Notice Issues and Service of Notice to Appear in Court April 23, 2015

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1 Notice Issues and Service of Notice to Appear in Court April 23, 2015 This outline provides guidance to attorneys regarding issues related to proper service and notice of the issuance of the Notice to Appear for unaccompanied minors. 1. Should we advise that sponsors not come to court to avoid proper service? a. Yes. While it seems inevitable that deficient service will be corrected at some point, this would buy the respondent some time and hold DHS to the regulations. See below re Service on Minors. 2. Make arguments that sponsors need not been there during hearing. a. Apart from service, a concern with having sponsors in court is the possibility of DHS initiating removal proceedings against undocumented sponsors. b. The March 24, 2015 O Leary Memo offers us support by stating that IJs may not demand custodian presence with the promise that proceedings will not be initiated against them. c. It is never appropriate to order that the parent or custodian appear in court while indicating that they need not fear apprehension if they do so. Brian O Leary: Docketing Practices Related to Unaccompanied Children Cases and Adults With Children Released on Alternatives to Detention Cases In Light of the New Priorities, March 24, d. It seems like it would be in the best interest of undocumented custodians to refrain from entering a government building if they do not have to. e. It would also be beneficial to make the argument that as attorneys, especially pro bono attorneys, we are acting in the best interest of the child, and thus the child s sponsor need not be present. 3. Argue that service cannot be perfected in courtroom and seek termination if initial service was improper. a. where the DHS is aware of indicia of incompetency at the time it serves the notice to appear, the case should be handled as a case of mental incompetency, and the respondent should be served in accordance with 8 C.F.R (c)(2)(i) and (ii). Matter of E-S-I, 26 I&N Dec. 136, 144 (BIA 2013). b. Where the indicia of a respondent s incompetency are manifest, the DHS should serve the notice to appear on three individuals: (1) a person with whom the respondent resides, who, when the respondent is not detained, will be a responsible party in the household, if available; (2) whenever applicable or possible, a relative, guardian, or person similarly close to the respondent; and (3) in most cases, the respondent. Matter of E-S-I, 26 I&N Dec. 136, 145 (BIA 2013). c. If the DHS did not properly serve the respondent where indicia of incompetency were either manifest or arose during a master calendar hearing that was held shortly after service of the notice to appear, the Immigration Judge should grant a

2 continuance to give the DHS time to effect proper service. Matter of E-S-I, 26 I&N Dec. 136, 145 (BIA 2013). d. Argue termination instead of continuance by citing the Immigration Court Manual, [r]emoval proceedings begin when the Department of Homeland Security files a Notice to Appear (Form I-862) with the Immigration Court after it is served on the alien. See 8 C.F.R , e. Accordingly, it would be inappropriate for a hearing to proceed to allow proper service, especially in court. Rather the case should be terminated and proceedings should only begin a fresh when a new NTA is properly served. f. However, the wisest/easiest way around this would be to not have sponsors in the court room. 4. General Information on Service on Minors a. The AIC, Penn State, ABA June 2014 Practice Advisory, Notices to Appear: Legal Challenges and Strategies recommends seeking termination based on improper service but notes that ICE will eventually file and properly serve a new NTA on a minor. American Immigration Council, Penn State The Dickinson School of Law, American Bar Association Commission on Immigration, Notices to Appear: Legal Challenges and Strategies, Practice Advisory, P. 23 (June 2014), 14.pdf. i. Excerpt from In re Rosa Mejia-Andino, 23 I&N Dec. 533, (BIA 2002): 1. The regulations provide specific instructions for service of a notice to appear in the case of a minor under 14 years of age. Such service shall be made upon the person with whom... the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend. 8 C.F.R a(c)(2)(ii) (2002); see also 8 C.F.R (2002) 2. We find that in this case, personal service of the Notice to Appear on the person identified in the Form I-213 as the respondent s uncle does not meet the regulatory requirement that service be made on the person with whom the respondent resides and, whenever possible, on the near relative. The Form I-213 states that the respondent was traveling to Detroit to reside with her family, lists the names of her parents, and gives a Detroit, Michigan, address. The question here is whether the regulation requires service on the respondent s parents. We find that it does. In Matter of Amaya, 21 I&N Dec. 583 (BIA 1996), we recognized that the purpose of requiring service of a notice to appear on the person with whom a minor respondent resides was to direct service of the charging document upon the person or persons who are

3 most likely to be responsible for ensuring that an alien appears before the Immigration Court at the scheduled time. Id. at 585. ii. The regulations governing service of a notice to appear on a minor respondent do not explicitly require service on the parent or parents in all circumstances. If a minor respondent s parents are not present in this country, service on an uncle or other near relative accompanying the child may suffice. However, when it appears that the minor child will be residing with her parents in this country, as in this case, the regulation requires service on the parents, whenever possible, in addition to service that may be made on an accompanying adult or more distant relative.

4 Brief Outline of June 2014 Practice Advisory Notices to Appear: Challenges and Strategies by AIC, PennState, ABA with Supplementary Information This is a rough outline of the June 2014 practice advisory on NTAs cited above with additional quotes and citations to relevant government memoranda. 1. Notice to Appear (NTA) Basics a. An NTA is a charging document that is issued by specific government entities to individuals believed to be inadmissible or removable. These individuals are not subject to summary removal such as reinstatement of removal or expedited removal. b. Issuing an NTA is not the same as filing it. An NTA is issued to an individual and separately filed with EOIR or immigration court to initiate removal proceedings. c. Once an individual s NTA is filed with EOIR or immigration court jurisdiction vests with the immigration court and removal proceedings begin. 2. Issuing an NTA a. An NTA may be issued by three arms of DHS: ICE, USCIS, and CBP. i. ICE: ICE officers issue NTAs with considerable discretion but their highest priorities are: 1. [A]liens engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security; 2. [A]liens apprehended at the border or ports of entry while attempting to unlawfully enter the United States; 3. [A]liens convicted of an offense for which an element was active participation in a criminal street gang, as defined in 18 U.S.C. 52 l(a), or aliens not younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity of the gang; 4. [A]liens convicted of an offense classified as a felony in the convicting jurisdiction, other than a state or local offense for which an essential element was the alien's immigration status; and 5. [A]liens convicted of an "aggravated felony," as that term is defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction. Memorandum, Thomas S. Winkowski: Policies for Apprehension, Detention, and Removal of Undocumented Immigrants, November 20, 2014 for detailed priority enforcement regulations. ii. USCIS: will issue an NTA when required to by statute or regulation and in cases of fraud;

5 iii. CBP: will issue an NTA when an arriving noncitizen is deemed inadmissible and does not seek withdrawal of admission, is not placed in expedited removal, and does not seek asylum. 3. NTA Requirements a. The prima facie case for inadmissibility or deportability - there are four key elements to an NTA: i. The nature of the proceedings 1. In the three check boxes identifying whether individual is an arriving alien, alien present, or admitted but deportable for x. ii. The legal authority under which the proceedings are conducted 1. Either of the first two boxes indicate that the individual will be charged with inadmissibility under INA 212. The last box identifies individuals who were admitted but have violated the conditions under which they were admitted. They will be charged with deportability under INA It is the respondent s burden to prove that she has been improperly designated either as an arriving alien or an alien present without admission or parole. iii. The acts or conduct alleged to be in violation of the law 1. DHS has the burden to prove that the respondent is not a US citizen and thus deportable. iv. The charges against the noncitizen and statutory provisions alleged to be violated. INA 239 (a)(1)(a-d). 1. The charges do not have to be specific or all inclusive. b. An NTA must include the time and place of the proceedings c. There must be a 10 day lapse between service and the first hearing to allow an individual to secure counsel. The government must provide a list of pro bono attorneys to noncitizens in proceedings. d. Service i. Service exists to provide individuals with notice of their rights and responsibilities. Individuals learn through service that they are in removal proceedings and that he or she must report changes of address to the court. ii. Service by mail: sufficient if proof that government attempted to delivery NTA to the last address provided by the noncitizen. Presumption of service may be invoked if mailing was: 1. Properly addressed 2. Had sufficient postage 3. Was properly mailed. iii. Personal service is required for individuals in confinement prison, mental institutions, hospitals, etc., provided they are competent to understand the nature of the proceedings against them.

6 1. For individuals who are confined and deemed non-competent service must be done only to the person in charge of the institution in which they are confined. iv. If the respondent is mentally incompetent, regardless of confinement, or a child under the age of 14, DHS must serve the NTA upon the person with who they reside, and when possible, serve a near relative, guardian, committee or friend. 4. Prosecutorial Discretion (PD) as a strategy for dismissal of the NTA a. Definition: A favorable exercise of PD is a decision by an agency not to assert the full scope of [enforcement] authority available to the agency in a given case. Memorandum, John Morton: Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, July 17, b. Uses: In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. Memorandum, Thomas S. Winkowski: Policies for Apprehension, Detention, and Removal of Undocumented Immigrants, November 20, c. When to seek PD? i. National DHS policy encourages PD as soon as possible. 1. Memorandum, Brian M. O Leary, Operating Policies and Procedures Memorandum 15-01: Hearing Procedures for Cases Covered by new DHS Priorities and Initiatives, April 6, d. Seeking PD Pre-Filing of NTA (generally not an option in SFILDC cases): i. When seeking PD before an NTA is filed, the following questions may be addressed with the government: 1. Whether or not the NTA should be filed; 2. What charges the NTA should include; 3. Whether the NTA should be cancelled; 4. Whether the NTA should be amended. ii. As ICE officials are hesitant to not file an NTA due to lack of information on the noncitizen, familiarizing the officer with a client s background and equities might help negotiations. iii. Declining to Issue/File: 1. If an individual is eligible for and has applied for relief before USCIS such as a U visa, then seeking PD to stop issuance of or filing of NTA is relevant. Attorneys can seek expedited adjudication of the individual s application with USCIS and request DHS to not place the client in removal proceedings by filing the NTA until the application is adjudicated by USCIS.

7 iv. Cancelling pre Filing: 1. DHS may cancel an NTA before it is filed if they are satisfied that: a. The respondent is a U.S. citizen; b. The respondent is not deportable/inadmissible; c. The respondent is deceased; d. The NTA was issued for failure to file a timely petition under INA 216(c) but that failure was excused by INA 216(d)(2)(B); e. The NTA was improvidently issued; f. The circumstances of the case have changed such that continuation is no longer in the government s best interest. 2. NTAs may be cancelled due to humanitarian reasons or because the individual is not an enforcement priority. v. Charges: 1. When charges are based on deportation grounds under INA 237, it is the government s burden to establish that the respondent is deportable by clear and convincing evidence. 2. When charges are based on grounds of inadmissibility under INA 212, once the government has proven alienage, the burden shifts to the respondent to present evidence that he or she is clearly and beyond doubt entitled to be admitted and is not inadmissible. e. Seeking Filing of an NTA i. Sometimes attorneys might urge the government to issue and file an NTA so a client may have the procedural protections of an immigration court hearing under INA Post Filing Strategies a. Once an NTA is filed with the court jurisdiction vests with EOIR and the ICE trial attorney represents the interest of the United States. DHS discretion is reduced post filing and discretion becomes visible in dropped charges or in joint motions to administratively close or terminate proceedings, or failure to oppose motions. b. Administrative closure: Admin closure suspends proceedings by removing a case from an IJ s active docket. A case may be re-calendared by either party. IJs are able to grant motions to admin close over objections by either party following the BIA s 2012 decision in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). c. Termination: Proceedings may only be terminated by an IJ upon request/motion by either party. If granted, the matter is dismissed generally without prejudice and DHS may file the same charges at a later time. Motions to terminate may be filed because an NTA is improperly served, legally deficient, or defective, DHS has failed to meet its burden, or because the respondent has established a prima facie case for naturalization and has presented strong humanitarian reasons. d. If it appears that the government obtained information unlawfully from the client, then file motion to suppress and deny charges and do not concede alienage.