The first hearing before an immigration judge will generally be a Master Calendar hearing, at which the Immigration Judge ensures that the respondent has received and understands the NTA, determines whether an interpreter is necessary,[250] and whether the respondent has or wishes time to find an attorney, and sets briefing schedules. 

 

The Immigration Judge may also request that the respondent admit or deny the allegations in the NTA and ask whether the noncitizen will concede or contest the charges of removal.[251]  There will often be more than one master calendar hearing in any given case.[252]  During a master calendar hearing there may be more than one respondent in the court, and the judge may address all respondents as a group.  This practice is more common in DHS detention centers and can lead to due process violations that the more careful federal courts are more willing to find.

 

Immigration hearings may be conducted by teleconference or videoconference.[253]  The presence of the respondent may be waived if counsel is present.[254]  The proceedings are recorded.[255]  A respondent may stipulate to an order of removal, rather than participate in removal proceedings.[256]

 

A respondent may be ordered deported during a master calendar hearing.  Generally, however, after one or more master calendar hearings, and after the briefs and applications for relief have been filed with the court, an Individual or merits hearing will be scheduled to allow the parties to present witnesses and evidence in the case.[257]

 

The immigration judge may then issue an oral decision from the bench, schedule a later hearing in which to issue an oral decision, or reserve the decision to be issued in writing at some later date or by mail.[258]

 

A noncitizen respondent may be ordered removed in absentia if the DHS establishes by “clear, unequivocal, and convincing evidence” that the noncitizen is removable and that written notice of the time and place of the proceedings and consequences of failure to appear were provided to the respondent or respondent’s counsel of record.[259]  In many cases, after a respondent fails to appear, the case will be set for another date where the Immigration Judge will issue final decisions in numerous in absentia cases at a single sitting.  A respondent ordered removed in absentia is ineligible for most forms of relief for a period of 10 years.[260]  The respondent can file a motion to reopen proceedings upon showing lack of notice of the hearing or exceptional circumstances for failure to appear.[261]

 

[250] 8 C.F.R. § 1003.22.  See Chapter 4, supra.

[251] 8 C.F.R. § 1003.21.

[252] The immigration judge may grant a motion for continuance for good cause shown.  8 C.F.R. § 1003.29.

[253] 8 C.F.R. § 1003.25(c).

[254] 8 C.F.R. § 1003.25(a).

[255] 8 C.F.R. § 1003.36.

[256] 8 C.F.R. § 1003.25(b).

[257] See 8 C.F.R. § § 1003.34-1003.35.

[258] 8 C.F.R. § 1003.37.

[259] 8 C.F.R. § § 1003.27(c), (d).

[260] INA § 240(b)(7), 8 U.S.C. § 1229a(b)(7).

[261] 8 C.F.R. § 1003.23(b)(4)(ii).   See, e.g., Borges v. Gonzales, 402 F.3d 398 (3d Cir. March 30, 2005) (180-day time limit for filing a motion to reopen removal proceeding following an order entered in absentia is in nature of statute of limitations, so as to be subject to equitable tolling).

 

BIA

REMOVAL PROCEEDINGS " IMMIGRATION JUDGE " LACK OF AUTHORITY TO TERMINATE REMOVAL PROCEEDINGS TO ALLOW ARRIVING ALIEN TO PRESENT AFFIRMATIVE ASYLUM CLAIM
Matter of Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017) (Immigration Judge lacks authority to terminate removal proceedings to give an arriving alien an opportunity to present an affirmative asylum claim to DHS).

REMOVAL PROCEEDINGS " INDIVIDUAL HEARING " HOSTILE IMMIGRATION JUDGE
Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (conduct by Immigration Judge that is bullying or hostile is inappropriate, and may result in remand to different IJ).

REMOVAL PROCEEDINGS " CONTINUANCE " TO AWAIT ADJUDICATION OF U VISA PETITION " STANDARD OF REVIEW
Matter of Sanchez Sosa, 25 I. & N. Dec. 807 (BIA Jun. 7, 2012) (in determining whether good cause exists to continue removal proceedings to await the adjudication of an aliens pending U nonimmigrant visa petition, an Immigration Judge should consider (1) the response of the Department of Homeland Security to the aliens motion to continue; (2) whether the underlying visa petition is prima facie approvable; and (3) the reason for the continuance and other procedural factors; an alien who has filed a prima facie approvable petition for a U visa with the United States Citizenship and Immigration Services will ordinarily warrant a favorable exercise of discretion for a continuance for a reasonable period of time).

First Circuit

MOTION TO CONTINUE " PROSPECTIVE CHANGE IN THE LAW INSUFFICENT
Sheikh v. Holder, 696 F.3d 147 (1st Cir. 2012) (the prospect of comprehensive immigration reform was a speculative event that was insufficient to justify a continuance).

IMMIGRATION PROCEEDINGS - DHS FAILURE TO PROPERLY ADDRESS BRIEFING SCHEDULE IS GROUNDS FOR REVERSAL
Aponte v. Holder, 610 F.3d 1 (1st Cir. Jun. 18, 2010) (BIA denial of motion to reopen reversed where BIA failed to notify counsel of the briefing schedule by mailing the notice to an incomplete address; BIA cannot presume delivery from lack of the mailing being returned as undeliverable).

REMOVAL PROCEEDINGS - IMPARTIAL JUDGE - PROSECUTORIAL QUESTIONING OF RESPONDENT
Cuko v. Mukasey, 522 F.3d 32 (1st Cir. Mar. 31, 2008) (petition for review granted because IJ improperly assumed role of a government attorney by engaging in "prosecutorial questioning").

Second Circuit

JUDICIAL REVIEW " PETITION FOR REVIEW " FAILURE ADEQUATELY TO EXPLAIN REASONING OR TO CONSIDER RECORD EVIDENCE
Pan v. Holder, ___ F.3d ___, 2015 WL 304199 (2d Cir. Jan. 26, 2015) (granting petition for review of Immigration Judges denial of applications for asylum, withholding of removal, and relief pursuant to the Convention Against Torture, where the IJ and BIA failed to adequately explain why the significant violence petitioner suffered was insufficiently egregious to constitute persecution; and failed to consider record evidence, which tended to prove that the Kyrgyz police and unwilling or unable to protect petitioner from private persecutors).

IMMIGRATION PROCEEDINGS - CONTINUANCE
Elbahja v. Keisler, 505 F.3d 125 (2d Cir. Oct. 10, 2007) (IJ does not abuse discretion in declining to grant multiple continuances in order to permit adjudication of a removable noncitizen's pending labor certification).

Seventh Circuit

REMOVAL PROCEEDING - CONTINUANCE
Juarez v. Holder, __ F.3d __ (7th Cir. Mar. 12, 2010) (Immigration Judge did not abuse discretion in denying continuance where petitioners failed to timely file applications for relief and biometrics and did not have good cause for delay).

OVERVIEW - CONTINUANCE
Malik v. Mukasey, 546 F.3d 890 (7th Cir. Oct. 23, 2008) (court lacked jurisdiction to review IJ decision that granting continuance would be futile).

Eighth Circuit

CONTINUANCE
Thimran v. Holder, 599 F.3d 841 (8th Cir. Mar. 25, 2010) (Immigration Judge did not abuse discretion in denying continuance where I-130 application had been denied by USCIS, and petitioner presented to grounds for relief).

Lower Courts of Eighth Circuit

REMOVAL PROCEEDINGS - MENTAL COMPETENCY
Mohamed v. Tebrake, 371 F.Supp.2d 1043 (D. Minn. 2005) (IJ must inquire as to respondents mental competency, or 8 CFR 1240.4 would be a nullity, and it was an abuse of discretion not to inquire where person was in a mental hospital and hearing was held via circuit television).

Ninth Circuit

REMOVAL PROCEEDINGS " VIDEO CONFERENCE HEARINGS
Vilchez v. Holder, 682 F3d 1195 (9th Cir. Jun. 19, 2012) (conducting hearing on alien's request for cancellation of removal by video-conference did not deprive him of due process).

Tenth Circuit

JUDICIAL REVIEW " CHOICE OF LAW WHERE IMMIGRATION JUDGE IS LOCATED IN DIFFERENT CIRCUIT THAN THE IMMIGRANT
Medina-Rosales v. Holder, ___ F.3d ___, ___, 2015 WL 756345 (10th Cir. Feb. 24, 2015) (where the immigrant and counsel are located in a circuit different from that in which the immigration judge conducts the hearing, the governing law is that of the circuit in which the immigration judge is located: The charging document establishes the hearing location, regardless of the location of the IJ and the holding of a video conference hearing.).

Other

REMOVAL PROCEEDINGS " IMMIGRANTS RIGHT TO BE INFORMED OF ELIGIBILITY FOR RELIEF
8 C.F.R. 1240.11(a)(2) ("The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing ....").

OVERVIEW - REMOVAL PROCEEDINGS - VIDEO HEARINGS
"The fact finding process is consistently defined to include evaluations of credibility and demeanor. Research on video-mediated communications strongly suggests that videoconferencing prevents the accurate assessment of customary indices of these characteristics. Therefore, videoconferencing fails as a fact finding method in contexts such as immigration courts where determinations rely heavily on observational assessments of credibility." Harvard Law Review, Feb. 2009, pp. 1181-1193. http://www.harvardlawreview.org/issues/122/feb09/DEVO/DEVO_intro09.pdf

JUDICIAL REVIEW - PETITION FOR REVIEW - CONTINUANCE
All of the circuit courts have considered whether they have jurisdiction to review an IJs denial of a continuance. The courts are divided about whether INA 242(a)(2)(B)(ii), the discretionary decision bar to judicial review, precludes review of this question:

First Circuit (Court of appeal has jurisdiction): Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007).

Cases Upholding Denial of Continuance: Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007) (sought continuance to file asylum application after disregarding deadline).

Second Circuit (court of appeal has jurisdiction): Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006).

Cases Overturning Denial of Continuance: Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008) (labor cert. pending).

Cases Upholding Denial of Continuance: Pedreros v. Keisler, 503 F.3d 162 (2d Cir. 2007) (I-130 denial on appeal).

Note: The Second Circuit has requested guidance from the BIA on the issue of continuances. In Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008), the court stated that it could not adequately assess whether the agency abused its discretion in denying a continuance due to the "absence of standards that reflect the various situations of those seeking continuances."

Third Circuit (Court of Appeal has jurisdiction): Khan v. Atty Gen., 448 F.3d 226 (3d Cir. 2006).

Cases Overturning Denial of Continuance: Hashmi v. U.S. Atty Gen., 531 F.3d 256 (3d Cir. 2008) (I-130 pending).

Cases Upholding Denial of Continuance: Khan v. U.S. Atty Gen., 448 F.3d 226 (3d Cir. 2006) (labor cert. pending).

Fourth Circuit (Court of Appeal has jurisdiction): Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007).

Cases Overturning Denial of Continuance:

Cases Upholding Denial of Continuance: Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007) (labor cert. pending).

Fifth Circuit (Court of Appeal has jurisdiction): Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006).

Cases Overturning Denial of Continuance: Masih v. Mukasey, 536 F.3d 370 (5th Cir. 2008) (labor cert. and I-140 approved and visa priority date current when I-485 filed)

Cases Upholding Denial of Continuance:

Sixth Circuit (Court of Appeal has jurisdiction): Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir. 2006).

Cases Overturning Denial of Continuance: Badwan v. Gonzales, 494 F.3d 566 (6th Cir. 2007) (IJ failed to explain denial of continuance for petitioner to supplement adjustment application); Ahmed v. Mukasey, 519 F.3d 579 (6th Cir. 2008) (I-130 pending)

Cases Upholding Denial of Continuance: Ukpabi v. Mukasey, 525 F.3d 403 (6th Cir. 2008) (Notice of Intent to Deny issued); Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir. 2006) (I-130 pending).

Seventh Circuit (Court of Appeal has jurisdiction): Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004).

Cases Overturning Denial of Continuance: Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (labor cert. pending)

Cases Upholding Denial of Continuance: Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007) (sons application for naturalization, upon which an I-130 would be based, had been denied).

Seventh Circuit (Court of Appeal lacks jurisdiction): Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008).

NOTE: The Seventh Circuit generally has said that it lacks jurisdiction over continuance denials, but it will review the denial where it results in the denial of a benefit. This is the only circuit to reach different results depending upon the context.

Eighth Circuit (Court of Appeal lacks jurisdiction): Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir. 2004).

Ninth Circuit (Court of Appeal has jurisdiction): Sandoval-Luna v. Mukasey, 526 F.3d 1243 (9th Cir. 2008).

Cases Overturning Denial of Continuance: Vasquez v. Mukasey, No. 05-70618, 2008 U.S. App. LEXIS 16360 (9th Cir. July 30, 2008) (sought continuance to file an expedited FOIA request).

Cases Upholding Denial of Continuance: Sandoval-Luna v. Mukasey, 526F.3d 1243 (9th Cir. 2008) (labor cert. pending)

Tenth Circuit (Court of Appeal lacks jurisdiction): Yerkovich v. Ashcroft, 381 F. 3d 990 (10th Cir. 2004).

Eleventh Circuit (Court of Appeal has jurisdiction): Zafar v. Atty Gen., 461 F.3d 1357 (11th Cir. 2006).

Cases Overturning Denial of Continuance: Merchant v. Atty Gen., 461 F.3d 1375 (11th Cir. 2006) (approved labor cert., I-140 pending).

Cases Upholding Denial of Continuance: Zafar v. Attorney General, 461 F.3d 1357 (11th Cir. 2006) (labor cert. pending).

OVERVEW " IMMIGRATION COURT " ETHICS FOR IMMIGRATION JUDGES
The Executive Office for Immigration Review website has a page dedicated to the ethics and professionalism required of immigration judges, including an ethics guide for immigration judges and guides on how to file complaints. www.justice.gov/eoir/sibpages/IJConduct/IJConduct.htm

BIBLIOGRAPHY " REMOVAL PROCEEDINGS " RIGHT TO COUNSEL
INA 292; Matt Adams, Advancing the Right to Counsel in Removal Proceedings, 9 Seattle Journal for Social Justice 169 (2010); Donald Kerwin, Charitable Legal Programs for Immigrants: What They Do, Why They Matter and How They Can be Expanded, 04-06 Immigration Briefings 1 (June 2004); Donald Kerwin, Migration Policy Institute, Revisiting the Need for Appointed Counsel 1-9 (April 2005).

OVERVIEW " REMOVAL PROCEEDINGS " JURISDICTION AFTER DEPARTURE
Matter of Sanchez-Herbert, 26 I. & N. Dec. 43 (IJ retains jurisdiction to order removal of a noncitizen who has been properly charged even after the respondent has departed the United States; IJ should have ordered respondent removed in absentia).