AILA EOIR LIAISON MEETING 9/29/09. Participants:

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1 AILA EOIR LIAISON MEETING 9/29/09 Participants: EOIR: Gary W. Smith, Assistant Chief Immigration Judge, via telephone conference J. Dan Pelletier, Immigration Judge ICE District Counsel: Alfredia Owens, Chief Counsel Tracy Short, Deputy Chief Counsel Ray Bethune, Clerk Cynthia Long, Court Administrator AILA Liaison Team: Sarah Owings Rebeca Salmon Marshall Cohen Leslie Diaz Key: PERSON SPEAKING NOTED IN [CAPITALS] // ANSWERS NOTED IN BOLD Announcements from ACIJ Smith The court at Stewart Detention Center will be officially opening Jan 2010 o The on site court will consist of 2 new IJ s; 3 Legal Assistants and a Court Administrator Ray Bathune is promoted to the position of Stewart Court Administrator. The previously designated 2 nd IJ in the Charlotte court has declined, another has been selected and will begin training. This new IJ should come on board soon. Responses to previously submitted questions from AILA: 1. We have heard reports from aliens that the Judges have compelled respondents to take orders of removal or voluntary departure at the first master hearing without offering the opportunity to continue the case in order to find an attorney. Please advise if any of the judges report this as the policy in their courtroom. a. [ACIJ SMITH] Forced VD is a matter of great concern where the attorney should send the A# to IJ Smith and Administrator Long for investigation. A case of abuse by Judges should be reported. Complaints may be made through the website and/or an can be sent directly to IJ Smith. In pro se cases the IJ has a responsibility to ensure that the respondent understands fully the process, so often times they will question the respondent and ensure that they were properly served, understood their responsibility to obtain counsel if desired, at their own expense, and a review is done of their file to identify any relief available.

2 b. [IJ PELLETIER] Well, for my part, failure to reset a case to find an attorney depends on personal service as coded in 239B of the Act. Hearing notices advise Respondents that they have at least 10 days in which to prepare for the hearing and seek counsel. So, if {Respondent] was personally served, they had their rights explained to them in regards to finding an attorney and were given a list of legal services and now here we are several months later at the master calendar and they are appearing without an attorney. If they show up [at MC] and show me an appointment set for Catholic Charities, or tell me an attorney s name they are talking with, then I ll reset it. If they ve made zero effort there will be no reset. 2. Attorneys have reported that the court no longer accepts Form I 471 to affect an administrative closure of a case and now requires a Joint Motion to Terminate. Is this correct? If so, please explain the reason for this change, and what additional information, if any, the court seeks in support of such a motion. a. [ADMINISTRATOR LONG] I 471 is a DHS form. The Court has not discontinued use and will still accept it. I believe DHS HQ said the Form I 471 would no longer valid after 7/30/09. b. [ALFIE OWENS] Our office policy is no more I 471 s. We require you submit a Joint Motion to Terminate. If an attorney has already submitted an I 471, an attorney from the Chief Counsel s office will call you and request a Joint Motion to Terminate. c. AILA PRACTICE POINTER the motion should have only general information, so that the district counsel attorneys don t have to go back and confirm each fact you write in the motion. So Respondent is beneficiary of approved I 130 and has filed an I 485 as opposed to Respondent, who was married on March 1, 2008, in Cobb County, Georgia, filed an I 130 on April 1, 2008, which was approved in August Scenario: A Respondent is detained. A Motion to Reopen that carries an automatic stay of Removal is pending with the court for several weeks. What steps (in addition to clearly marking in the motion s caption that it is a detained case) should the Attorney take to put the court on notice that the motion concerns a detained case and thus should be expedited? For detained individuals, it is our practice to expedite Motions to Reopen. However, if a person was not previously detained when proceedings were initiated, but now is detained, the person is NOT in the system as a Detained alien, so it will benefit you to annotate clearly on the filing: DETAINED in large letters, bold, (perhaps red). Please contact the court administrator if there seems to be a problem.

3 The call up times for these Motions was thirty days, meaning ICE had thirty days to respond to these motions. ACIJ Smith suggested that fifteen days is a more reasonable time limit. The change has been implemented. i. Statistics since Jan 1, MTR filed in Atlanta 2. There is currently 1 pending 3. 7 were completed in a time frame exceeding 60 days 4. People have put forth ideas to help with the crowding that occurs at Master Calendar hearings (especially in light of the larger dockets). We are interested to hear your thoughts on these ideas and any others that the Court may have: a) Would it be possible, where space allows, for the courtrooms to be set up with chairs behind the respondent s table for attorney seating as exists in Judge Houser s courtroom? b) If no chairs are available, can those Respondents without attorneys wait in the waiting room for the attorney cases to finish? This would cut down on the crowded shuffle and chit chat that disrupts hearings and it would also allow everyone breathing room to do their jobs more effectively. a. [ADMINISTRATOR LONG] i. There has been no docket size increase. What we have seen is less inabsentia orders and more guests and family members of individual Respondents. a. Tuesdays and Thursdays are the heavy days because all four IJ s hold Masters ii. Solutions: 1. We will request that all visitors remain in the waiting room (this includes spouses, who can enter the courtroom at the time of the hearing if their presence is necessary.) 2. We will try to stagger appointment times a. 8:30am Attorney and resets b. 9 am 1 st appearance pro se c. 9:30 am Expedited Asylum 3. There will be no additional chairs (as in IJ Houser s courtroom because it is not the norm and it s not how other courtrooms are across the country 4. Each of the EOIR courtrooms are designed to accommodate approximately 50 persons from the litigation area back, which should be adequate given the size of the masters. 5. Is there a way that we can get the newly approved written pleadings from each judge and put them out via the AILA website or distribution list? This would help save time for the attorneys as they check in and prevent rejected pleadings in the event that further changes are made to the format.

4 Most of the IJ s use same pleading forms now so the ones in the courtrooms are it. Attorneys are welcome to make copies of the 1 version we have and additionally, the pleadings will be provided to AILA via When calling the EOIR information line, cases occasionally will contain the message no information can be made available about this case, contact the local Court for details. We understand that this message is used for proceedings of a sensitive nature; however cases on Judge Sease s docket often contain this message in cases that are not of a sensitive nature. It can create some difficulty in finding out hearing dates and Appeal status. Is there a reason for this and how do we go about correcting it? a. [ADMINISTRATOR LONG] a. Please provide me with specific case information with A# s so that I can report this to the helpdesk. They run the automated system. b. In sensitive cases (VAWA, ASYLUM any time an I 589 has been filed), information will not appear on the automated system; this is for their protection. c. Once the case is noted as not of a sensitive nature, (the I 589 is withdrawn and 10 year cancellation is sought) the information should become available on the automated system. d. You will have to call the court or stop by to obtain case information. You must be the attorney of record with a properly filed E Is it possible to develop a local policy for handling conflicts with State and Federal Courts for solo practitioners? The Practice Manual has no apparent procedure for conflicts and typically there is not time for an attorney to submit a request for a continuance under the normal guidelines. This is because the procedure works as follows: In state courts, specially set cases for a set time and place as individual hearings are the exception, not the rule. Instead, Jury trial cases are set to be heard during a one or two week (or sometimes longer) trial calendar. Cases are typically not called into trial in State Court until the night before during the week(s) of trial calendar. If a lawyer does not show up, he or she can be held in contempt. We recognize that a sudden last minute absence would be a burden on the court, and would like to develop a way to let the Court know in advance that being called into trial in another venue is a real possibility.

5 Perhaps a pleading that serves as advance warning of the possible absence could be timely submitted under the rules so that in the event that a continuance or a late start becomes necessary, an Attorney would not prejudice their client before the court due to the sudden and unavoidable conflict? a. [ADMINISTRATOR LONG] a. Everything should be addressed by Motion (ie. Motion for Continuance) not by a conflict letter because the Court cannot continue based solely on a conflict. The Judge needs a Motion. b. As far as Court deadlines we will not reject the Motion even if it is outside the deadlines b. [ACIJ SMITH] a. The OPPM has suggestions. Why do the attorneys not merely file a Motion to appear telephonically? This works for MC and Bond hearings and the IJ s should accept this. c. [IJ PELLETIER] a. I have a few comments. We understand that solo practitioners have very short call up times in state court. This is not a continuing problem but the IJ s can have a policy just to reset the cases. d. [Attorney Salmon] a. Perhaps I can make a suggestion. I often appear in State court and have to be there by 10am. Would it be possible to show the EOIR Clerk a copy of my notice to appear elsewhere as proof of my conflict and thereby be put at the front of the line so to speak for the attorneys once MC starts? This type of request is standard practice in State and Federal courts. e. [IJ PELLETIER] a. That s a very reasonable request. Check in with the clerk and ask to please go first. f. [Attorney COHEN] a. What about conflicts within Atlanta and Charlotte courts? g. [Administrator LONG] a. Submit a Motion for Continuance to the court where you can not appear. Or a Motion to Appear Telephonically. But, if they are both MERITS then

6 h. [IJ PELLETIER] i. [Clerk RAY] talk to the court and they will reschedule. Neither court takes precedence just file the Motion. a. I would think MERITS take precedence over MASTER CALENDAR a. Aged cases over new cases! j. [IJ PELLETIER] a. If this is a Master Calendar, where everything can all be handled by paperwork, or over the phone, there should be no problem. It is possible to provide individual hearing dates without having everyone come to court. That could be accomplished by timely submitting a Motion with the pleading sheet and the hearing can go forward without the Attorney. k. [Attorney Diaz] a. What to do if there are several conflicts the same day? Like here in Atlanta on Tuesday and Thursdays l. [Administrator LONG] a. Get here early, check in with all clerks and tell them where you are going first. b. If the IJ passes you, let the clerk know when you return to the courtroom and you will be called next. 8. AILA would like to host the judges at an upcoming Atlanta Chapter lunch meeting. Would one or more of the judges attend, and if so, would one or more speak and entertain questions submitted in advance? a. [ACIJ SMITH] a. Good idea! Just submit in writing to the Court with the following: b. Who you are requesting; who the audience will be; what you are asking to address; if a meal will be included etc. c. Regulations require that the request be forwarded to CIJ Smith and an Ethics Officer for approval. Most are approved and this sounds like a good event.

7 9. If the Respondent has a Charlotte address, but has a court notice to appear in Atlanta will the case stay here or automatically be sent to Charlotte? [Administrator LONG] When the Charlotte Court opened everyone with a North or South Carolina address was mass transferred to NC EOIR. If you now want your client to be moved you will have to submit a Motion for Change of Venue. 10. What is the status of the new Hall County Immigration Jail? Will there be video conference hearings done from there? a. [Administrator LONG] a. Check with Felicia Skinner for more details about this project. b. [ACIJ SMITH] a. The plan is to have video conference hearings because it is not time or cost effective to send a judge out to Hall County. 11. What is the policy regarding transferring detainees from Etowah? a. [Administrator LONG] a. All MC and BOND hearings should be via video conference (although sometimes a BOND hearing appears as a MERITS so that s why they are transported. We are working on this.) b. All MERITS will require transport of the detainee. 12. What is the status of the new E 28 which allows for limited appearances? These are vital to nonprofits so that we can keep our court notices allocated to the appropriate attorneys? a. [Administrator LONG] a. The Court will begin to accept the new E 28. Please make reference to the limited appearance when signing in with the clerk. b. This is applicable for Catholic Charities, practitioners in the same firm, and instances where one attorney covers for another. 13. I have a copy of a Joint Motion to Terminate from a TA in Charlotte. Can I use it in ATL? a. [ALFIE OWENS] a. I don t know what you have, but if you got it from one of the Charlotte TA s then I m sure it probably contains what we want to see. We are working nationally to

8 develop consistency. Generally this is ok. Everyone should be using the same basic language. b. There will be a set format forthcoming.

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