Case Flow Processing Policies for Certain Non-Detained Cases

Introduction

On November 30, 2020, EOIR Director James McHenry published a new binding policy memorandum for immigration courts titled “Enhanced Case Flow Processing in Removal Proceedings” [link]. The memorandum outlines the implementation of “a new case flow processing model for non-status removal cases involving non-detained aliens with representation.” In this article, we will work through the new policy and explain what it means going forward for affected aliens in removal proceedings.

Which Cases Does the New Case Flow Processing Model Apply To?

The memorandum explains that the new model applies to “non-status removal cases involving non-detained aliens with representation.” This means that the model “will not apply to cases of detained aliens, aliens not placed in removal proceedings (whose removability is already established and who are also generally detained), and aliens proceeding pro se.” Furthermore, “this model will not apply to cases that have been approximately placed on a status docket-e.g. a case of an unaccompanied alien child with an asylum application pending before the Department of Homeland Security (DHS).” Finally, “this model will not apply to cases in which a protective order has been issued or that involve the handling of classified information.”

Policy Background

It is the policy of the EOIR to encourage parties in immigration court proceedings “to advance or resolve cases through written pleadings, stipulations, and joint motions.” The EOIR similarly “discourages holding master calendar hearings in cases involving represented aliens solely for the purpose of filing an application and then scheduling a subsequent individual merits hearing…” Instead, the EOIR encourages immigration judges “to issue a pre-hearing scheduling order establishing a deadline for the filing of any applications of protection or relief from removal in lieu of scheduling a master calendar hearing solely for the purpose of filing that application and scheduling a future individual merits hearing.”

The EOIR notes that most aliens in removal proceedings before an immigration judge have legal representation. The memo suggests that aliens who are seeking asylum in immigration court proceedings are even more likely to be represented than aliens who are not seeking asylum.

The memorandum explains that, in the view of the EOIR, holding master calendar hearings to deal with preliminary and routine matters “incurs unnecessary costs for respondents and representatives and creates inefficiencies in case processing for immigration courts.”

New Case Flow Processing Model

In most cases under the new case flow processing model, where in a non-detained case a representative files a Form EOIR-28 at least 15 days before a scheduled master calendar hearing, “the hearing will be vacated and a scheduling order will be sent to the parties, setting deadlines for the filing of any written pleadings, any evidence related to the charges of removability, and any applications for relief and protection sought by the respondent.” The scheduling order “will also contain a copy of the biometrics notice and instructions, along with the consequences of failing to comply with that notice.”

Although the new EOIR policy provides that scheduled master calendar hearings should be canceled when the respondent's representative files a Form EOIR-28 at least 15 days before the hearing, “[r]espondents and representatives remain obligated to appear at any scheduled hearing until notified by the relevant immigration court that a hearing has been vacated and resheduled.” That is, if for whatever reason an immigration judge does not vacate the scheduled hearing, the respondent and his or her attorney are required to attend, regardless of the instant policy memorandum. Failure to appear at a scheduled removal hearing may result in the alien being ordered removed in absentia under INA 240(b)(5).

In most cases, the parties in immigration court proceedings will be given at least 45 days from the date of the vacated master calendar hearing to submit written pleadings, evidence related to the alien's underlying removability, and any applications for relief or protection for removal. Notwithstanding this guidance, however, “the specific deadline remains committed to the discretion of an Immigration Judge.” Once the immigration judge has received the pleadings, evidence related to removability, and any applications for relief or protection, the judge will generally either issue an order resolving the case outright or a hearing notice scheduling the case for an individual hearing on all outstanding issues. Outstanding issues may include contested removability and the merits of any applications for relief or protection from removal.

If the immigration judge issues a hearing notice, “he or she will also issue another scheduling order setting deadlines for the filing of any motions, briefs, or supporting documents prior to the scheduled hearing.” The scheduling order will also direct the Department of Homeland Security (DHS) to confirm whether the alien respondent had already provided biometrics and other biographical information.

If the immigration judge subsequently resolves the case through a dispositive order prior to the scheduled hearing, the immigration judge will issue the order and vacate the hearing notice.

In cases where the alien respondent's representative files an EOIR-28 within 15 days of a scheduled master calendar hearing, or does not file it until the master calendar hearing itself, the immigration judge will not vacate the master calendar hearing. The alien respondent and his or her attorney will be required to appear at the scheduled hearing. If the issues cannot be resolved at the hearing, the immigration judge will generally issue a scheduling order at the hearing. However, the policy memorandum notes that “the Immigration Judge retains discretion to take any appropriate action consistent with the law.”

In light of the interest that many non-detained alien respondents have in prolonging their immigration proceedings, the EOIR warned against representatives engaging in “gamesmanship” to delay proceedings. The EOIR stated that it “expects all representatives to comport themselves in an ethical and professional manner.” Representatives who attempt to deceive the immigration judge in order to delay proceedings or otherwise engage in frivolous behavior to delay proceedings may be subject to disciplinary action.

Conclusion

The EOIR's new case flow processing model is designed to limit the number of times that alien respondents and their representatives have to appear in immigration court by creating a process whereby filings that can be completed and submitted outside of court are done so. “Appear in court” includes things such as telephonic hearings, not only in-person appearance. The EOIR hopes that this policy reduces costs for respondents and their representatives and conserves immigration court resources for hearings that inherently require the presence of the parties. The policy highlights why it is important for aliens in removal proceedings who seek to contest their underlying removability and/or seek relief or protection from removal to retain counsel as soon as practicable.