2261.
1This model does not apply to cases of detained respondents, respondents not placed in removal proceedings whose removability is already established (most of whom are also detained), and respondents proceeding pro se. Further, this model does not apply to cases that have been appropriately placed on a status docket—e.g., a case of an unaccompanied child with an asylum application pending before the Department of Homeland Security (“DHS”). See PM 19-13, Use of Status Dockets (Aug. 16, 2019), https://www.justice.gov/eoir/page/file/1196336/download. Additionally, this model does not apply to cases in which a protective order has been issued or that involve the handling of classified information. See 8 C.F.R. § 1003.46; EOIR Operating Procedures and Policy Memorandum (“OPPM”) 09-01, Classified Information in Immigration Court Proceedings (Feb. 5, 2009)