Criminal Defense of Immigrants

 

 

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).