Once an applicant has been placed in removal proceedings, the case becomes procedurally more formal and the stakes for the applicant become much higher.
A foreign national can apply for asylum, withholding of removal (“withholding”), and relief under the Convention Against Torture (“CAT”) before an Immigration Judge (“IJ”) as a defense to removal proceedings if they have been placed in removal proceedings for some other reason, such as an ICE work raid or a criminal arrest. Also, an affirmative asylum applicant whose application is denied the Asylum Office can renew their application for asylum, withholding and CAT before the IJ. The asylum application is heard de novo before the IJ. Unlike the asylum interview, removal proceedings are adversarial, with an attorney from Immigration and Customs Enforcement (“ICE”) (most often) fighting against relief for the applicant.
In February 2008, the Executive Office of Immigration Review (the branch of the Department of Justice which overseas the Immigration Court) released its own practice manual on Immigration Court Proceedings. This valuable guide is available at http://www.justice.gov/eoir/office-chief-immigration-judge-0.
26.1 Master Calendar Hearing
As in criminal cases, there are two types of court dates in Immigration Court: one is called Master Calendar Hearing (“MCH”), and the other is the Individual Hearing (“IH”). The court date in the Notice to Appear (“NTA”) that the applicant first receives will be for an MCH date. On MCH dates, the IJ deals with administrative issues, including scheduling, filing applications, pleadings to the immigration charges, and other issues that arise. There are generally 20–30 cases scheduled during a two-hour period for MCHs. Most IJs take cases where the respondents are represented by counsel first, and some IJs hear pro bono cases before cases with private attorneys.
Most attorneys in immigration court practice there every day, so the IJ and ICE attorney will speak in lingo which may be unfamiliar. It is important to let the IJ know if you are working on the case pro bono and if you are not generally an immigration practitioner. If the IJ or ICE attorney says anything that you don’t understand, ask them to clarify. Even if they seem irritated at having to slow the proceedings down, you are responsible for doing anything the IJ or ICE attorney directs you to do, and complying with any deadlines they impose, so it’s imperative that you understand what they tell you.
26.1.1 Arriving in Court
Before or on the date of the first MCH at which the attorney is appearing with their client, they must submit a completed Notice of Appearance (Form EOIR-28, available at http://www.justice.gov/sites/default/files/pages/attachments/2015/07/24/eoir28.pdf), preferably on green paper, two hole punched at the top, to both the IJ and the ICE attorney. Even if the attorney has represented the applicant before the Asylum Office, they must submit an EOIR-28 to become the attorney of record for the removal proceedings (and must use the court’s “eRegistry” to obtain an EOIR ID number: see http://www.justice.gov/eoir/internet-immigration-info).
When the attorney arrives in the courtroom, they should wait for a break between cases and then go check in with the court clerk seated to the side of the IJ. The attorney should hand the clerk the completed EOIR-28 and let the clerk know which number on the calendar their case is. The attorney should then sit and wait for the case to be called. Most IJs call the case by the last three digits of the respondent’s A-Number or by the attorney’s name.
26.1.2 The Beginning of the Hearing
When your case is called, the IJ is likely to talk with you off the record to determine your intentions and to straighten out any procedural problems. At that time, you can advise the IJ that you are a pro bono attorney. On the record, the IJ will state the nature of the proceedings and ask your client if they understand what is happening.
26.1.3 Determining Representation by Counsel
The client will first be asked if the attorney is their representative. If an individual appears without counsel, the IJ will usually ask the individual if they would like a continuance in order to seek legal counsel. There generally are not interpreters present for the MCH, and normally the only conversation the IJ will have directly with the respondent is to confirm that he wants the attorney present to represent them. Although the respondent plays a minor role at MCHs, they must be present for all of them (unless the IJ explicitly waives their presence) or they will be ordered removed in absentia.
26.1.4 Adjourning the Case If You Are Newly Retained
It is generally possible to adjourn the case at least once for attorney preparation if the you have been newly retained. It is important to explain to the client, however, that any adjournment requested by the asylum applicant or their attorney will stop the clock from running to accrue the 180 days required to apply for employment authorization. (See Section #31). Generally, MCH dates are adjourned for relatively short period of time, such as three to six weeks.
26.1.5 Establishing Receipt of the NTA
On the MCH date when you go forward with the case, the attorney or the client will be asked if the client has received a copy of the NTA. If not, they should say so and ask for a copy. The IJ will often grant continuances so that the attorney can go over the NTA with the client to determine whether the charges are correct—and if there is any question (even remotely) about their accuracy, then a continuance should be sought.
26.1.6 Admitting or Denying the Charges and Conceding Removability
One of the purposes of the MCH is for the respondent (this is how your client will be referred to in immigration court proceedings), through counsel if represented, to plead to the charges in the NTA—that is, to admit or deny that they are accurate. These charges generally look like this:
- You are not a citizen or national of the United States;
- You are a native of EGYPT and a citizen of EGYPT;
- You were admitted to the United States at New York, NY on December 13, 2004 as a nonimmigrant B-2 with authorization to remain in the United States for a temporary period not to exceed March 12, 2005;
- You remained in the United States beyond March 12, 2005 without authorization from the Immigration and Naturalization Service;
On the basis of the foregoing, it is charged that you are subject to removal from the United States pursuant to the following provision(s) of law:
Section 237(a)(1)(B) of the Immigration and nationality Act (Act), as amended, in that after admission as a nonimmigrant under Section 101(a)(15) of the Act, you have remained in the United States for a time longer than permitted, in violation of this Act or any other law of the United States.
Prior to the court date, the attorney should review the charges with the client. If all of the information is correct, the attorney should admit the charges. If any of the facts are incorrect (such as the date of entry into the United States), the attorney should deny the charge and state the correct fact. In most asylum cases, such as in the example above, the charge of removability will simply be that the respondent overstayed their visa, or entered without a lawful visa. If this is true, this charge should be admitted. If the respondent is charged with a criminal ground of removability, the issues are more complicated, and the attorney should thoroughly research the charge prior to the MCH date. Criminal grounds of removability and their consequences are beyond the scope of this manual.
Assuming that the charges are accurate and you admit the charges, you will also be conceding removability on behalf of your client. In order to be eligible to apply for asylum, the respondent, through the attorney, must admit removability under one of the grounds.
26.1.7 Designating a Country of Removal
Next, the IJ will ask if the respondent wishes to designate a country of removal. In asylum cases, the attorney should state that the respondent does not wish to do so, since the idea behind an asylum/withholding/CAT application is that under no circumstances does the respondent ever wish to return to their country. The IJ will then identify the client’s country of origin as the country of removal.
If the ICE attorney or IJ designates a country other than the one from which your client is seeking asylum, you should register your opposition on the record and request leave to designate the country from which asylum is sought.
26.1.8 Stating the Client’s Desire to Apply for Asylum
The attorney or the respondent will then state for the record that the respondent wishes to apply for asylum. Alternate grounds of relief, such as withholding, CAT and/or voluntary departure (“VD”) should also be stated. Assuming that the respondent, through counsel, admits removability, the IJ will ask what forms of relief the respondent is seeking. The attorney will then respond, “asylum, withholding of removal, and relief under the Convention against Torture.”
Before changes in the law in 1996, respondents would also routinely ask for VD in the alternative. A grant of VD allows the respondent to depart the United States on his own rather than being deported if he is unsuccessful with his other applications. If the applicant has the ability to travel to a country other than their country of origin if they are unsuccessful with their asylum application, the attorney should request VD. If the respondent has no intention of leaving the United States unless they are forcibly put on an airplane, they probably should not request VD because there are serious penalties for failing to abide by the order. (See Section #8 on voluntary departure.)
26.1.9 Setting a Date for Submissions of the Written Asylum Application
If your client has not yet filed an asylum application, the IJ will usually set a date for submission of the completed written asylum application. This time period is generally 30 to 45 days, but if you let the IJ know that you are working on the case pro bono and have a busy caseload, the IJ will probably give approximately 45 days. It is generally best to make sure that you have adequate time to fully prepare the asylum application.
If your client was referred from the Asylum Office, however, the IJ should have a copy of the I-589 application from the Asylum Office already in the Court file. If your client is renewing their request for asylum, withholding, and CAT protection, the IJ will likely indicate that any amendments to the I-589 asylum application should be tendered to the court at the same time as other pre-trail submissions prior to an IH.
If the attorney wishes to file a new I-589, they must do so in open court on an MCH date. The reason for this is so that the IJ can put on the record either that the IJ has read the respondent the warning of the consequences of filing a frivolous asylum application or that the attorney assumes responsibility for doing so. (See Section #3.5 on Frivolous Asylum Applications.) It is only the I-589 itself which needs to be filed in open court; any other supplementary documents, such as a revised declaration, corroborating documents, or country conditions information can be submitted to the ICE district counsel’s office and immigration court clerk’s office prior to the IH by a date specified by the IJ.
If the applicant prepared his first I-589 pro se, or if the I-589 was prepared by another attorney or representative, it is generally best to prepare a new I-589 for the Court. The old I-589 is still part of the record, however, so it is important that the answers in both versions be consistent or that any inconsistencies be fully explained. If the attorney representing the applicant in court prepared the I-589 for the Asylum Office, there generally would not be a reason to prepare a new one for court.
26.1.10 Background Checks
Before an immigration judge may grant an application for asylum, withholding of removal or CAT, the ICE trial attorney must confirm that the applicant’s biometrics (fingerprints) have passed security clearances. If an applicant has never had his biometrics captured, or if it has been more than 15 months since they were last taken, the applicant must request a biometrics appointment from USCIS. To so initiate clearances, send USCIS (1) a copy of the first three pages of the I-589 that was filed in court, (2) a copy of your EOIR-28 and (3) the instruction sheet found here. Please note that you should file the biometrics request at least 3-4 months before your IH in order to allow for sufficient processing time. If biometrics have not cleared by time an IH is scheduled, the IJ is likely to allow you to present your witnesses and other evidence at the IH and will then adjourn the IH for a final decision after biometrics have cleared. If your case has been adjourned for this very reason, and if biometrics have still not cleared by the time of your rescheduled hearing, you may file a motion to adjourn. Neither the applicant nor their counsel will be informed if biometrics have cleared; only the ICE attorney will have access to that information. It is a good idea to call the ICE attorney a few days prior to your final IH to inquiry whether your client’s biometrics are cleared.
26.1.11 Requesting an Interpreter
The IJ will also ask the attorney what the respondent’s best language is. Unlike at the asylum interview, in immigration court, a professional interpreter is supplied by the Court for the IH. Even if a respondent wants to supply their own interpreter, they cannot. Although the interpreters used by the immigration courts are professionals, they are not always very good. Additionally, especially for uncommon languages, the interpreter often comes from the same country as the respondent, and many LGBTQ/H asylum-seekers feel uncomfortable testifying about such personal issues in front of someone from their country of origin. The attorney should assure the client that interpreters are bound by rules of confidentiality and would lose their jobs if they discussed asylum cases outside of court. Nevertheless, as discussed above (See Section #26.6.2), if the applicant can testify in English, it is often a better strategy to do so. The attorney can ask the IJ at the MCH whether the IJ will allow the interpreter to be there as back up on the IH date in case the applicant doesn’t understand a question, or whether the IJ’s policy is to require the entire hearing to be conducted either in English or in the applicant’s native language.
26.1.12 Setting the Date and Amount of Time for the Merits Hearing
The date of the hearing on the merits of the claim (the IH) will generally be several (4–18) months in the future, or longer. The IJ usually asks how much time will be necessary to complete the IH. You should ask for at least three or four hours, and do not hesitate to ask for more time if you really think you need it. You will find that three is the bare minimum for presenting a thorough case. Unfortunately, the IJs are rather hesitant to schedule more than four hours for a hearing. Once the hearing date is set, the MCH is adjourned.
At the last MCH, the IJ will also give the attorney a “call-up date” for when any other document submissions are due. At a minimum, all documents for non-detained cases are due no less than 15 days before the IH (see the Immigration Court Practice Manual for details). Some IJs require documents specific to the applicant’s case (as opposed to background, country condition materials) to be submitted 30 or 60 days before the IH.
If your client is detained, you will receive an expedited hearing date. Mostly, detained individuals have their IH date set only one or two months in advance.
26.2 Before the Individual Hearing
26.2.1 Submitting Witness Lists and Documents
Corroborating evidence is essential to winning asylum cases. Corroboration can come in the form of oral testimony or written documentation. For cases which were filed after passage of the Real ID Act. (See Section #20 on corroborating evidence.)
Since immigration court hearings are administrative hearings, formal rules of evidence, particularly the hearsay rule, do not apply. An IJ may choose to give hearsay evidence less weight than other evidence, but the fact that it is hearsay does not make it inadmissible. Thus, for example, a letter from an applicant’s former lover confirming that the two were once harassed by the police would probably be admissible.
26.2.2 Witness List
Before the call-up date, the attorney must submit a list of witnesses they intend to call. The attorney should put the witness’s full name and reason for testifying, for example, “Jose Doe, respondent’s life partner.” If it’s unclear whether or not a particular witness will be able to testify, it is better to list the person on the witness list. There’s no rule that every potential witness must testify.
26.2.3 Material Witnesses
Material witnesses, such as friends, family members, or others who can corroborate some or all of your client’s story are very important. However, it is unusual to have such witnesses who were present for the persecution, either because the client knows no one in the area who can be a useful witness or because those who could testify are fearful of doing so.
Remember, however, that one element that you must prove in the case is that the applicant really is LGBTQ-identified and/or HIV-positive. Thus, if the applicant has a same-sex partner in the United States, the partner should testify about their relationship. Even if the applicant doesn’t have a partner to testify, if they are active with an LGBTQ/H organization, it can be helpful to have someone from the organization testify about the applicant’s activities.
Only individuals with lawful immigration status can be witnesses. An IJ would not knowingly allow an undocumented immigrant to testify, and merely entering the immigration court would put the undocumented immigrant at grave risk of being placed in removal proceedings.
26.2.4 Expert Witnesses – Country Conditions
If the respondent wishes to use an expert witness at the IH, the attorney should submit the expert’s name on the witness list. Additionally, you should include the expert’s CV and an affidavit of what the expert intends to testify about. Failing to submit these documents in advance of the hearing will likely lead to the ICE attorney arguing against allowing the expert to testify because the attorney could not adequately prepare cross-examination.
Expert witnesses are often critical to winning asylum cases and attorneys should make a strong effort to obtain such witnesses. Expert witnesses, however, should only be called if their testimony adds something new to the case and is not merely a summary of the documentary evidence and affidavits submitted previously.
Often times, there is very little information about human rights abuses of LGBTQ/H individuals in the applicant’s country. In these situations, it is crucial to find an expert witness. Expert witnesses can also address specific issues which may arise in the case, such as why it would be unreasonable to expect the applicant to relocate internally within the country of origin. Likewise, for some countries with positive media attention about gains made in LGBTQ rights, having an expert explain that, for example, a well-attended gay pride march does not translate into protection from homophobic violence by the police, can be vital to the case.
The content of a witness’s testimony should be carefully scrutinized. Testimony should focus on the specific elements of the respondent’s claim. It is not enough that a witness offer general testimony. The witness must be able to specifically corroborate elements of the respondent’s own testimony.
Expert witnesses are most useful when they are truly experts, such as academics or professionals with substantial scholarly credentials, and when they are not blatantly partisan. Sometimes, witnesses offered are people who have traveled extensively in your client’s country or are active in political or advocacy organizations with a pronounced point of view about that particular country. Such witnesses’ credentials as “experts” are often problematic. In the event that a witness’s “expertise” is called into question at the hearing, you should be prepared to argue on behalf of their credentials or, if unsuccessful, to go forward effectively if the witness is not accepted. Even if the ICE attorney does not object to a particular witness, the IJ may refuse to allow such testimony on their own motion. Additionally, sometimes, even if allowed to testify, a witness’s political bias is so strong and so obvious that their testimony carries little weight with the IJ.
26.2.5 Expert Witness – Psychological or Medical
If your client is suffering from post-traumatic stress disorder or other psychological problems that may affect the credibility of their testimony, you should consider having a psychologist testify at the hearing, or at a minimum, submit an affidavit from the psychologist describing the client’s symptoms in detail. This is particularly important if your client has memory problems or a flat, unemotional affect. Similarly, it may be helpful to have a doctor or other qualified expert testify if your client has been tortured or beaten.
Likewise, if your client has filed for asylum beyond the one-year filing deadline and is claiming an extraordinary circumstances exception based on mental health problems, it is expected that the mental health expert be available to testify in court on the respondent’s behalf. Also, if the respondent’s one-year filing deadline is based on physical health problems, such as HIV-related illness and/or side effects from medication, having their treating physician testify would be vital to the case. If the doctor has knowledge about the applicant’s country and can testify as to unavailability of similar HIV treatment options there, they should also be prepared to testify about this.
Mental health or medical experts can also be crucial to proving that your client is a member of a cognizable particular social group (“PSG”). If your client does not have any other way to corroborate the fact that they are LGBTQ-identified, having a therapist who the applicant sees regularly testify that he believes that the applicant really is LGBTQ-identified based on their therapy sessions can be very helpful. Such testimony can be particularly important if the applicant has a challenging issue in their case, such as a prior opposite-sex marriage, which may cause the IJ to question the veracity of the applicant’s sexual orientation or gender identity.
It is also important to know who your IJ is an advance of the IH and how receptive they are to LGBTQ/H claims. If you know that the IJ is skeptical about such cases, or doesn’t really believe that sexual orientation, gender identity, and/or HIV status should comprise a PSG, the expert witness can be helpful to educate the IJ.
26.2.6 Telephonic Testimony
It is possible to have witnesses (especially expert witnesses) testify telephonically. The attorney must submit a motion before the call-up date requesting that the IJ allow telephonic testimony. The motion can be short but should explain why telephonic testimony is necessary (e.g., if the expert resides in Florida for a Pennsylvania case, and the respondent is indigent).
26.2.7 Submitting Corroborating Documents
As discussed above, corroborating the applicant’s claim can often mean the difference between winning and losing a case. (See Section #20 for information regarding the types of corroborating evidence which you should submit.) If your client does not have corroborating documents which the IJ would expect them to have (such as police records, medical records, letters from friends or family, etc.) you must thoroughly prepare your client to explain why these documents are not available and what efforts they made to get them.
26.2.8 Supporting Documentation Format – Official Records
The Immigration Regulations 1 set forth onerous requirements for authenticating official records from other countries. On the one hand, this is logical. The IJ does not have the expertise to determine whether or not a foreign government record is authentic, particularly when the record is in a foreign language and may come from a very different culture. The problem, however, is that the regulations place a burden on the asylum applicant who has fled their country of origin to have their documents authenticated by the very government from which they have fled. In practice, this means contacting a family member or friend in the country of origin who is willing to go through several steps of authentication with local government officials leading up to an authentication stamp by the U.S. embassy.
This burden is particularly onerous on LGBTQ/H asylum applicants, many of whom have been disowned by family members because of their LGBTQ/H status. If the applicant is still in contact with friends in their country of origin who are LGBTQ/H, it may be particularly dangerous for them to try get documents authenticated which concern a known LGBTQ/H person, as doing so may “out” the friend to the government authorities.
Different IJs apply the regulations differently. Some IJs will allow unauthenticated documents into evidence, and others will not. In any event, it is important for the applicant to try to follow the authentication steps and document the efforts he made to do so if authentication is not possible. 2 Also, always make 100% certain with your client that all documents they are submitting are genuine. In many countries it is easy to buy “official” documents, and your client may not understand how seriously DHS will take the submission of fraudulent documents. Sometimes the ICE attorney will send an official document to forensics to be tested for authenticity. This can include sending the document to the U.S. consulate in the applicant’s home country and making inquiries (e.g., as to whether the police officer who signed the arrest record actually works in the station that issued the form). If your client submits any foreign documents, it is imperative that you make them understand that they must be 100% sure that the documents are real, and they should check with their friend or family member who obtained them to be sure.
26.2.9 Submitting a Legal Brief
It is generally helpful to submit a legal brief along with supporting documents prior to the hearing date. The brief should not be overly long (probably no longer than 20 pages), and it should focus on the particular facts of the case as well as any challenging issues, or particular legal issues in the case. You should not spend an inordinate amount of time researching and writing the general standard for asylum, and can probably obtain a sample brief with boilerplate language for the introductory section from the organization that referred the case to you.
You should summarize the facts of your client’s past mistreatment, summarize the country conditions, and then lay out why your client’s facts meet the standard for asylum, withholding and/or CAT. Use bold headings to make it as easy as possible for the reader to find the relevant sections, and clearly cite to the materials you’ve submitted. If your client has missed the one-year filing deadline, lay out a clear argument for which exception they are claiming and how their facts fit that exception.
There is no requirement to submit a brief, and the brief does not become part of the record, but the brief provides one document the IJ and ICE attorney can read to see how strong the case is and what arguments you are making to address any difficult issues. The act of writing the brief will also be very helpful to the attorney in becoming fully familiar with all submitted materials and with crafting arguments to address legal issues in the case.
26.2.10 Contacting the ICE Attorney Prior to the Merits Hearing
It is always advisable to attempt to contact the ICE attorney a day or two in advance of the IH to explore any pre-hearing agreements that might be reached, particularly if you have a strong or compelling case. This conversation may be helpful in determining what the ICE attorney sees as the weakness(es) in your case. Note that the ICE attorney who appeared at the MCH will probably not be the attorney for the IH. Cases scheduled for IHs are assigned to ICE attorneys ten days in advance. If the case is adjourned after an IH has commenced, the ICE attorney should not change.
Unlike other types of litigation, however, it is generally very difficult to have meaningful conversations with ICE counsel before the IH date. Since ICE attorneys are generally not assigned to the case until ten days before the IH, if there are issues to address before then, it may be difficult to find an attorney who will return a phone call or review the file. If there is a serious concern which must be addressed, it’s a good idea to put it in writing and send a copy to the immigration court, after leaving a couple of unanswered phone messages.
Sometimes it’s possible to obtain stipulations from ICE attorneys that clients are eligible for asylum or other relief (although the IJs may not believe themselves to be bound by agreements between ICE and the respondent). Such situations are unlikely, because the ICE attorney will be principally concerned with the issue of credibility and probably will not stipulate to anything until they have observed the client’s testimony and conducted some cross-examination. However, in such cases, it may be useful to ask the ICE attorney at the close of the IH if they will stipulate to eligibility and not oppose asylum or, failing that, if they will waive appeal if the respondent wins, thus ending the case immediately.
In some cases where the applicant has a very strong underlying claim, but has missed the one-year filing deadline, the ICE attorney may agree not to oppose a grant of withholding of removal, though they would oppose a grant of asylum. In cases with one-year filing deadline issues, you should thoroughly discuss, prior to the IH date, the pros and cons of accepting an unopposed grant of withholding of removal as opposed to fighting a contested application for asylum. (See Section #31 on the benefits of asylum and Section #32 on the benefits of withholding status.)
26.2.11 Watching a Removal Proceeding
If you have never before attended an asylum hearing or a removal proceeding, it is an excellent idea to watch another case well in advance of your own hearing. If at all possible, you should try to watch a case that’s before the same IJ who will be hearing your case so that you get a feel for the IJ’s style. Removal proceedings are generally open to the public, though a respondent can request that asylum hearings can be closed. If you want to watch an asylum hearing, the organization which referred your case to you, or other local non-profits, can probably match you with an upcoming hearing to observe.
26.2.12 Adjourning an Individual Hearing
It is possible, but generally not encouraged, to adjourn an IH date for good cause. The request for the adjournment must be made in writing and should be made as soon as possible after the need for the adjournment arises. Often you won’t receive a response to the adjournment request until a day or two before the scheduled hearing, so it’s safest to continue to prepare as if the adjournment will not be granted (although this may negate the purpose of the adjournment request).
26.2.13 Preparing the Applicant
Unlike an asylum interview, removal proceedings are adversarial proceedings. Therefore, preparing the applicant fully for the hearing is crucial to the outcome of the case. You should try to speak with practitioners in this area to learn as much as possible about the IJ’s style before the hearing. Some IJs are very controlling and will take over much of the questioning themselves, others are very passive, and still others may be “yellers” or abusive to litigants. It’s best to know what to expect and prepare accordingly. The website http://trac.syr.edu/immigration/ contains a (somewhat dated) listing of statistics of asylum grant rates for IJs around the country. Remember this table is for all types of asylum cases, so there is no way to know whether a particular IJ has a strong positive or negative record on LGBTQ/H cases.
If you do not litigate frequently, it’s generally a good idea to write out direct examination questions before the hearing. One method for doing this is to begin with the final version of the declaration and go through it, breaking it down into open-ended questions. Although strict evidentiary rules do not apply, the ICE attorney will object if you ask questions which are too leading in nature. It is also important to remember that if the applicant is applying for CAT and/or VD in addition to asylum and withholding, you must ask questions relating to those forms of relief. For CAT, this means eliciting testimony about the applicant’s future fear of torture; for VD, this means eliciting testimony that the client was present in the United States for at least a year before the NTA was issued, that they are a person of good moral character, have never failed to depart pursuant to a prior VD grant, have never been convicted of an aggravated felony, possess travel documents, and actually intend to depart.
The styles of both IJs and ICE attorneys vary greatly. When IJs hear cases with unrepresented respondents, they ask the bulk of the questions, so IJs often become impatient with slow, methodical questioning by the respondent’s attorney, and the IJ may jump in and ask questions to speed the process along. The client should be fully prepared to listen carefully to questions by the IJ and to respond in the event that the IJ takes over the questioning from you. It is also important that you do not become flustered if this happens. The IJ will probably ask a few questions, then hand the questioning back over to you. If the IJ already covered something that you had intended to cover, don’t just return to your written the questions about the same incident, or the IJ will become more impatient with you.
Some ICE attorneys view their role as carefully analyzing cases and meting out justice on a case by case basis, others see their role as trying to remove aliens, and others still seem like government bureaucrats who do not care much about the outcomes of their cases. It is best to prepare the applicant for the harshest cross imaginable. You should look for any weakness or discrepancy in the case and work with the client to come up with truthful explanations that damage the case as little as possible.
Often after preparing with the applicant using a list of direct questions, the applicant will ask for a copy of the questions so that they can “study” the questions and be sure of the answers. You should never give the client the questions to “study.” It is imperative at the hearing that the client think about the question and respond to the question by remembering the experience that they went through. If they memorize the “correct” answers, their testimony will sound rote and unconvincing. The client should reread their declaration, I-589, and supporting documents. As with the asylum interview, it is often helpful to make a timeline (See Section #26.4) which covers significant incidents in the applicant’s life. The applicant should “study” the dates, because discrepancies between the oral testimony and written testimony can lead to an adverse credibility finding.
Additionally, you should be aware that it is very common for witnesses to vary their testimony on the stand from what they have told you in your interviews. They often fail to testify about certain things, sometimes key elements, and/or may suddenly state new facts that you have never heard before. In addition, all witnesses, particularly respondents, are generally very nervous and thus likely to forget certain things. For example, clients often forget dates or even years in which events happened. Though this is quite normal human behavior, often both ICE attorneys and IJs tend to think that if a client cannot remember in which year an important event occurred, then the account is not credible. As a result, you must try to convince the client in advance that it is very important to remember such details and testify to them to the best of their recollection. You should you run through a mock hearing with your client and practice some cross-examination questions with them. After building trust with your client, it is important that you mentally prepare them to face seemingly hostile questioning from the ICE attorney and IJ.
26.3 The Day of the Hearing
As with the asylum interview, the applicant should dress comfortably, but respectfully for the hearing. They should not feel compelled to wear a suit, but they should not wear jeans and a t-shirt either. Some immigration courts (notably New York’s) can have long lines with extensive security to enter the building. In New York, the attorney and client should meet outside the building together, and have the written hearing notice handy to show the security guards. The attorney should always arrange to meet the client at least 30 minutes before the scheduled hearing in case there is a problem getting into the building. Most federal buildings have cafes if it becomes necessary to kill time. If the respondent is not in Court within a few minutes after the scheduled hearing time, they can be ordered removed in absentia. Asylum hearings are confidential, and IHs are generally closed to the public. It is, however, possible for multiple members of the law firm team to attend the IH.
26.3.1 Overbooking Individual Hearings
Because of the very full calendars which most IJs carry, sometimes they book more than one IH for the same time slot, thinking that one of the cases may not be ready to proceed. If this happens, the litigants won’t know until the day of the hearing, and they may be forced to wait for an hour or more to see the IJ, and/or the IJ may just adjourn the case to another day. There’s really nothing to do about this but be flexible.
26.4 The Individual Hearing
Merits hearings in asylum cases are formal, adversarial, evidentiary hearings on the record. ICE attorneys act as “prosecutors,” attempting to disprove the applicant’s eligibility for asylum. Witnesses are sworn, and both sides have the opportunity for direct and cross-examination. IJs are usually also very involved in questioning your client.
Removal hearings are excellent “training courses” for new litigators, since they are formal, contested trials, but at the same time there is minimal discovery or motion practice, and rules of evidence and procedure are relatively relaxed.
26.4.1 Rules of Procedure
Merits hearings in immigration court are comparable to administrative law proceedings in other federal or state agencies. However, immigration proceedings are not governed by the Administrative Procedures Act (APA), and tend to be more informal than those governed by APA standards. 3
26.4.2 Rules of Evidence
Rules of evidence in asylum hearings are minimal and very casually observed. Formal presentation of evidence is generally not required. IJs will simply admit documents or physical evidence, sometimes permitting argument but rarely requiring formal authentication (but see section #25.1.2).
Generally, this very flexible view of the rules of evidence works to the advantage of your client. Asylum-seekers are rarely able to offer evidence beyond their own testimony that would stand up to rigorous rules of evidence. For example, it is understood that producing a third-party declarant is simply out of the question, particularly in the case of an asylum-seeker who fled for their life. Thus, many kinds of evidence that would present difficult issues in other courts may be easily admissible in immigration court.
Respondents and other witnesses may testify freely about what other people told them. Letters from friends or family members may often be introduced with little difficulty (though not always), as long as they are accompanied by translations. Documentary evidence, such as newspaper articles and general treatises are routinely admitted without objection. Thus, attorneys should not shy away from attempting to admit any evidence as long as an argument can be made that it is probative of the client’s claim in some fashion. Needless to say, however, the IJ will give all of the evidence the weight that they think it deserves. Particularly marginal evidence may be admitted by the IJ but viewed with a great deal of skepticism.
As discussed above (see Section #25.2.8) there are specific regulations which require authentication of official documents from other countries. Every effort should be made to comply with these regulations or to explain why authentication was not possible. Some IJs will allow documents which have not been authenticated according to the regulations into evidence, while other IJs will not.
26.4.3 Before Testimony Begins – Procedural Formalities
Before the start of the IH, the IJ will generally engage in a substantial amount of off-the-record conversation, reviewing the file, identifying exhibits, and clarifying issues, such as the status of previously filed motions, or the number of witnesses the respondent will call. Make sure that everything you’ve submitted gets properly into the record as evidence.
26.4.4 Before Testimony Begins – Correcting and Updating Information
At the beginning of the IH on the record, the respondent’s attorney is generally given a chance to update or correct any information on the asylum application or other materials previously submitted. It is important to make certain that names, addresses, dates, A-Numbers, etc. are up-to-date and correct. In addition, if you know there will be substantial or even minor inconsistencies between testimony and earlier submissions, such as statements given to a DHS Officer or statements made during a credible fear interview, an attempt should be made at this point to correct inaccuracies and to state clearly the reasons for the inaccuracies.
Often times, asylum-seekers have submitted their own pro se applications before seeking legal assistance, and these applications may have substantial errors. For example, many clients have unwittingly filed boilerplate applications prepared by unethical “notarios” or others and signed applications whose contents they know nothing about. Additionally, some clients initially file applications containing asylum claims that they believe are more acceptable, such as political opinion claims, but which subsequently turn out to be fabrications. If this is the case, you should offer correct information and a strong explanation for the inconsistencies as early as possible – before the hearing by means of a detailed affidavit from the client if possible or at the outset of the hearing and affirmatively through the client’s own testimony.
26.4.5 Identifying and Admitting Exhibits
Next, the IJ will go through the process of admitting exhibits. Generally, the NTA and related materials have already been admitted as initial exhibits, and the asylum application along with all attached materials will be identified and admitted as a group exhibit. The IJ will simply identify all offered exhibits and ask if there are any objections. There are generally no objections to this, but if the ICE attorney does object to a particular piece of evidence, the IJ will usually permit brief arguments and rule quickly. Occasionally, specific items such as expert witness affidavits or CVs, or pieces of direct evidence such as letters or documents, will draw objections that the IJ is not comfortable ruling on at that point. In these circumstances, the IJ may instead reserve his ruling until the attorney presents the evidence during the course of the case.
26.4.6 Before Testimony Begins – Conferencing the Case
Sometimes rather than launch directly into the hearing, the IJ will conference the case with the respondent’s attorney and the ICE attorney. Other times the IJ will ask the two attorneys to discuss the case before going on the record to see if any agreements can be reached.
On rare occasion, with particularly compelling cases, the IJ will express their predisposition to grant the case before the IH begins and will conference with the ICE attorney and respondent’s attorney to see if there are any issues that the ICE attorney would need addressed in order to agree to a grant.
Sometimes, in cases with one year filing deadline issues, the IJ or ICE attorney will offer to grant withholding of removal if the applicant agrees to withdraw their application for asylum as though they are plea bargaining. For applicants with one-year issues, the attorney should seriously discuss the pros and cons of winning withholding of removal as opposed to asylum before the IH date because of this possibility. If the applicant has no colorable exception to the one-year filing deadline, there may not be a downside to accepting such an offer. If, however, the applicant does have a chance of proving a one-year exception and succeeding with asylum, they should not withdraw their asylum application and lose the possibility of appealing a denial. (See Section #32 on consequences of winning withholding.)
26.4.7 Opening Statements
Some IJs permit opening statements, while others do not. Some will not permit them if the attorney has filed a pre-hearing memorandum. Either a pre-hearing memorandum or an opening statement is a very good idea, as both are vehicles to briefly summarize the client’s case and, in cases where it is not clear that the case falls within the boundaries of refugee law, to cite supporting case law and distinguish problematic case law. The IJ will review the file and read concise memoranda a day or so before the hearing, and in most cases, will be prepared to issue their oral decision immediately after the close of the hearing. A good memorandum and opening statement, when permitted, can be critical.
26.4.8 Examination of Witnesses
Examination of witnesses is largely the same as in most other courts. The respondent’s attorney offers her case first, conducting direct examination, followed by cross-examination by the ICE attorney, and then by redirect examination where necessary. If your expert is located in another part of the country or the world and the cost of producing the expert in person would be prohibitive, most IJs allow telephonic testimony by expert witnesses; however, you will have to submit a motion prior to the call-up date requesting leave to present testimony telephonically.
Generally, the respondent will testify first. If there are other witnesses (especially expert witnesses, or medical or mental health professionals) with pressing schedules, most IJs will allow them to testify first instead of your client. Any witnesses (other than the respondent) who have not yet testified must wait outside the court room. Thus, if a client intends to have their partner testify, they should be aware that their partner cannot be in the court room for moral support while the applicant is testifying. Witnesses should be instructed to bring something to read and to have a full meal before coming to court because they may have to wait a couple of hours before they testify.
18.104.22.168 Direct Examination
Attorneys should be well-prepared for direct examination, and the client should be well rehearsed in how to respond. The client should be advised to answer questions succinctly without engaging in long narratives, and should state clearly when they do not understand a question.
Since IHs are brief—typically scheduled for two-, three-, or four-hour time slots—direct examination should be prepared with an eye on the clock. Preliminary information should be gotten out as quickly as possible. Duplicative information can and should be eliminated, where there is no particular reason to bring it out in testimony. Remember, however, never to take for granted that the IJ accepts that your client actually is LGBTQ/H. Even though background testimony about childhood taunts or early relationships may not be particularly relevant to a later police detention, unless the IJ indicates before the start of the hearing that they are willing to accept that your client is LGBTQ/H, it is important to make a record documenting the client’s sexual orientation, gender identity, and/or HIV status.
Leading questions are generally objected to, and the objections are generally sustained. It is important that you explain to your client in advance that you are required to ask open-ended questions in awkward format (such as, “did there come a time when you had a problem because of your sexual orientation?”). You should prepare your client for this format of questions as well as for the possibility that on cross-examination they may be limited to “yes” or “no” answers.
After direct examination, the ICE attorney will conduct cross-examination, generally focusing on credibility. Again, though there are essentially no rules of procedure or evidence, you should raise objections if the questioning is inappropriate. While it is appropriate for your client to testify about relationships and affectional attachments to prove their sexual orientation, for example, it would not be appropriate for an attorney to cross-examine the respondent regarding specific sexual experiences. Likewise, if the ICE attorney asks questions about how your client contracted HIV, you should object unless the answer is directly relevant to the case.
ICE attorneys will often cross-examine the respondent about the possibility of internal relocation within the country of origin. The respondent should be prepared to explain why this is not possible. Also, if the applicant experienced harm from non-government actors, the ICE attorney will almost certainly ask the applicant to explain why they did not seek government protection or, if they did seek government protection, how they know the inadequate response was related to her LGBTQ/H status.
If the country conditions materials you submitted and/or the U.S. State Department report contains information about some improvement in LGBTQ/H rights in the applicant’s country of origin, or in certain areas of this country, the respondent should be prepared to address why that slight improvement does not make their fear less objectively reasonable.
Generally, the ICE attorney’s cross-examination is relatively minimal. Redirect is permissible and strongly recommended where cross-examination has raised damaging issues.
22.214.171.124 Examination by the Immigration Judge
All the IJs will usually conduct their own extensive examination, generally after both direct and cross-examination are completed by the attorneys. Some IJs, however, will interrupt direct and cross-examination repeatedly and extensively, which can disrupt the flow of the attorney’s questions and rattle the client. The IJ’s examination can present serious problems, since very often the questions are such that, if they were asked by an attorney in any other court proceeding, they would be subject to strong objections. However, since the IJ is doing the questioning, and typically believes that they have a duty to actively question the respondent, there may be little you can do about it. Where questions are inappropriate or offensive, you should attempt to state your objections on the record and make note of the issue for purposes of an appeal, if necessary. However, the IJ is nonetheless likely to insist that the question is answered anyway, and you must weigh the value of such aggressive tactics against the probability that it might affect the IJ’s decision negatively.
Sometimes the IJ’s questions are not inappropriate or offensive, but may simply be confusing. Questions previously asked may elicit inconsistent, incoherent, or non-responsive answers. One remedy may be to respectfully suggest to the IJ a different manner of wording the question or to simply suggest to the IJ that the client is confused or may not have understood the translation of the question. Another remedy may be to request an opportunity to conduct a brief additional redirect after the IJ has completed their questioning, in order to clarify any confusion or explain any inconsistencies or issues affecting the IJ’s sense of the witness’s credibility.
26.4.9 Making a Record
IJs have very full calendars and receive significant pressure from above to keep their calendars moving. IJs will allot different time slots for IH depending on the complexity of the case, but they generally allow around two to four hours for the entire hearing. Thus, there is often a tension for the respondent’s attorney between keeping the IJ from becoming impatient and creating a complete record in the event that the case needs to be appealed. Even if the IJ has given indications that they will grant the case, it’s important to make a record because ICE may reserve its right to appeal.
Immigration proceedings are recorded on tape recorders. It is therefore very important that you assist in making the record. If your client nods, instruct them to answer out loud. If your client points to a body part where they were beaten, make sure they explain out loud what they are pointing at.
The Court will supply an interpreter if your client has indicated that they are not fluent in English. The Court employs interpreters for common languages such as Spanish and Chinese languages. For other languages, the court uses part-time interpreters of varying quality, hired through a contract with the Berlitz School (be sure to inform the IJ of specific dialects).
For the IH, you may wish to have your own interpreter or someone familiar with your client’s language present to signal errors in translation that can be corrected during the proceedings.
26.4.11 ICE’s Case
Once the respondent has finished putting on his case, ICE can call rebuttal witnesses. In practice this almost never happens in asylum cases.
26.4.12 Closing Statements
Most IJs will allow both sides to make a closing statement before reaching a decision. It’s a good idea to outline the closing statement before the hearing date, but it is also important to be flexible and address any negative facts that come out during testimony directly. By the time the attorneys are making closing arguments, the IJ’s mind is probably pretty much made up, but if there is one issue which is a sticking point for the IJ, you may be able to make an argument to overcome the problem.
26.5 The Decision of the Immigration Judge
The IJ will generally issue an oral decision on the same day of the hearing. Sometimes, particularly if there is a complex or novel issue of law, the IJ will send a written decision in the mail or schedule an MCH date for the respondent to return for the decision, but these situations are rare.
Most often the IJ will read the (long) decision, summarizing the facts, reading boilerplate language about the legal standards for the relief sought, and finally analyzing the facts in light of the law. If the applicant has applied for multiple forms of relief, such as asylum, withholding and CAT, the IJ will ordinarily analyze the facts in light of each standard and determine whether or not the applicant qualifies. It is often impossible to tell until the very end of the oral decision what relief, if any, the applicant has won. If the attorney has to appeal the decision, they will not have a written copy of the decision at the time that they must submit a detailed Notice of Appeal. It is therefore a good idea to take detailed notes during the reading of the decision, paying careful attention to the bases for the decision, and any areas where the IJ misstates, misinterprets, or overlooks evidence or matters of law. If the respondent loses, the Notice to Appeal that is filed must state specific grounds justifying the appeal, not just a general statement of boilerplate language. When the IJ issues an oral decision, whether favorable or unfavorable, the respondent receives only a minute order form filled out and signed by the IJ.
26.5.1 Reserving/Waiving Appeal Rights
Once the IJ has read their decision, they will ask both the respondent’s attorney and the ICE attorney whether they reserve or waive their right to appeal. If the respondent loses, they should always reserve their right to appeal. Even if they’re uncertain whether they actually will appeal, reserving the right does not mean that they must actually appeal; waiving the right to appeal, however, means just that and the respondent can’t change their mind later. If the respondent wins asylum, there is no need for his attorney to reserve the right to appeal. If ICE also waives the right to appeal, then the decision is final. If ICE reserves its right to appeal, the respondent will not know for 30 days whether or not the decision is final. If the IJ denies asylum but grants withholding, you may decide to appeal. You should be aware, however, that if you appeal the denial of one form of relief, the ICE attorney may appeal the relief that was granted.
The IJ will give both attorneys a pre-printed order form which will either order removal, or state the form of relief granted, as well as whether or not appeal rights were reserved. This form may be the client’s only proof of immigration status until they receive a new I-94 or employment authorization document in the future.
This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.