Resources on Removal Proceedings

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On Oct. 30, 2020, CLINIC submitted comments in response to a Notice of Proposed Rulemaking titled, "Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances," and that would allow practitioners to make limited appearances in immigration court. As detailed in the comment, CLINIC strongly supports EOIR clarifying that practitioners can make limited appearances because such appearances allow more noncitizens to have access to counsel, at least for parts of their cases.

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On Oct. 16, 2018, the Board of Immigration Appeals (BIA) issued a precedent decision holding that an immigration judge (IJ) has initial jurisdiction over an asylum application filed by a respondent previously determined to be an “unaccompanied alien child” who turns 18 before filing the asylum application, in Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018).

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This fact sheet provides a brief overview of how practitioners can navigate immigration court proceedings for unaccompanied child clients pursuing initial asylum jurisdiction with U.S. Citizenship and Immigration Services.

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On June 18, 2020, the U.S. Supreme Court issued a decision in Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020) holding that the Trump administration’s effort to end DACA had not complied with the requirements of the Administrative Procedures Act. As a result, the Supreme Court upheld a lower court ruling issuing an injunction against the DACA rescission and remanding the case for further proceedings.

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CLINIC has created a resource that asylum seekers can share with witnesses to assist them in drafting their declaration in support of the asylum application. The resource is in Spanish and is not intended to be legal advice.

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Since its inception in 2019, CLINIC’s Defending Vulnerable Populations, or DVP, Program has offered high quality skills training. With the current concerns about travel and sharing office space, DVP has adjusted and moved our trial skills classes online.

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Direct examination is generally the most important part of a respondent's immigration court removal proceedings. Direct examination provides the opportunity for the respondent to tell their story to the IJ, and it is critical to the success of the case that the representative skillfully and persuasively helps guide the respondent and other witnesses through their narrative to put the strongest case before the IJ and build the best record in the event of an appeal.

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This practice advisory offers guidance and tips that will help practitioners deliver concise and compelling opening statements and closing arguments in immigration court.

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On April 23, 2020, the U.S. Supreme Court issued Barton v. Barr, 590 U. S. ___ (2020), where it held that legal permanent residents (LPRs) in removal proceedings might be ineligible for cancellation of removal based on the applicability of the stop-time rule.

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Mental illness can impede a noncitizen’s ability to obtain due process protections and meaningfully present their case in immigration court, but practitioners have many tools available to them to provide effective representation to noncitizens living with mental illnesses. This practice advisory provides an overview of the legal protections available to mentally ill noncitizens facing removal proceedings under section 240 of the INA, as well as to those facing expedited removal, reinstatement and administrative removal proceedings. The practice advisory also addresses some of the practical challenges in working with noncitizens with mental illness.

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In a major victory for noncitizens, the U.S. Supreme Court held in a 7-2 decision that the federal circuit courts have jurisdiction to review mixed questions of law and fact. In Guerrero-Lasprilla v. Barr, the Court addressed whether federal courts of appeals have jurisdiction to determine whether the litigants exercised due diligence in seeking to reopen removal proceedings. The Supreme Court found that determining whether undisputed facts met this legal standard was a mixed question of fact and law, permitting judicial review. CLINIC’s practice pointer discusses the Supreme Court decision and provides analysis of other circumstances where courts of appeals may not have jurisdiction.

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The Board of Immigration Appeals issued a decision where it concluded that an asylum seeker’s willingness or reluctance to accept an offer for permanent residence does not negate a firm resettlement finding.

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CLINIC submitted comments on March 30, 2020, urging the Justice Department to withdraw its proposed fee increases for immigration court and Board of Immigration Appeals, or BIA, filings. CLINIC opposed procedural issues concerning the rulemaking, including the Justice Department’s refusal to extend the 30-day comment deadline in light of the COVID-19 pandemic. CLINIC also argued that the dramatic increases in fees — appeals to the BIA would rise from $110 to $975 — are unreasonable and will prevent people from receiving fair results in their cases.

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An immigration judge may issue an in absentia removal order if the Department of Homeland Security establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing.

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In Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), the attorney general held that two or more convictions for driving under the influence during the qualifying time period presumptively bar an applicant for non-lawful permanent resident cancellation of removal from proving good moral character under section § 101(f) of the Immigration and Nationality Act.

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The Board of Immigration Appeals, issued calls for amicus briefs in two cases where the Department of Homeland Security (DHS) appealed immigration judges’ decisions to terminate cases, where the Notices to Appear did not specify the admission status of the respondents.

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This resource is a template to help immigration services organizations draft a public comment in response to the administration’s proposed Executive Office for Immigration Review, or EOIR, fee schedule that dramatically increases fees associated with immigration court filings.

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This practice advisory is intended to provide guidance to immigration court practitioners on the evidentiary standards that apply in immigration court proceedings, as well as tips on how to make and respond to objections in order to protect clients’ due process rights.

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This practice pointer provides information about and tips for refreshing witness recollection in immigration court proceedings. It also includes an appendix with a one-page cheat sheet showing the steps for refreshing recollection.

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The notice outlines the administration’s plan to significantly increase fees associated with filings for appeals to BIA, applications for suspension of deportation or cancellation of removal, and motions to reopen or reconsider before the immigration courts or the BIA.

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On Jan. 22, 2020, the Board of Immigration Appeals issued a decision in Matter of Angel MAYEN-Vinalay, 27 I&N Dec. 755 (BIA 2020) concerning requests for continuances by applicants for “collateral relief” pending with United States Citizenship and Immigration Services who are also in removal proceedings. In this decision, the BIA held that a noncitizen’s prima facie eligibility for U nonimmigrant status, and whether that relief will materially affect the outcome of proceedings, are not dispositive, particularly where there are relevant secondary factors that weigh against a continuance.

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The U.S. Supreme Court held in Pereira v. Sessions that service of a defective Notice to Appear does not cut off eligibility for cancellation of removal. This practice advisory provides practitioners with strategies and considerations based on the holding and rationale in Pereira v. Sessions. CLINIC and the American Immigration Council drafted the original version of this practice advisory in 2018. CLINIC updated this practice advisory in December 2019.

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Practice advisory, co-authored with Boston College, provides information on the legal issues surrounding post-departure motions to reopen or reconsider and includes a chart of principal cases by circuit court.

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Practice advisory provides background on status dockets, describes the new policy, and provides tips for practitioners with clients whose cases are currently on a status docket or who would otherwise have pursued status docket placement but may now be found ineligible for status docket placement.

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This outline provides tips for preparing an asylum-seeker’s declaration.

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CLINIC submitted comments addressing a series of questions posed by the Executive Office for Immigration Review (immigration court) in response to the NWIRP v. Sessions litigation. CLINIC's comments focus on the need for expanding access to counsel and suggest that allowing limited appearances may help noncitizens who would otherwise have no counsel. CLINIC will continue to track this issue and submit further comments once the government issues a proposed rule.

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The U.S. government has issued in absentia removal orders to a large number of families primarily from El Salvador, Guatemala and Honduras. These families fled persecution and sought safety in the United States often proving they had a credible fear of returning to their home country.

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This practice pointer provides a summary and analysis of USCIS's June 28, 2018 policy memo which expands the situations in which USCIS will issue a Notice to Appear in connection with adjudicating a request for immigration benefits.

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This practice advisory provides practitioners guidance on Matter of L-A-B-R-, a decision issued on August 16, 2018. In L-A-B-R-, former Attorney General Jeff Session addressed the factors that an IJ must consider when a respondent requests a continuance in order “to await the resolution of a collateral matter.” This practice advisory suggests strategies practitioners may use to fight for continuances for their clients.

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On November 15, 2018, USCIS conducted its second stakeholder call addressing the incremental implementation of the June 28, 2018 USCIS Policy Memo on Notice to Appear Issuance (NTA PM).

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As the future of DACA recipients remains uncertain, practitioners who work with DACA recipients should explore permanent relief options for this vulnerable population. One such permanent relief option is non-LPR cancellation under INA § 240A(b), which provides a path to lawful permanent residency to certain non-citizens placed in removal proceedings.

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October 5, 2018

On June 28, 2018, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that would expand the types of cases where USCIS will issue a Notice to Appear (NTA) in the course of adjudicating an application, petition, or request for an immigration benefit.

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On Sept. 18, 2018, Attorney General (AG) Jefferson Sessions, in two cases he referred to himself, held that immigration judges (IJs) may dismiss or terminate removal proceedings only where the regulations expressly allow or if the charges of removability against a respondent have not been sustained. Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018).

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In late August, the Board of Immigration Appeals, or BIA, issued a precedential decision, Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), which interprets the scope of the recent Supreme Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). Bermudez-Cota limits the application of Pereira’s holding to the stop-time rule in cancellation of removal cases. Bermudez-Cota’s narrow interpretation of Pereira is certain to lead to further federal litigation.

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U.S. Citizenship and Immigration Service issued new policy guidance on June 28, 2018, outlining when to issue a Notice to Appear, or NTA, against a removable noncitizen. Overall, the guidance dramatically increases the situations that will trigger when an NTA is issued by USCIS, and will likely lead to more people being placed in removal proceedings.

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On August 16, 2018, Attorney General Jefferson Sessions issued Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018), a precedent decision about how immigration judges (IJs) should decide certain motions for a continuance “to await the resolution of a collateral matter.” The decision uses the term “collateral matter” to refer to filings with U.S.

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The Supreme Court issued a decision in Pereira v. Sessions, No. 17-459, --S. Ct. -- 2018 WL 3058276 (U.S. June 21, 2018) on June 21, 2018, which could make cancellation of removal available to many noncitizens who were previously foreclosed from this form of relief.

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This practice pointer provides practitioners guidance on the Attorney General’s Matter of Castro-Tum decision issued on May 17, 2018. Matter of Castro-Tum revokes immigration judges’ and the Board of Immigration Appeals’ (BIA) general authority to administratively close cases, or temporarily close cases without deciding them, with some exceptions.

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The Trump Administration’s September 5, 2017 DACA rescission has left DACA recipients in limbo and prompted many questions on what comes next for this vulnerable population. Practitioners representing DACA recipients must consider permanent relief options in each DACA client’s case and prepare for the possibility of removal proceedings. These practice advisories provide practitioners guidance on immigration law matters relevant to DACA recipients.

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Attorney General Jeff Sessions issued a decision in Matter of Castro-Tum on May 17, 2018, that revoked immigration judges’ and the Board of Immigration Appeals’ authority to temporarily close cases without deciding them.

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Attorney General Sessions requested briefing from amici in the case of Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018).  In response to this request, CLINIC and Matthew Hoppock filed this amicus brief on February 16, 2018.

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As more noncitizens are targeted for the initiation of removal proceedings under the Trump administration’s broadened enforcement priorities, immigration court dockets will likely become even more backlogged. Given these strains and the reality of human fallibility, there will continue to be instances in which practitioners observe inappropriate and problematic immigration judge conduct.

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U.S. Immigration Courts and Circuit Courts of Appeal for your reference.