A noncitizen the DHS determines is subject to a ground of removal will generally be placed in proceedings before an immigration judge unless s/he is subject to expedited or judicial removal,[238] withdraws his or her application for admission,[239] or agrees to voluntary departure prior to the proceedings.[240]  A noncitizen may be represented by counsel, at the noncitizen’s own expense, but has no right to appointed counsel.[241]  This has led to the situation in which about half of all respondents face removal proceedings without the guiding hand of counsel, resulting in many unlawful removals.  The situation of unaccompanied minors is even worse: 90% are unrepresented.  See § 15.46(B), infra.

 

                The Executive Office of Immigration Review, which includes the immigration courts[242] maintains an automated hotline (1-800-898-7180) that provides information regarding a noncitizen’s immigration proceeding, including scheduled hearings, decision, and appeal information, upon entry of the noncitizen’s A-number.

[238] See § 15.22, supra.

[239] See § 15.16, supra.

[240] See § 15.29, infra.

[241] INA § 239(b), 8 U.S.C. § 1229(b).

[242] See § 15.10, supra.

 

DUE PROCESS - VIOLATION WHERE PROCEDURAL RULES DISCRIMINATE BETWEEN PROSECUTION AND DEFENSE
Wardius v. Oregon, 412 U.S. 470 (1973); Gray v. Klauser, 282 F.3d 633, 644 (9th Cir. 2002) (Idaho deprived petitioner of right to present a defense under Sixth Amendment when trial court used different standard for determining admissibility of hearsay statements from two dead victims. "A state rule or state judge may not without justification impose stricter evidentiary standards on a defendant . . . than it does on the prosecution.").

REMOVAL PROCEEDINGS " MENTAL COMPETENCY ISSUES
Matter of MAM, 25 I&N Dec. 474 (BIA 2011) (noncitizens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required).

BIA

IMMIGRATION COURT " CHOICE OF LAW " IMMIGRATION JUDGES MUST FOLLOW LAW OF THE CIRCUIT IN WHICH THEY SIT
Matter of Chairez, 26 I. & N. Dec. 478 (BIA 2015) (Immigration Judges must follow the law of the circuit court of appeals in whose jurisdiction they sit). http://www.justice.gov/eoir/vll/intdec/vol26/3825.pdf

REMOVAL PROCEEDINGS " MENTAL COMPETENCE OF RESPONDENT " PROCEDURE
Matter of ESI, 26 I&N Dec. 136 (BIA 2013) (where respondents mental incompetency appears manifest, the DHS should serve the notice to appear on: (1) a person with whom the respondent resides and who will be in a position of demonstrated authority; (2) a relative, guardian, or person similarly close to the respondent; and (3) the respondent).

OVERVIEW " IMMIGRATION COURTS " ADMINISTRATIVE CLOSURE
Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (Immigration Judges and the Board may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances), overruling Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996), overruled.

OVERVIEW " IMMIGRATION COURTS " ADMINISTRATIVE CLOSURE
Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (to determine whether to administratively close proceedings, an Immigration Judge should weigh all relevant factors, including: (1) the reason closure is sought; (2) the basis of any opposition; (3) the likelihood respondent will succeed in any action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any delay; and (6) the potential ultimate outcome of removal proceedings).

REMOVAL PROCEEDINGS " MENTAL COMPETENCY ISSUES
Matter of MAM, 25 I&N Dec. 474 (BIA 2011) (noncitizens in immigration proceedings are presumed to be competent and, if there are no indicia of incompetency in a case, no further inquiry regarding competency is required).

REMOVAL PROCEEDINGS " MENTAL COMPETENCY ISSUES
Matter of MAM, 25 I&N Dec. 474 (BIA 2011) (test for determining whether an alien is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses).

REMOVAL PROCEEDINGS " MENTAL COMPETENCY
Matter of MAM, 25 I&N Dec. 474 (BIA 2011) (if there are signs that respondent is incompetent, the Immigration Judge must determine whether the person "has a rational and factual understanding of the nature and object of the proceedings, can consult with the attorney or representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses.").

REMOVAL PROCEEDINGS - MOTION FOR CONTINUANCE
Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009) (unopposed motion for continuance of removal proceedings to allow adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render noncitizen prima facie eligible for adjustment of status), following Matter of Garcia, 16 I. & N. Dec. 653 (BIA 1978).

STATUTORY INTERPRETATION - UNIFORM NATIONAL INTERPRETATION OF IMMIGRATION LAWS
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("Our analysis is further influenced by the presumption that the Federal immigration laws are intended to have uniform nationwide application and to implement a unitary Federal policy. Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43-44 (1989)). Therefore, absent clear congressional guidance to the contrary, the meaning of the term "crime of child abuse" will be determined by reference to a "flexible, uniform standard that reflects the federal policies underlying" section 237(a)(2)(E)(i) of the Act, and not by reference to legal classifications that vary from State to State. Kahn v. INS, supra, at 1414-15; see also Matter of Rodriguez-Rodriguez, 22 I&N Dec. 991, 995 (BIA 1999).").

JUDICIAL REVIEW - REMOVAL HEARINGS - CONSOLIDATION
The regulations do not specifically address the issue of joinder or consolidation, but the Immigration Judge has wide latitude to order consolidation if necessary to promote administrative efficiency. Matter of Taerghodsi, 16 I. & N. Dec. 260, 262-63 (BIA 1977) (citing former 8 C.F.R. 242.8(a)). Consolidation is proper when two or more hearings share the same or substantially similar evidence and material to matters at issue. 28 C.F.R. 68.16. Where a consolidated hearing is held, a single record of proceedings will be made, the evidence introduced in one matter may be considered as introduced in the others, and the hearing officer has discretion to make either a separate or joint decision. Id. This power or discretion to consolidate is subject to due process requirements. Matter of Taerghodsi, supra ("[I]t is within the power of the immigration judge to consolidate proceedings, if such consolidation does not serve to deny the respondent the right to fully and clearly litigate his claims."). Thanks to Sheila Stuhlman

REMOVAL PROCEEDINGS - DUE PROCESS - PROCEDURAL DUE PROCESS PROTECTIONS APPLY TO NONCITIZENS IN REMOVAL PROCEEDINGS
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (procedural due process protections apply to noncitizens in removal proceedings: "when facing deportation ... aliens are entitled to procedural due process, which provides an opportunity to be heard at a meaningful time and in a meaningful manner."), quoting United States v. Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004) (en banc).

TRAVEL DURING PROCEEDINGS
Some authority exists for allowing travel during removal proceedings. Former O.I. 235.1(k)(4); Letter, Cronin, Asst. Comm., Inspections, reported in 10 AILA Monthly Mailing 497-99 (July/Aug. 1991); Inspectors Field Manual at 13.1, 17.1; 8 C.F.R. 223.2(g).

IMMIGRATION PROCEEDINGS - DENIAL OF RIGHT TO COUNSEL
Ram v. Mukasey, 529 F.3d 1238 (9th Cir. Jun. 26, 2008) (finding waiver of counsel was not knowing or voluntary, given noncitizens obvious difficulties during proceedings despite strong arguments available to him).

REMOVAL PROCEEDINGS - COMPLAINTS AGAINST IMMIGRATION JUDGE
Procedure for filing complaints against an IJ http://www.justice.gov/eoir/sibpages/IJConduct/IJConduct.htm

Second Circuit

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - RIGHT TO IMPARTIAL IMMIGRATION JUDGE
Ali v. Mukasey, 529 F.3d 478 (2d Cir. Jun.18, 2008) (IJ's seeming bias against the petitioner and reliance on unfounded assumptions about homosexuals deprived the petitioner of his right to a fair hearing).

REMOVAL HEARINGS - IMMIGRATION COURT RULES
Dedji v. Mukasey, 525 F.3d 187 (2d Cir. May 8, 2008) (IJ has broad discretion to enforce or deviate from local rules where, for example a petition has demonstrated good cause for delay in filing and substantial prejudice would likely result from enforcement of deadline; reviewing court will apply abuse of discretion standard).

JUDICIAL REVIEW - REMOVAL PROCEEDINGS - DENIAL OF RIGHT TO COUNSEL OF CHOICE IS A VIOLATION OF DUE PROCESS
Waldron v. INS, 17 F.3d 511 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994) (Immigration Judge errs by disqualifying respondent's chosen counsel from representing the respondent, which is a per se violation of due process in the Second Circuit, regardless of whether prejudice is shown), citing Montilla v. INS, 926 F.2d 162 (2d Cir. 1991); see Matter of Santos, 19 I. & N. Dec. 103 (BIA 1984); Reno v. Flores, 507 U.S. 292, 306 (1993) (Fifth Amendment entitles noncitizen to due process of law in deportation proceedings).

Third Circuit

REMOVAL PROCEEDINGS " RIGHT TO IMPARTIAL JUDGE
Abulashvili v. Attorney General of the US, ___ F.3d ___, 2011 WL 5529827 (3d Cir. Nov. 15, 2011) (Immigration Judge violated petitioners' due process rights by completely taking over cross-examination from government's counsel, and thereby ceased functioning as a neutral arbiter).

JUDICIAL REVIEW - CONTINUANCES - DENIAL OF CONTINUANCE SIMPLY IN ORDER TO MEET CASE-COMPLETION GOALS IS AN ABUSE OF DISCRETION
Hasmi v. Mukasey, __ F.3d __ (3d Cir. Jul. 7, 2008) ("Petitioner Ajmal Hussain Shah Hashmis removal proceedings were adjourned on multiple occasions while he awaited adjudication of his pending I-130 application (a claim for residency based on his marriage to a United States citizen). After eighteen months had elapsed, the Immigration Judge (IJ) denied a further continuance - despite the governments consent - because the case had been pending far longer than the eight-month period suggested by the case-completion goals set by the Department of Justice (DOJ) for this type of case. In our view, the IJs denial of a motion for a continuance based on case- completion goals rather than on the facts and circumstances of Hashmis case was arbitrary and an abuse of discretion.").

REMOVAL PROCEEDINGS - ADMINISTRATIVE CLOSURE
Arca-Pineda v. Att'y Gen., 527 F.3d 101 (3d Cir. May 28, 2008) (continuous physical presence clock did not begin to run again after an administrative closure; administrative closure is not a termination proceedings; it only removes the case from the IJs calendar).

Fourth Circuit

REMOVAL PROCEEDINGS " VISA WAIVER PROGRAM
Nardea v. Sessions, 876 F.3d 675 (4th Cir. Nov. 29, 2017) (although DHS failed to produce evidence that noncitizen signed the I-94W form agreeing to waive rights under the Visa Waiver Program, the documents produced were sufficient to establish that noncitizen had waived his right to a fair hearing when threatened with deportation).

REMOVAL PROCEEDINGS " VISA WAIVER PROGRAM
Nardea v. Sessions, 876 F.3d 675 (4th Cir. Nov. 29, 2017) (although DHS failed to produce evidence that noncitizen signed the I-94W form agreeing to waive rights under the Visa Waiver Program, the documents produced were sufficient to establish that noncitizen had waived his right to a fair hearing when threatened with deportation).

OVERVIEW - IMMIGRATION COURTS - CRITICISM
Zhu v. Mukasey, 547 F.3d 504 (4th Cir. Nov. 25, 2008) (brief overview of some of the criticism of the immigration courts by federal judges and academics).

Fifth Circuit

REMOVAL PROCEEDINGS - ADMINISTRATIVE CLOSURE
Cantu-Delgadillo v. Holder, 584 F.3d 682 (5th Cir. Oct. 01, 2009) (Immigration Judge cannot administratively close case if either party opposes), following Matter of Guiterrez-Lopez, 21 I. & N. Dec. 479 (BIA 1996).

JUDICIAL REVIEW - CONTINUANCE
Masih v. Mukasey, ___ F.3d ___, 2008 WL 2747462 (5th Cir. Jul. 16, 2008) (IJ and BIA abused discretion by denying motion for continuance where noncitizen eligible for adjustment of status was unable to adjust only because visas had become unavailable after application; BIA and IJ failed to consider OI 245.4(a)(6) in their rulings despite the regulation's applicability; and the BIA ignored precedent set in Matter of Ho).

Sixth Circuit

REMOVAL PROCEEDINGS " RECUSAL OF IMMIGRATION JUDGE
Shewchun v. Holder, 658 F.3d 557 (6th Cir. Sept. 8, 2011) (former ICE Chief Counsel only needs to recuse herself where she took part in the particular case before her, based on intepretation of 28 U.S.C. 455(a), requiring recusal by federal judges in any proceeding in which his impartiality might reasonably be questioned.); see Petrov v. Gonzales, 464 F.3d 800, 803 (7th Cir. 2006).

REMOVAL PROCEEDINGS - RECUSAL
Hassan v. Holder, __ F.3d __ (6th Cir. May 11, 2010) (no violation of due process for IJ to decline to recuse herself where she was a former DHS officer in the office dealing with respondents petition, and had a close working relationship with the officer in charge of the case who testified in favor of removal).

Seventh Circuit

REMOVAL PROCEEDINGS - IMPARTIAL JUDGE
Casthilho de Oliveira v. Holder, 564 F.3d 892 (7th Cir. May 8, 2009) (noncitizen was denied meaningful opportunity to be heard by neutral IJ; IJ behavior toward asylum applicant and expert witness showed bias).

IMMIGRATION PROCEEDINGS
Flores Torres v. Mukasey, 551 F.3d 616 (7th Cir. Dec. 23, 2008) ("[T]he IJ assumed the role of inquisitor, incessantly interrupting Torres while he tried to assimilate his responses. The IJs questioning was so pervasive that it was often difficult to determine who was representing the federal government with more fervor the IJ or the governments attorney. At times the IJs comments crossed the line.")

REMOVAL PROCEEDINGS - VISA WAIVER PROGRAM - REMOVAL PROCEEDINGS - WAIVER OF RIGHT TO CONTEST REMOVAL MUST BE VOLUNTARY
Bayo v. Chertoff, 535 F.3d 749 (7th Cir. Aug. 1, 2008) (waiver of right to removal proceedings, under Visa Waiver Program unconstitutional unless waiver was knowingly and voluntarily entered). HYPERLINK "http://caselaw.lp.findlaw.com/data2/circs/7th/071069p.pdf"

JUDICIAL REVIEW - PETITION FOR REVIEW -- DENIAL OF CONTINUANCE
Ceta v. Mukasey, ___ F.3d ___, 2008 WL 2854153 (7th Cir. Jul. 25, 2008) ("The immigration court's lack of jurisdiction to entertain adjustment applications was not a rational basis for denying Mr. Ceta's continuance request but merely a reiteration of the amended regulation.").

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - RIGHT TO IMPARTIAL IMMIGRATION JUDGE - REASSIGNMENT TO DIFFERENT JUDGE ON REMAND
Bosede v. Mukasey, 512 F.3d 946, ___ (7th Cir. Jan. 14, 2008) ("And to avoid repetition of the same mistakes the third time around, we urge the agency to refer this case to a different immigration judge."), citing Niam v. Ashcroft, 354 F.3d 652, 660 (7th Cir. 2004).

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS RIGHTS OF NONCITIZENS
Bosede v. Mukasey, 512 F.3d 946 (7th Cir. Jan. 14, 2008) (all noncitizens, including people without documentation, enjoy due process rights in removal proceedings: "Aliens in the United States, no matter their immigration status, are entitled to due process. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Kerciku v. I.N.S., 314 F.3d 913, 917 (7th Cir. 2003). Thus, they are protected against arbitrary government action that "shocks the conscience" and cannot be justified by any government interest. See County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998); United States v. Salerno, 481 U.S. 739, 746 (1987); Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1013 (7th Cir. 2002). This right, which extends to removal hearings, see Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir. 2004), and has been codified, see 8 U.S.C. 1229a(b)(4)(B); 8 C.F.R. 1240.1(c), guarantees a proceeding where the alien has a " meaningful opportunity to be heard. " Boci v. Gonzales, 473 F.3d 762, 768 (7th Cir. 2007) (quoting Kerciku, 314 F.3d at 917).").

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - DUE PROCESS IS VIOLATED WHERE IMMIGRATION JUDGE DECIDES CASE FIRST AND HEARS CASE AFTERWARDS
Bosede v. Mukasey, 512 F.3d 946 (7th Cir. January 14, 2008) (immigration judge violates due process by making up mind before conclusion of removal hearing), citing Kerciku v. INS, 314 F.3d 913, 918 (7th Cir. 2003) (finding violation of procedural due process where IJ first made up his mind about noncitizen's claims and refused to listen to testimony).

JUDICIAL REVIEW - PETITION FOR REVIEW - DUE PROCESS - STANDARD OF REVIEW
Bosede v. Mukasey, 512 F.3d 946, ___ (7th Cir. January 14, 2008) ("since we cannot be confident that Bosedes hearing comported with statutory requirements or met minimum standards of due process, Bosede is entitled to a new one."), citing Floroiu v. Gonzales, 481 F.3d 970, 976 (7th Cir. 2007).

Eighth Circuit

REMOVAL PROCEEDINGS - COUNSEL - NO RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN REMOVAL PROCEEDINGS
Rafiyev v. Mukasey, 536 F.3d 853 (8th Cir. Aug. 5, 2008) (there is no constitutional right under the Fifth Amendment to effective assistance of counsel in a removal proceeding).

Ninth Circuit

REMOVAL PROCEEDING " INEFFECTIVE ASSISTANCE
Correa-Rivera v. Holder, 706 F.3d 1128 (9th Cir. 2013) (Lozada doesn't require that a petitioner present probative evidence of having submitted a complaint to the bar, much less correspondence from the bar acknowledging such a complaint. Lozada suggests only that the motion should reflect whether such a complaint has been filed.).

REMOVAL PROCEEDING " INEFFECTIVE ASSISTANCE
Correa-Rivera v. Holder, 706 F.3ed 1128 ____ (9th Cir. 2013) (Lozada doesn't require that a petitioner present probative evidence of having submitted a complaint to the bar, much less correspondence from the bar acknowledging such a complaint. Lozada suggests only that the motion should reflect whether such a complaint has been filed.).

OVERVIEW " REMOVAL PROCEEDINGS " RIGHT TO COUNSEL
Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. Sept. 18, 2012) (respondents right to counsel, under 8 U.S.C. 1362, violated where Immigration Judge allowed merits hearing to continue in absence of counsel where counsels license to practice law had been suspended).

OVERVIEW - REMOVAL PROCEEDINGS - ADMINISTRATIVE CLOSURE
Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir. Jan. 2009) ("Administrative closure is a procedure by which an IJ or the BIA removes a case from its docket as a matter of administrative convenience. In re Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996) (quoting In re Amico, 19 I. & N. Dec. 652, 654 n. 1 (BIA 1988)). This procedure is not described in the INA or federal regulations, but the BIA has stated that it will not administratively close a case if closure is opposed by either of the parties. Id."; court lacks jurisdiction to review IJs decision to review denial of request for administrative closure to allow respondents visa petition to become current).

DETENTION - HABEAS CHALLENGING DETENTION DOES NOT AFFECT FINALITY OF IMMIGRATION PROCEEDINGS
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (habeas petitions challenging detention do prevent an IJ decision from becoming final; noncitizen was detained under INA 241, not 236, while habeas was pending because immigration proceedings had become final despite habeas petition).

IMMIGRATION PROCEEDINGS - DENIAL OF RIGHT TO COUNSEL
Ram v. Mukasey, 529 F.3d 1238 (9th Cir. Jun. 26, 2008) (finding waiver of counsel was not knowing or voluntary, given noncitizens obvious difficulties during proceedings despite strong arguments available to him).

REMOVAL PROCEEDINGS - VISA WAIVER PROGRAM OVERSTAYS
Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Mar. 31, 2008) (persons who entered the United States under the Visa Waiver Program, who marry and apply for Adjustment of Status after their 90 days have elapsed, cannot obtain removal proceedings before being removed, and are ineligible to adjust status), distinguishing Freeman v. Gonzales, 1444 F.3d 1031 (9th Cir. 2006).

This may not prohibit AOS by all out-of-status VWP entrants. It might only apply to those that ICE finds and decides to deport. The last two paragraphs of the decision, discussing this, appear to be dictum, because they go beyond the facts presented, which involve a VWP overstay whom ICE found and wanted to deport, and who then raised a defense to removal in the form of AOS. The "no contest" clause in INA 217(b) applies when DHS seeks to remove a VWP violator. If DHS is not seeking removal, then a VWP overstay can adjust status under INA 245(c) as an immediate relative. Under Momeni, if AOS is denied, the person will then be removed instead of put in proceedings. Thanks to Debbie Smith.

REMOVAL PROCEEDINGS - ATTORNEY RENDERS INEFFECTIVE ASSISTANCE OF COUNSEL BY COERCING NONCITIZEN'S CONCESSION BY THREATENING TO WITHDRAW FROM THE REPRESENTATION
Nehad v. Mukasey, ___ F.3d ___, 2008 WL 2925201 (9th Cir. 2008) (respondent's counsel coerced concession of case by announcing that he would withdraw if petitioner did not accept an offer of voluntary departure, which impinged on petitioner's authority to decide whether, and on what terms, to concede his case, in violation of due process).

OVERVIEW - IJ - RIGHT TO COUNSEL
Hernandez-Gil v. Gonzales, 476 F.3d 803 (9th Cir. Feb. 16, 2007) ("When an immigrant has engaged counsel and the IJ is aware of the representation, if counsel fails to appear, the IJ must take reasonable steps to ensure that the immigrants statutory right to counsel is honored. Here, denying the request for a continuance and conducting the merits hearing without taking reasonable steps to permit counsel to participate, denied Hernandez-Gil his statutory right to counsel.")

REMOVAL PROCEEDINGS - RIGHT TO COUNSEL - RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
Singh v. Gonzales, 499 F.3d 969, 972 n.2 (9th Cir. 2007) ("The BIA acknowledges and adjudicates IAC claims in immigration proceedings. We note that although alien petitioners do not have a Sixth Amendment right to counsel, precedent in this circuit permits IAC claims as a due process challenge under the Fifth Amendment. See Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir.1999). This claim is not coextensive with a Sixth Amendment challenge and, as our cases reflect, the contours of the claim depend on the factual circumstances."); Magallanes Damien v. INS, 7 83 F.2d 931, 933 (9th Cir. 1986); Matter of Assaad, 23 I & N Dec. 553 (BIA 2003) (foreign nationals have statutory, regulatory, and due process right to effective assistance of counsel); but see Magala v. Gonzales, 434 F.3d 523, 526 (7th Cir. 2005).

Other

BIBLIOGRAPHY " ROLE OF IMMIGRATION JUDGES
BIBLIOGRAPHY ROLE OF IMMIGRATION JUDGES Denise Noonan Slavin & Dana Leigh Marks, Conflicting Roles Of Immigration Judges: Do You Want Your Case Heard By A "Government Attorney" Or By A "Judge"?, 16 BENDERS IMM. BULLETIN 1785 (Nov. 15, 2011). http://xa.yimg.com/kq/groups/3815052/2035291105/name/Conflicting%20Roles%20of%20Immigration%20Judges%2C%2016%20Bender%27s%20Imm

BIBILIOGRAPHY " REMOVAL PROCEEDINGS " RIGHT TO COUNSEL
Stephen H. Legomsky, Transporting Padilla to Deportation Proceedings: A Due Process Right to the Effective Assistance of Counsel, St. Louis University Public Law Review, 2012 (Oct. 4, 2011). Abstract: The Supreme Courts landmark 2010 decision in Padilla v. Kentucky interpreted the Sixth Amendment as requiring criminal defense counsel to advise a non-citizen defendant concerning the deportation consequences of a guilty plea. To reach its decision, the Court in Padilla had to revisit the longstanding judicial dogma that deportation is purely a collateral consequence, distinguishable from the direct consequence of a criminal sentence. The Court saw deportation as a kind of hybrid, a different animal that challenged the traditional dichotomy. Its reasoning had nothing to do with the inherent severity of a criminal conviction, and everything to do with the nature and severity of deportation. At the same time that Padilla continues to inspire rapid-fire changes in the duties of criminal defense counsel, similar drama has been unfolding in the other immigration arena in which the effectiveness of counsel is commonly contested - counsels performance in the deportation proceedings themselves. Attorney General Mukaseys 2009 decision in Matter of Compean and Attorney General Holders vacating of that decision later the same year have left uncertainty as to whether there is a constitutional right to the effective assistance of counsel in deportation proceedings. This article links these two lines of cases. It argues that the logic of Padilla, quite apart from its sweeping implications for the constitutional duties of criminal defense counsel, also reinforces the case for a constitutional right to the effective assistance of counsel in the deportation proceedings themselves. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945831

STATISTICS " IMMIGRATION COURT DECISION TIMES
During the first six months of FY 2011, decision times in immigration court continued to climb, according to timely government enforcement data obtained by the Transactional Records Access Clearinghouse (TRAC). The increasingly long average wait reached 302 days -- up 7.5 percent in the last six months, and almost 30 percent higher than the average disposition time during FY 2009. Average times varied, depending upon the nature of the court's decision, from 141 days for removal orders up to 714 days for grants of relief. http://trac.syr.edu/immigration/reports/257/

JUDICIAL REVIEW - CODES OF CONDUCT FOR IJ AND BIA
"The Executive Office for Immigration Review (EOIR) is proposing newly formulated Codes of Conduct for the immigration judges of the Office of the Chief Immigration Judge and for the Board members of the Board of Immigration Appeals. EOIR is seeking public comment on the codes before final publication. ... Comments may be submitted not later than July 30, 2007." FR, June 28, 2007. http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-3174.pdf

IMMIGRATION COURT PRACTICE MANUAL
http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm
http://drop.io/ImmigrationCourtPracticeManual
http://bibdaily.com/pdfs/ICPMfull.pdf

REMOVAL PROCEEDINGS - RIGHT TO IMPARTIAL IMMIGRATION JUDGE - JUDGE IMPROPERLY ACTING AS PROSECUTOR - DUE PROCESS
Immigration counsel can argue that reversal of a removal order is required when an immigration judge plays an improper prosecutorial role in the proceedings. When the judge abandons his role as an unbiased arbiter of fact and law, and becomes a prosecutor, the court contravenes its responsibilities as a neutral fact finder. It is well settled that a judge must remain neutral. Marshall v. Jerrico, Inc., 446 U.S. 238 (1980). See also Schweiker v. McClure, 456 U.S. 188 (1982) (hearing officers serving in a quasi-judicial capacity must meet the due process demand of impartiality). The Immigration Courts decision should be reversed if the record clearly demonstrates that the judge played a prosecutorial role outside the scope of the court's responsibility as an unbiased trier of fact and law. The judge clearly acts as an aggressive prosecutor it s/he attempts to establish that the Respondent was guilty of a crime. The Immigration Judge further exhibits a prosecutorial tendency by examining respondent as if the court were a tax official suspecting violations of the Internal Revenue laws. The judge also demonstrates bias by subjecting respondent to "post-trial" examinations which merely reiterate the questioning previously conducted regarding the arrest, his educational background, his student loans and his tax returns. The Court of Appeals for the Ninth Circuit chastised an Immigration Judge who exhibited bias and prejudice during removal hearings by abandoning her neutrality in violation of due process. Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003). The Court reasoned that "very early in the hearing, the IJ took over direct examination [and] the IJ noticeably became aggressive" (Id. at 1007.) The Immigration Judge may rely on Yang v. McElroy, 277 F. 3d 158 (2d Cir. 2002), to justify his role as fact-finder, but there are clearly limitations on the manner in which he may appropriately develop the record, especially when the respondent is represented by counsel. (See United States v. Copeland, 376 F.3d 61, 71 (2d Cir. 2004) (explaining that an Immigration Judge has the same duty to develop the record as the administrative law judge in a social security case, especially when the litigant is pro se and concluding the removal system "relies on [the Immigration Judge] to explain the law accurately to pro se aliens"); Secaida-Rosales, supra, at 306, citing Qiu v INS, supra, at n.17 (recognizing the court has not distinctly defined the Immigration Judges role in developing in the record when an alien is represented by counsel). Stated succinctly by the Seventh Circuit, "discretion is bounded by the applicants right to receive a fair hearing." (Podio v. INS, 153 F.3d 506, 509 (1998).) In Podio, the judge frequently interrupted and took over the questioning of the respondent. The judge in this case oversteps his bounds as did the judges in Reyes-Melendez and Podio. The Second Circuit has considered the limitations on a judges power to control deportation proceedings by ruling that a respondent had not effectively waived his right to counsel, allowing the judge to go forward on the merits of an application for relief, even if the respondent had been given a single two week continuance by the Immigration Court to locate an attorney. (Montilla v. INS, 926 F.2d 162 (2nd Cir. 1991).) Thanks to Sophie Feal.

REMOVAL PROCEEDINGS - RIGHT TO IMPARTIAL JUDGE - DOJ INSPECTOR GENERAL REPORT ON ILLEGAL HIRING OF IMMIGRATION JUDGES
The Attorney General's illegal politicizing of the process of hiring immigration judges throws the impartiality of those judges into question, and raises the appearance of partiality that alone may be sufficient to require disqualification of those judges. http://www.aila.org/Content/default.aspx?docid=26074

REMOVAL PROCEEDINGS - RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL - REGULATIONS
Although 8 C.F.R. 1208.4(a)(5)(iii) mirrors Lozada, one could argue that it codifies its formal requirements for corroboration and bar regulation purposes, but does not rely on Lozada's jurisprudential rationale for existence. Extraordinary circumstances exceptions need only be "directly related" to the delay in filing. A lawyer's incompetence need not attach to any right to representation to be "directly related" to the delay in failure to file. The other exceptions are recognized as "directly related" to delay but are not tied to constitutional or statutory rights (no right to good health in the U.S. or against tragic family deaths). Thanks to Eric Berndt.

REMOVAL PROCEEDINGS - DUE PROCESS - REMOVAL DOES RESULT IN A LOSS OF LIBERTY
Deportation does result in a loss of liberty, as that concept has been defined in due process cases, particularly by the Supreme Court. See, e.g., Jones v. Cunningham, 371 U.S. 236, 240 (1963). See also Landon v. Plasencia, 459 U.S. 21,32-33 (1982).

The Supreme Court stated:

This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); Nishimura Ekiu v. United States, 142 U.S. 651, 659-660, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892). Our recent decisions confirm that view. See, e.g., Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977); Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). As we explained in Johnson v. Eisentrager, 339 U.S. 763, 770, 70 S.Ct. 936, 939, 94 L.Ed. 1255 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation, see, e.g., United States ex rel. Tisi v. Tod, 264 U.S. 131, 133, 134, 44 S.Ct. 260, 261, 68 L.Ed. 590 (1924); Low Wah Suey v. Backus, 225 U.S. 460, 468, 32 S.Ct. 734, 735, 56 L.Ed. 1165 (1912) (hearing may be conclusive "when fairly conducted"); see also Kwong Hai Chew, 344 U.S., at 598 n. 8, 73 S.Ct., at 478 n. 8, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation. See, e.g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed. 560 (1927); The Japanese Immigrant Case, 189 U.S. 86, 100-101, 23 S.Ct. 611, 614, 47 L.Ed. 721 (1903); see also Wong Yang Sung v. McGrath, 339 U.S. 33, 49-50, 70 S.Ct. 445, 453-54, 94 L.Ed. 616 (1950); Bridges v. Wixon, 326 U.S. 135, 153-154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 (1945).

In addition, there are arguments that such things as the right to participate in family relationships, and to be employed at the common occupations of the community, are "liberty" interests, and are therefore protected by the Due Process clause. Thanks to Lisa Brodyaga.

OVERVIEW - REMOVAL PROCEEDINGS - RIGHT TO COUNSEL
AILF Summary of Matter of Compean: http://www.ailf.org/lac/chdocs/bia-SumCompean.pdf

REMOVAL PROCEEDINGS - RIGHT TO COUNSEL - DUE PROCESS -- RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IS GROUNDED IN DUE PROCESS
The courts of appeals continue to affirm that noncitizens have a constitutional right under the Fifth Amendment Due Process Clause to fundamentally fair removal proceedings, and that incompetent counsel may deprive people of that right. Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir. 2007) (ineffective assistance of counsel in a removal proceeding may constitute a denial of due process if, and to the extent that, the proceeding is thereby rendered fundamentally unfair); Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) (the Fifth Amendment requires that deportation proceedings comport with due process; due process concerns may arise when retained counsel provides immigration representation that falls so short of professional duties as to impinge upon the fundamental fairness of the hearing); Fadiga v. Atty Gen., 488 F.3d 142, 155 (3d Cir. 2007) (a claim of ineffective assistance of counsel in removal proceedings is cognizable under the Fifth Amendment as a violation of the guarantee of due process); Sako v. Gonzales, 434 F.3d 857, 863-64 (6th Cir. 2006) (to prove he has suffered a violation of due process, the petitioner needs to establish that ineffective assistance of counsel prejudiced him or denied him fundamental fairness); Jezierski v. Mukasey, 543 F.3d 886, 890 (7th Cir. 2008), petition for cert. filed, 08-656 (Nov. 17, 2008) ("The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the [noncitizen] to proceed without the assistance of a competent lawyer would deny him due process of law ...."); Nehad v. Mukasey, 535 F.3d 962, 973 (9th Cir. 2008) (an attorneys deficient performance and the prejudice resulting from it can result in a violation of the Fifth Amendment right to due process); Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002) (" a petitioner like Osei can state a Fifth Amendment violation if he proves that retained counsel was ineffective and, as a result, the petitioner was denied a fundamentally fair proceeding."); Dakane v. U.S. Attorney General, 399 F.3d 1269, 1273 (11th Cir. 2004) (it is well established in this Circuit that a noncitizen in civil deportation proceedings has the constitutional right under the Fifth Amendment Due Process Clause to a fundamentally fair hearing, including effective assistance of counsel.) (emphasis in original); Ouyoung v. Mukasey, 07-3867, 2009 U.S. App. LEXIS 224, *2-3 n.2 (2d Cir. Jan. 8, 2009) (unpublished) ("Contrary to the governments argument, it is well-established that claims of ineffective assistance of counsel raised to the BIA in motions to reopen are rooted in the Fifth Amendment Due Process Clause, and in the statutory right to counsel."); Al Roumy v. Mukasey, 07-3328, 2008 U.S. App. LEXIS 18472, *18 n.3 (6th Cir. Aug. 27, 2008) (unpublished) (noting that the government argued that there is no right to effective assistance of counsel and rejecting such position as conflicting with controlling precedent); contra, Afanwi v. Mukasey, 526 F.3d 788, 798-99 (4th Cir. 2008), petition for cert. filed, 08-906 (Jan. 16, 2009)(there is no constitutional right to effective assistance of counsel in removal proceedings); Rafiyev v. Mukasey, 536 F.3d 853, 861 (8th Cir. 2008); cf. Stroe v. INS, 256 F.3d 498, 501 (7th Cir. 2001) ("the question whether there is ever a constitutional right to counsel in immigration cases is ripe for reconsideration"); Jezierski v. Mukasey, 543 F.3d 886, 890 (7th Cir. 2008), petition for cert. filed, 08-656 (Nov. 17, 2008) (deficient performance of counsel might constitute a violation of the Fifth Amendment: "The complexity of the issues, or perhaps other conditions, in a particular removal proceeding might be so great that forcing the alien to proceed without the assistance of a competent lawyer would deny him due process of law.").

REMOVAL PROCEEDINGS - RIGHT TO COUNSEL - STATUTORY RIGHT TO COUNSEL IMPLIES RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
INA 292, 8 U.S.C. 1362 (statutory right to counsel in removal proceedings); INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); Sanchez v. Keisler, 505 F.3d 641, 649 (7th Cir. 2007) (the attorneys performance was so deficient that Sanchez did not have the fair hearing to which the immigration statutes entitle her); Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (" aliens in deportation proceedings have a statutory right to be represented by counsel at their own expense."); Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) ("[A]liens have a statutory right to counsel, see 8 U.S.C. 1362 . Implicit in the right to counsel is the requirement that the assistance rendered not be ineffective.").

REMOVAL PROCEEDINGS - RIGHT TO ID DOCUMENTS
Torres Memo dated 07/14/2006, last paragraph on the second page, indicates that "non-detained LPRs in removal proceedings are legally entitled to basic forms of identification such as driver's licenses and social security cards ..." Prior paragraph states temp I-551 card to be given. http://www.aila.org/Content/default.aspx?docid=23514 Thanks to Suresh Gulaya

BIBLIO - OIL NEWSLETTER
Department of Justice Office of Immigration Litigation (OIL) regularly issues newsletters offering their employees perspectives on immigration issues in the federal courts and the immigration courts. http://www.justice.gov/civil/oil/ImmigrationBulletin.htm

BIBLIO - OIL NEWSLETTER - EOIR NEWSLETTER
Department of Justice Executive Office for Immigration Review (EOIR) regularly issues newsletters offering their employees perspectives on immigration issues in the federal courts and the immigration courts. EOIRs Immigration Law Advisor at http://www.justice.gov/eoir/vll/ILA-Newsleter/lib_ila.html.

OVERVIEW " PROSECUTORIAL DISCRETION
Immigration Policy Center of the American Immigration Council, Understanding Prosecutorial Discretion in Immigration Law (IPC Fact Check, May, 2011) http://www.immigrationpolicy.org/sites/default/files/docs/Prosecutorial_Discretion_QA.pdf

BIBLIO " CRIMINAL DEFENSE OF IMMIGRANTS
Eagly, Prosecuting Immigration, 104 NORTHWESTERN U. L. REV. 1281 (2010).

REMOVAL PROCEEDINGS " DEPORTATION " DEPORTATION IS NOT PUNISHMENT
Ting v. United States, 149 U.S. 698, 730 (1893) (stating the deportation proceeding . . . is in no proper sense a trial and sentence for a crime or offence. . . . It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon which his residency depends); see also, Mahler v. Eby, 264 U.S. 32, 39 (1924); Bugajewitz v. Adams, 228 U.S. 585, 591 (1913). Contra Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts about Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1890 passim (2000). Note: The primary effect of ruling that deportation (removal) is not punishment is that the criminal procedure provisions of the Constitution are therefore inapplicable in immigration proceedings. See Robert Pauw, A New Look at Deportation as Punishment: Why at Least Some of the Constitutions Criminal Procedure Provisions Must Apply, 52 ADMIN. L. REV. 305, 309"10 (2000) (noting that by determining that immigration cases are not punishment, the rights of trial by jury, assistance of counsel, the exclusionary principle from the freedom from unreasonable search and seizure, the prohibition against cruel and unusual punishment, etc. do not apply).

REMOVAL PROCEEDINGS " MENTAL COMPETENCY " RESOURCES
On Immigration Advocates Network: - A practice advisory from the American Immigration Council's Legal Action Center and the University of Houston Law Center Immigration Clinic, which provides a detailed analysis of Matter of M-A-M and offers advice on how to address issues that may arise, at http://www.immigrationadvocates.org/link.cfm?18685. - ICE maintains medical records on detainees, including mental health records, that may be used in immigration court proceedings. This ICE document describes the medical treatment provided, type of records maintained, privacy rules, and the record keeping systems. http://www.immigrationadvocates.org/link.cfm?18689 - A practice manual from the Capital Area Immigration Rights (CAIR) Coalition, which provides strategies for attorneys representing clients with mental disabilities, particularly in immigration courts in Washington, DC, Virginia and Maryland, at http://www.immigrationadvocates.org/link.cfm?18687 [Note that this resource pre-dates the BIA's Matter of M-A-M decision.] - American Immigration Council The American Immigration Council's Legal Action Center provides summaries of recent and ongoing cases regarding the rights of noncitizens with mental disabilities at http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/immigrants-mental-disabilities-removal-proceedings. - Capital Area Immigrant Rights Coalition The Capital Area Immigrant Rights (CAIR) Coalition website has resources for pro bono counsel representing individuals with mental illness/competency issues, including unpublished decisions, sample motions and briefs, at http://www.caircoalition.org/pro-bono-resources/.

OVERVIEW " RIGHT TO COUNSEL
Accessing Justice: The Availability and Adequacy of Counsel in Immigration Proceedings. A report from the New York Immigrant Representation Study that compares case outcomes based on key factors such as whether the immigrant was detained or non-detained, had representation, and whether or not the representation was considered adequate. http://www.aila.org/content/default.aspx?docid=37973

REMOVAL PROCEEDINGS " PROSECUTORIAL DISCRETION
Julia Preston, In Deportation Policy Test, 1 in 6 Offered Reprieve, N.Y. TIMES (Jan. 19, 2012) (16 percent of all those facing deportation in Denver " 1,301 immigrants " will receive offers from prosecutors to close their cases after they pass criminal background checks. Department of Homeland Security officials plan to extend the review in coming months to all of about 300,000 cases before the countrys immigration courts.). Nationwide, about 39,000 immigrants nationwide could see their deportations suspended.

REMOVAL PROCEEDINGS " COMPETENCE TO STAND TRIAL
http://www.justice.gov/eoir/vll/benchbook/tools/MHI/index.html