1. How to Represent Unaccompanied Minors in Removal Proceedings Basics of Immigration Court and Removal Proceedings ABA Section of Litigation New Orleans, LA April 15, 2015 1 Karen T. Grisez Fried, Frank, Harris, Shriver & Jacobson LLP Washington, DC (with thanks to Anna Gallagher and the D.C. Bar)

2. Preliminary Information 2

3. The Main Players U.S. Department of Justice, EOIR, Immigration Judges and BIA U.S. Department of Homeland Security, a) Immigration and Customs Enforcement b) U.S. Citizenship and Immigration Services State Court in SIJS cases The Respondent and You 3

4. Important Information Where is the court? When is the hearing? http://www.justice.gov/eoir/; 1-800-898-7180 http://www.justice.gov/eoir/ May need to speak directly to Court personnel in UAC cases. Who is representing DHS? http://www.ice.gov/about/district_offices.htm Immigration Court Practice Manual: Make sure to consult when preparing to represent noncitizens in removal proceedings. http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page 1.htm. http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page 1.htm 44

5. Removal Proceedings for Minors 5

6. Types of Removal Proceedings Removal Proceedings Before IJ Under INA §240 In absentia proceedings under INA §240(b)(5) Expedited Removal Proceedings under INA §235(b) (only for fraud/misrep or lack of proper entry docs) Note that initial jurisdiction over asylum claims filed by minors in removal proceedings is before Asylum Office of USCIS pursuant to TVPRA 66

7. Charges and Placement in Removal Proceedings 7

8. Notice to Appear What is the Notice to Appear (NTA)? Form I-862 - charging document that commences removal proceedings. Who can serve the NTA? When do proceedings commence? 88

9. Notice to Appear (cont’d) The NTA must describe the following: The nature of the proceedings; The legal authority for the proceedings; The acts or conduct alleged to be in violation of law; The charges against the respondent and the statutory authority for those charges; Right to counsel Change of Address Rules 99

10. Two Types of Hearings in Immigration Court Master Calendar Preliminary and quick Often likened to criminal arraignment Pleading and Scheduling (Subsequent masters for filing applications for relief) Individual Usually 2 - 4 hours Evidentiary trial on the merits Decision - usually oral from the bench; written occasionally 10

11. Entry of Appearance Must file EOIR 28 Notice of Entry of Appearance with Immigration Court (green paper). Limited appearances currently not permitted. Must continue representation until client terminates representation or IJ grants motion to withdraw or substitute counsel. For asylum claims, separate Form G-28 is required to appear at the USCIS Asylum Office (blue paper). 11

12. Reviewing and Obtaining Copy of Files 12

13. Reviewing Existing Court File (if there have been previous hearings) Must have EOIR 28 or signed client consent form on file to request review. Contact court clerk to schedule time to review file and to listen to tapes. May only obtain limited copies of documents. 13

14. EOIR Freedom of Information Act Request File written request with EOIR General Counsel. http://www.justice.gov/eoir/efoia/foiafact.htm http://www.justice.gov/eoir/efoia/foiafact.htm Expedited processing available. Consider whether facts indicate need for separate FOIA’s with other agencies. 14

15. Master Calendar Hearing Proper Service of Notice to Appear? Can be served in person or by regular mail. If counsel does not have the NTA, may request a copy from ICE OCC and/or request continuance to obtain and review Formal Reading of NTA Pleadings Designation of relief Designation of country of removal Filing issues Advisals Do not skip over analyzing of any of these steps. Finally, continuance or Scheduling of Individual Hearing 15

16. Preliminary Considerations and Challenges to NTA 16

17. Three Questions for Removal Proceedings Is the individual subject to proceedings (not a U.S. Citizen)? Is he/she removable as charged in NTA? If so is he/she eligible for relief? 17

18. Is Your Client a USC? Is your client a U.S. citizen? Birth in United States Derivative USC Naturalization Child Citizenship Act of 2000 Be especially alert to this possibility if either parent is/was a USC or served in U.S. military. 18

19. Contesting the Charges on NTA Alienage – Burden on DHS to prove. 8 CFR §1240.8 Always contest if any chance your client is a U.S. Citizen. Ask for time to explore issue if that is a possibility. Remember: U.S. citizens cannot be deported! Removability – DHS must establish by clear, unequivocal and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). 19

20. Defenses Against Removal 20

21. Overview of Potential Defenses Against Removal for Minors Asylum, Withholding of Removal, CAT Adjustment of Status, INA §245(a) (after approval of SIJS Visa) Adjustment of Status, INA §245(m) (after U-visa approval and 3 years in U status) Voluntary Departure, INA §240B (in some cases) Also consider Prosecutorial Discretion 21

22. Individual Hearing Evidentiary Trial on the Merits Any preliminary matters Removability formally determined if not previously done Opening statements (good to prepare but rarely permitted; very brief + focused on key issues) Respondent's case in chief You bear the burden on relief Respondent normally testifies first; others out of order sometimes possible. 22

23. Individual Hearing (cont’d) Cross-examination (often more extensive by IJ than by DHS) Other lay and/or expert witnesses Proffers if any as to additional witnesses Government's Witnesses (usually none) Closing Statements (typically allowed) Decision (oral or schedule for written) Reservation of appeal - either side 23

24. Burdens of Proof - Removal Burden on gov’t to prove respondent deportable by clear and convincing evidence that is reasonable, substantial and probative. INA §240(c)(3)(A). Applicant for admission must prove that s/he is clearly and beyond doubt entitled to be admitted and is not inadmissible under section 212 or, by clear and convincing evidence, that s/he is lawfully present in US. §240(c)(2). Burden on respondent seeking relief to establish that s/he satisfies eligibility requirements, and with respect to relief requiring discretion, that the noncitizen merits favorable exercise of discretion. INA §240(c)(4). 24

25. Practice Tips on Preparing Cases and Filings 25

26. Practice Tips Know your statute, regulations and case law Deal with law in applicable circuit All filings must comply with the Immigration Court Practice Manual Credibility of respondent and witnesses is key (See Real ID Act). Read all your documents 26

27. Motions 27

28. Motions Practice Tips Determine which motions you need to file as early on as possible. Make sure to comply with filing deadlines and motions requirements under ICPM. Contact ICE Office of Chief Counsel to determine its position on motion. Try for unopposed motions wherever possible and indicate that clearly. Serve copy on ICE and include Certificate of Service. See Chapter Five, Immigration Court Practice Manual. 28

29. Evidentiary Issues - Making and Preserving the Record 29

30. Rules of Evidence Although Federal Rules of Evidence do not apply in removal proceedings, spirit of the rules do apply. Note: Hearsay is expressly permitted. Any evidence offered must be probative and its use must be fundamentally fair to guarantee due process of law. FRE’s and cases applying them may be instructive as to fundamental fairness. 30

31. Standard Objections - Checklist In order for evidence to be admissible, must be material and relevant to the issue, must be reliable and its admission must be fundamentally fair. Checklist of objections: Objections to documentation: Asylum office interview notes/summary report – incomplete or irrelevant; not subject to cross examination Lack of opportunity for cross examination of affiant Incomplete document or report Untimely filing of evidence Lack of compliance with immigration court rules Unavailability of original document for inspection Authentication of documents 31

32. Standard Objections – Checklist (cont’d) Objections to questioning, especially with a child witness: Irrelevant Vague Misstatement of testimony given Argumentative; narration Prejudicial Compound question Asks for a conclusion for which witness not qualified Asked and answered Nonresponsive answer to question asked Beyond scope Lack of knowledge Failure to lay a foundation 32

33. Expert Witnesses 33

34. Experts Respondent may present expert testimony as part of right to present evidence. Not required but can be very helpful to document individual trauma, medical or psychological conditions, country conditions. Main reason for expert testimony = to give opinion testimony as opposed to facts. Look to FRE 702 as a guide to qualifying your expert. IJ must find that the proposed expert witness has knowledge that will be helpful to assist in determining a fact in issue. Include expert affidavit and CV as part of supporting documentation. 34

35. Appeals 35

36. Appeals Notice of Appeal to Board of Immigration Appeals Form EOIR-26 Fee Waiver (EOIR-26A) if needed Must be received within 30 days of IJ Decision; No Mailbox Rule. Consult BIA Practice Manual at http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm. http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm Federal Court appeals by Respondent only Motion to re-open (can be brought to Immigration Court or BIA – wherever last action in the case took place) 36

37. Asylum, Withholding & CAT Relief 37

38. Checklist of Elements Fear of persecution – past or future What is the persecution? Is it country-wide? Well-founded fear: both objective and subjective Past Persecution = Presumption of Future Persecution On account of one of five statutory grounds: at least one of the grounds must be a central reason for fear. Persecutors may have mixed motives for targeting applicant. Failure of state to protect. (Persecutor can be State or non-State actor.) 38

39. Minors Seeking Asylum 39

40. Some Common Children's Asylum Claims Race (including indigenous status) Religion (particularly a minority religion or rejection of parent's or dominant culture's religion) Political opinion (actual party membership, political activity or neutrality as political opinion) Imputed political opinion 40

41. Particular social group LGBT, Transgender cases Domestic violence to child or parent (Note recent BIA decision.) Street child Child without adult supervision Gang related cases Escaping from gangs Avoiding gang recruitment Being claimed as "girlfriend" of gang members Fear of harm from rival gangs 41

42. Special Procedures for Unaccompanied Minors (UAM) UAM: child with no lawful status in US, under 18 with no parent or legal guardian in US who is available to provide care and physical custody (unaccompanied even if in the informal care and physical custody of other adults) Unaccompanied minors: Not subject to one year deadline or safe third country agreements. BUT NOTE: (If child turns 18 after arriving in U.S., must apply within a reasonable time). Shall be ensured pro bono counsel to greatest extent possible where in HHS or DHS custody Will have application adjudicated initially by USCIS Asylum even if in proceedings Will be heard de novo in Immigration Court if not approved. 42

43. Withholding of Removal Should be considered if a bar to asylum exists ELEMENTASYLUMWITHHOLDING HarmPersecutionThreat to life or freedom Occurrence or likelihood of harm Well-founded fear of future persecution (1 in 10 chance) or past persecution if severe More likely than not (more than 50%) Nexus between harm and grounds On account of race, religion, nationality, political opinion or membership in PSG Same Discretionary v. mandatory If no bars apply, relief is discretionary If no bars apply, relief is mandatory ReliefLeads to LPR status, and then USC; can bring derivatives Only prevents return to country of feared harm. No other benefits, except EAD 43

44. Convention Against Torture Article 3 – no return to torture by the government or with government acquiescence or willful blindness No nexus required No LPR status or derivatives; only withholds/defers removal. Bars do not apply to deferral under CAT. Note: Application for asylum before DHS or IJ constitutes application for withholding and CAT relief 44

45. Preliminary Issues One-year deadline: application must be filed within one year of arrival. There are three exceptions: 1) changed circumstances; 2) extraordinary circumstances; 3) UAM Frivolous asylum application: IJ will advise of consequences. Still may be eligible for withholding or CAT relief. Once demonstrates statutory eligibility for asylum, must prove that s/he merits favorable exercise of discretion. 45

46. Bars to Asylum One year bar unless extraordinary or changed circumstances (Does not apply if under 18) Firm resettlement in another country Prior application and denial. Safe third country – Canada Persecutor of others on account of race, religion, nationality, political opinion or membership in a PSG (Comes up in gang cases) 46

47. Bars to Asylum (cont’d) Serious nonpolitical crime committed prior to arrival and outside the US Committed a Particularly Serious Crime in the US Reasonable grounds that noncitizen is a danger to the security of the US Terrorist activity 47

48. Bars to Withholding of Removal Persecution of others on account of race, religion, nationality, political opinion or membership in a particular social group Conviction of a PSC and a danger to the community Convicted of a serious non-political crime outside of US before arrival Reasonable grounds to believe danger to the security of the US 48

49. Credibility Issues and Corroboration Asylum Office Guidelines and EOIR’s OPPM 07-01 govern credibility determinations for minors Credibility generally determined by totality of circumstances: Demeanor, candor or responsiveness of witness Inherent plausibility of account Consistency between written and oral statements Consistency of statements with other evidence, including reports on country conditions Any inaccuracies or falsehoods in statements Any other relevant factors IJ adverse credibility findings must be supported by substantial evidence and specific aspects of testimony. 49

50. Credibility Issues and Corroboration (cont’d) Rule on corroboration: if counsel has or can get relevant and probative documents to support claim, should submit them. Where IJ or Asylum Officer determines that corroborative evidence required to corroborate credible testimony, applicant should comply unless s/he does not have it and cannot reasonably obtain it. Where s/he cannot obtain evidence, should explain why not available and provide evidence of efforts made. 50

51. Tips on Effectively Presenting Your Case 51

52. Tips on Presenting the Best Case – Asylum for Minors Be familiar with statutes, regulations, caselaw Know credibility and burden of proof issues as per REAL ID Exception to the one–year deadline Tell the truth Don’t believe everything you read Paper your case Read and know your materials 52

53. Tips on Presenting the Best Case – Asylum (cont’d) Pile it on – cumulative events can rise to persecution, especially for children. Recognize that ICE counsel tries more asylum cases in a year than you will in a lifetime. Know your jurisdiction’s law and BIA case law Remember that persecution can be physical and psychological. Follow Immigration Court Practice Manual if before the IJ. 53