February 21, 2019 Substantive Law

Expectations of an Immigration Hearing: How to Prepare, Part 3

By Julie Houth

Immigration matters are often confusing and overwhelming to a non-attorney, especially now given the changes to the laws. This article is the third and final installment of our series discussing the procedure of immigration hearings and how to prepare. In this series current attorneys who practice immigration law in solo and small law firms in the United States provide guidance and advice about this stage of the immigration proceedings. Individuals and lawyers should be aware that immigration laws often change, especially in the present political climate. This article addresses immigration procedures that are applicable now.

Pre-Immigration Judge’s Decision and Immigration Judge’s Decision

Once an individual receives a Notice to Appear (NTA), he or she will need to appear in immigration court, formally known as the Executive Office for Immigration Review (EOIR). More information on what to do when an individual receives an NTA can be found in Part 1 of this series.

After an individual receives an NTA, there are generally three stages in an immigration hearing: (1) the Master Calendar Hearing (MCH); (2) the individual hearing, also known as the Merits Hearing; and (3) post-hearing proceedings. More information on an MCH and how to prepare for a Merits Hearing can be found in Part 2 of this series.

At the Merits Hearing, the immigration judge will either (1) grant relief or (2) issue orders of voluntary departure or removal. The immigration judge sometimes will state the decision immediately in open court, but in some cases the judge will choose to continue proceedings in order to provide a written decision.

Attorney Nallely Abad of Velasquez Immigration Law Group in Las Vegas, Nevada, provides some background, stating, “If the decision is going to be in writing, your client will just have to await a decision.” Attorney Daven R. Ghandi of Smotritsky Law Group, PLLC, in New York City further adds, “At the conclusion of the individual hearing, the judge will issue his or her decision. They will articulate the reasons why the client either won or lost their case.”

After an individual has gone through stage one and stage two, he or she will be in stage three, the post-hearing proceeding stage. At this stage, an individual’s hearings have come to an end, but there could be more proceedings in the future. Whether an individual will take future actions in his or her case will depend on whether he or she is satisfied with the immigration judge’s decision.

Order to Be Removed in Absentia

Individuals should make every effort to appear in court when requested; unfortunately, some individuals miss their hearing, and the consequence can be very severe. According to Ghandi, “If an individual fails to appear for their immigration court hearing, an order to be removed will occur in their absence. Some reasons individuals miss their hearing date include not receiving a notice of hearing from the government; the individual was involved in an accident; the individual has poor health; or other personal problems. They may have received ineffective assistance of counsel where their attorneys failed to advise them of their court date.”

Attorney Ian M. Seruelo of the Law Offices of Ian M. Seruelo in San Diego, California, says in his experience, “When a respondent fails to appear in a scheduled removal proceeding, the immigration judge will first determine if there was proper notice to the respondent. The Department of Homeland Security (DHS) has the burden to establish by clear and convincing evidence that proper written notice was provided. DHS will also have to show, under the same burden of proof, that the respondent is removable. If DHS is able to meet its burden, then the immigration judge would order the respondent removed in absentia.”

Even if individuals miss their hearing, both Ghandi and Seruelo suggest that the individuals or their attorney file a written motion with the court to reopen the case. Ghandi further advises, “The respondent must file a motion to reopen within 90 days of the date of entry of a final administrative order of removal. However, orders of removal entered in absentia by an immigration judge may be rescinded within 180 days upon a showing of ‘exceptional circumstances.’ However, there are no time limitations if respondent’s failure to appear was because of a lack of notice. If that were the case, the respondent may file a motion to reopen at any time.” Lastly, Ghandi says, “An immigration judge’s decision to deny a motion to reopen may be appealed to the Board of Immigration Appeals (BIA). However, there is no automatic stay of removal or deportation pending the BIA’s determination.” These wrinkles in the law can really alter an individual’s case. Thus, even though the complexity of each case may differ, retaining an immigration attorney who is familiar with the individual’s circumstance could make a huge difference in whether the individual prevails.

Post-Decision Activity

After the immigration judge’s decision, the government or the individual can elect to challenge the immigration judge’s decision. A motion to reopen or a motion to reconsider can be made to the immigration court or through appeal with the BIA. If the DHS attorney reserves appeal, it could mean that more proceedings are on the way. Note that reserving appeal is not the same as filing an appeal. To reserve appeal means that the attorney wants the right to follow up in a given time frame and file an appeal to the BIA. The sections below discuss what to expect when a party wants to appeal the immigration judge’s decision and what to expect if relief is granted.

Appeals: Challenging an Immigration Judge’s Decision

Abad, Ghandi, and Seruelo share their experiences and advice on when and how to challenge an immigration judge’s decision.

Abad says, “If a decision is not in your client’s favor, then they have the ability to appeal, but they have to do so within 30 days of the decision. Otherwise the decision becomes final.” She further provides a timeline of events: “If relief is not granted, then you have an order of removal. Government officials including U.S. Immigration and Customs Enforcement (ICE) will notify individuals of a date and time of when they must report for deportation. If the individual files for appeal, it acts as an automatic stay from the order until the BIA has made its decision. Depending on the issue that is being appealed, an individual can take the matter up to the circuit court as well. The process with the BIA can take anywhere from six months to a year. The process with the circuit courts vary. If there is a legal issue that might provide relief in appeals, then we notify our clients of this option.”

Ghandi dreads hearing these words from the judge, “Accordingly all relief is denied,” especially when he knows that the worst would happen. He says, “It is essentially a death sentence to my client where they are forced to return to their home country and be exposed to their persecutors. However, this is not the end. Take good notes of the judge’s decision. At the end of his or her decision, the judge will ask whether the respondent wants to appeal. If the attorney reserves appeal, they would have 30 days to submit the appeal. Appeals are made to the BIA. Once the appeal is filed, expect long wait times for a decision from the BIA.”

Seruelo also has experience with the BIA and has had to advocate for his clients zealously at this stage. He says, “If the immigration judge denies relief, then as long as you were able to reserve appeal, that option would be open for your client to pursue. Within 30 days from the date of the decision, you should submit a notice of appeal to the BIA. A motion to reconsider is another option if there are grounds to assert that the immigration judge made a mistake of law or fact in making his or her decision.”

The appeals process can be complicated and time consuming, so it is always helpful to face the appeals process with an attorney who is an expert in immigration law and can dedicate the time to ensuring the best outcome.

Relief Granted: Cancellation of Removal and Adjustment of Status

There are many different scenarios that can happen even after relief is granted. Seruelo and Abad briefly share their experiences below.

“If the immigration judge grants the relief that your client applied for, then the one thing that you need to do is to assist your client in accessing the benefits that comes with that relief. Provide information on the legal requirements in maintaining such relief or any other information that would benefit the client in his/her new status,” advises Seruelo.

Abad says, “If a decision is rendered in your client’s favor, then you would apply with U.S. Citizenship and Immigration Services (USCIS) for the granted status. If relief is granted, there is still a process that must be completed depending on the relief. For cancellation of removal for certain non-permanent residents, the individual must also schedule an appointment for what is called Citrix processing. This all depends on whether they were immediately granted this benefit or whether they are waiting to be eligible for the grant because there is an annual limitation on how many grants can be made.”

The scenarios above are just a few different outcomes an individual could experience, but if an immigration judge grants relief, the individual is another step closer to obtaining legal status.

Final Thought

Every immigration case is different, and legal advice from an immigration lawyer should be sought in order to proceed with caution. Although individuals may fear the unknown outcomes of their case and the financial burdens that come with hiring a lawyer, these concerns do not outweigh the need to have legal help. Abad suggests, “Lawyers should consult the Immigration Court Practice Manual and stay up to date with the new decisions coming out from the BIA, circuit courts, and Supreme Court.” As discussed in the previous installments, there are ways to get help, including nonprofits such as Legal Aid immigration clinics and immigration law firms that could offer a reasonable attorney’s fee. “For attorneys new to immigration law or new to Immigration Court proceedings, they should volunteer and take pro bono cases with the Immigration Justice Program of the ABA or other nonprofits providing free legal services to those in removal proceedings. These groups provide some form of training to help one get acquainted with the tasks and procedures in defending an individual in Immigration Court,” advises Seruelo. Ghandi provides his final thoughts on this matter by saying, “If lawyers want to take on a case, I would recommend signing up with one of the many legal organizations that offer pro bono opportunities. These organizations often offer excellent trainings, materials, and guidance to attorneys. I would also challenge bigger law firms to (1) create a pro bono programs; and (2) turn their pro bono efforts toward immigration.” He concludes by referencing the following quote from a poem titled Home written by Warsan Shire, a Somali-British writer and poet: “No one puts their children in a boat unless the water is safer than the land.” Ghandi shares that he once read this poem that was written about asylees and how it reminds him of the important work that we lawyers do. The need for strong and competent lawyers in the immigration field grows every day. The legal community should continue to do its part to advocate for those in need.

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Julie T. Houth, Esq., LL.M (Taxation), is a staff attorney for Robbins Geller Rudman & Dowd LLP, a law firm with more than 200 lawyers across the nation specializing in complex litigation representing plaintiffs in securities fraud, antitrust, corporate mergers and acquisitions, consumer and insurance fraud, multi-district litigation, and whistleblower protection cases. Julie is based at the firm’s headquarters in San Diego, California. She is an American Bar Association Young Lawyers Fellow for the 2018-2019 term with the GPSolo Division and she serves as one of the New York State Young Lawyers Delegate to the American Bar Association House of Delegates. Julie is also part of the leadership committee for the San Diego County Bar Association's Tax Law Section. She may be reached at jhouth@rgrdlaw.com.