Immigration Court Scheduling Orders Could Ramp Up Removal Orders
Starting in November, CLINIC affiliates and other practitioners began receiving Scheduling Orders from the Assistant Chief Immigration Judge, or ACIJ, with control over their local immigration court. These scheduling orders, which have been issued in at least 24 different states across the country, require practitioners to submit applications for relief by the expedited date set in the order or waive the right to apply for all relief. As a result, failure to comply with these scheduling orders would lead to a removal order in most cases. In many instances, the largely boilerplate orders state, often incorrectly, that the practitioner has missed a previously scheduled filing date or has had their court date postponed due to COVID-19. The scheduling orders have given practitioners as few as four weeks to submit applications in cases where they thought they would have months, or years, to do so. With ongoing delays with the U.S. Postal Service, and most practitioners not regularly going to their offices because of the pandemic, many practitioners only have a couple of weeks to respond to these notices.
CLINIC is collecting information about these scheduling orders and has issued a template response for practitioners to fight back. Practitioners can access our template Motion to Terminate, Rescind the Scheduling Order, or Extend the Filing Deadline after completing a short survey. We are continuing to gather information about these orders and want to know the outcome of using the template.
Additionally, on Nov. 30, 2020, Executive Office for Immigration Review, or EOIR, Director James McHenry issued a memo titled, Enhanced Case Flow Processing in Removal Proceedings, PPM 21-05. This memo, which is being rolled out slowly across the country, will dramatically alter immigration court practice by eliminating master calendar hearings in most cases where a respondent is represented by an attorney or fully accredited representative. Instead, the immigration court will require the parties to submit written pleadings and applications before the Department of Homeland Security, or DHS, establishes that the noncitizen is removable. This new Enhanced Case Flow Processing applies to respondents who are represented, and not to pro se or detained respondents.
CLINIC is very concerned that in cases where the respondent intends to contest removability or hold DHS to its burden of proving removability, forcing respondents to simultaneously file applications for relief will be prejudicial to the respondents’ cases. Additionally, it may be more difficult to narrow issues with the immigration judge or get a sense of the judge’s concerns about a case before the individual hearing if the practitioner’s first interaction with the judge on the case is at the individual hearing.
The combination of these two changes to established immigration court procedure appears to be designed to significantly speed up removal proceedings by implementing new processes before the change in administration, resulting in more removal orders and less due process for noncitizens.