January 22, 2019 Substantive Law

Expectations of an Immigration Hearing: How to Prepare, Part 2

By Julie Houth

Immigration laws in the United States have changed many times throughout history. This article is part two of an ongoing series that discusses the process of immigration hearings and how to prepare with perspectives and advice from current immigration attorneys in the field located in various areas of the country. Note that the laws discussed here are applicable at this moment in time and are subject to change in the future.

 

Background Information of Immigration Court Proceedings

The Executive Office for Immigration Review (EOIR) handles immigration matters and runs the immigration courts. A single immigration judge at that court will hear a single case even if the case extends to different days. There can be more than one immigration judge at each immigration court. Generally, the first hearing takes place a couple months to a year after an individual receives a Notice to Appear (NTA). Note that if the individual is detained by immigration authorities, the case should move much faster and the immigration court should schedule the hearing as soon as possible, which generally is within a few weeks. The NTA indicates the initiation of removal proceedings against an individual. The individual must appear in court on the specified date on the NTA or a future date to be determined by the EOIR. More information about the NTA can be found in part one of this series.

Master Calendar Hearing

A Master Calendar Hearing (MCH) is a brief, preliminary hearing on immigration matters that discusses how the case will proceed. When preparing for an MCH, attorney Daven R. Ghandi of Smotritsky Law Group, PLLC, in New York City, first reviews the NTA with his clients. Ghandi states, “The NTA contains information about the respondent that the government alleges, such as their country of origin, the date and place of entry, and the manner in which they entered the country. Because clients often will not have the NTAs with them, if they have had a previous attorney, I would normally request copies of all documents.” The MCH is usually short and lasts approximately 15 minutes, but the issues reviewed during the MCH are critical to any case. Thus, Ghandi suggests individuals and their attorneys send a request to review the file with the immigration court in advance of the hearing.

There will be several MCHs scheduled at one time. The judge will call each individual by his or her Alien Registration Number (A-number) and name. Note that the judge should be notified if an interpreter is needed; the court should provide one for free. Individuals cannot bring their own interpreters.

During an MCH, the court will not address any legal claims or defenses in the case, and the immigration judge will not make any rulings regarding legal issues at this time. The judge will ask the individual for brief identification information such as an individual’s name, address, native language, and any other languages in which the individual is fluent. If the individual has legal representation, the individual may present his or her attorney at this time to the judge.

Next, the judge will review the charges listed against the individual in the NTA. Attorney Nallely Abad of Velasquez Immigration Law Group in Las Vegas, Nevada, says that it is very important to have reviewed the NTA before the MCH takes place. This is because charges should either be admitted or denied, and incorrect information on the NTA should be brought to the attention of the judge. Individuals or their attorneys will then be able to tell the judge the forms of relief sought, such as withdrawal of removal, cancellation of removal, adjustment of status, or asylum. After the relief sought has been requested, the judge will typically designate the individual’s home country as a country of removal as protocol.

The judge will then set important dates in the case, such as (1) the deadlines for submitting any pertinent applications, amendments, or additional information; (2) the date of another MCH, if necessary; and (3) the date of the Individual Hearing. It is important that all deadlines set by the judge are met. If additional time is needed, the individual can request an extension of the deadline but will need to explain why additional time is needed. In Abad’s experience, “An immigration judge usually will allow for an attorney to ask for a brief extension of time called ‘attorney preparation time,’ and at the following hearing, you have to have all forms of relief ready to be filed. This is key when you are hired a few days before an MCH.” It is especially important to request another MCH if the individual needs time to find an attorney or if the individual needs to confer with the attorney because the individual just retained legal representation.

Ghandi advises individuals and their lawyers to go early and observe other attorneys. He further states, “Some judges have their own requirements during master hearings such as written pleadings. Speak to the judge’s clerk to see if there are any courtroom procedures the judge prefers. I would also advise newer attorneys to read through the immigration court practice manual.” At the conclusion of the MCH, another notice will be issued specifying the date for the next MCH or for the Individual Hearing.

Individual (Merits) Hearing in Removal Proceedings

The Individual Hearing, also known as the Merits Hearing, is where the individual and the government present the full case by testifying in front of the judge with the opportunity to present witnesses. Non-citizens have the opportunity to present arguments before an immigration judge and defend their right to remain in the United States. This includes any forms of relief sought from removal, and the judge will make a final decision on whether the individual can remain in the United States or will be deported back to his or her designated country.

Ghandi says, “To prepare, read through the entire record of proceeding. I like to review the file at least three months before the trial date to make sure all the submissions are accurate. Judges in New York have varying call-up dates for final submissions, ranging from three months to 15 days before the Individual Hearing.” If the individual brought witnesses to testify on his or her behalf, each witness will be brought up one at a time and questioned in the same way the individual was questioned by both his or her attorney and the government attorney. In his experience, Ghandi says witnesses can help because they add to the client’s credibility. Witnesses could be country condition experts, medical professionals, or eyewitnesses. To streamline his preparation, Ghandi prepares his clients and any witnesses by reviewing their affidavits with them and going through questions.

Unlike the MCH, the Individual Hearing may go on for more than one day because it focuses on a specific individual’s case. After all evidence has been presented, witnesses have testified, and the legal arguments have been made on both sides, the judge will decide whether the individual should be removed from the United States.

Legal Resources and Future Topic for Discussion

Several nonprofits organizations, including Legal Aid Society immigration clinics located across the country, provide pro bono legal services to individuals who may need help with their immigration matters. Some law firms offer payment plans that clients can afford so legal relief and services can still be provided. Abad says that at her firm, “During our consultation, we advise potential clients of any and all types of relief that they are potentially eligible for and then discuss the requirements and realistic time frames.” Abad further states, “Our office charges based on a retainer fee established by the managing attorney, and the retainer is divided up into monthly payments that allow for the client to afford our services and be comfortable with the payment plan.” Lawyers with a specialized practice in immigration can really streamline an individual’s immigration case, so it is always wise to consult an attorney.

The next article in this series will discuss the conclusion of the immigration hearings and the options and remedies available based on the immigration judge’s decision.

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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.