Uniform Docketing Manual

The Office of the Chief Immigration Judge (OCIJ) supervises and directs the activities of the Immigration Courts which conduct in excess of 250,000 immigration hearings annually. The Chief Immigration Judge, two Deputy Chief Immigration Judges and eight Assistant Chief Immigration Judges, under the guidance of the Director of the Executive Office for Immigration Review (EOIR), develop operating policies for the Courts which are located in 50 cities. In addition, they oversee policy implementation and evaluate the performance of the Immigration Courts. OCIJ is responsible for the overall direction and supervision of the Immigration Judges in the performance of their duties and for providing administrative support for the Immigration Court. In addition to the judges mentioned above, OCIJ contains a headquarters staff of management, legal and support personnel which includes, a Counsel to the Chief Immigration Judge, a Special Assistant, an Executive Officer, a Central Operations Unit, a Court Analysis Unit, and a Language Services Unit.

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B. IMMIGRATION COURT

Each Immigration Court is staffed with Immigration Judges who conduct immigration hearings. They function in an independent decision-making capacity determining the facts in each case, applying the law, and rendering a decision. Their decisions are final unless appealed to the Board of Immigration Appeals. The judges may be assisted by a law clerk, who researches case law and provides other legal support as required.

Under the supervision of an Assistant Chief Immigration Judge, the Court Administrator manages the daily activities of the court and supervises the support staff which usually includes language clerks and specialists, paralegal specialists, legal technicians, docket clerks, and clerk typists. The Court Administrator is the liaison with the local Immigration and Naturalization Service (INS), the private bar, and volunteer organizations which represent aliens.

Not all court hearings are conducted in the 50 court locations. In addition, the judges hold hearings in designated detail cities where the caseload is not sufficient to warrant the establishment of a permanent court. Hearings also are conducted in INS detention centers around the country, as well as state and Federal penal institutions, in conjunction with the Institutional Hearing Program.

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C. TYPES OF IMMIGRATION HEARINGS

There are eight principal types of immigration proceedings conducted by the Immigration Court: removal, credible fear, asylum only, claimed status review, deportation, bond redetermination, exclusion, and rescission. All the proceedings involve an alien referred to as either a respondent or an applicant, whom the INS has charged with violating the immigration laws of the United States.

1. Removal Hearing

A removal case usually arises when INS alleges that a respondent either is inadmissible to the United States or where a respondent has entered the country illegally by crossing the border without being inspected by an immigration officer. Removal cases also occur when INS alleges that a respondent has entered the country legally, but then has violated one or more conditions of his admission. For example, a visitor who is admitted to the United States for a specified time period but who overstays his period of authorized stay, violates a condition of his admission and may be subject to removal proceedings.

When the INS becomes aware of a respondent whom they believe to be removable, they issue a charging document called a Notice to Appear (NTA). An NTA is the appropriate charging document that INS must file with the court for an alien that it seeks to remove on or after April 4, 1997. A removal proceeding actually begins when the NTA is filed with an Immigration Court. In such proceedings, the government is represented by an INS Trial Attorney.

2. Credible Fear Review

If an alien in expedited removal expresses a fear of persecution, or an intention to apply for asylum, that alien will be referred to an INS officer for a credible fear determination. If the INS officer determines that the alien has not established a credible fear of persecution (and an INS supervisor concurs), the alien may request review of that determination by an Immigration Judge on the INS Record of Negative Credible Fear Finding and Request for Review by Immigration Judge (INS Form I-869). That review must be "concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no event later than seven days after the date of the determination [by the supervisory asylum officer]." INA section 235(b)(1)(B)(iii)(III).

3. Asylum Only Hearings

Arriving aliens who are stowaways are subject to expedited removal. If an arriving alien stowaway indicates an intention to apply for asylum to an immigration officer upon inspection, the officer will refer the alien to an INS asylum officer for a credible fear determination. If an asylum officer determines that the alien does not have a credible fear of persecution, the INS will file Form I-863 with the Immigration Court and refer the case for an asylum-only hearing. The alien stowaway is not considered an applicant for admission and is not eligible for a hearing under section 240 of the INA.

4. Claimed Status Review

If an alien in expedited removal claims under oath to be a United States citizen, to have been lawfully admitted for permanent residence, to have been admitted as a refugee, or to have been granted asylum, he/she can obtain a review of that claim by an Immigration Judge where INS determines that the alien has no such claim (claimed status review). Although not required by statute or regulation, claimed status review cases (except cases involving claims to United States citizenship) will be heard, to the maximum extent practical, within the same time frame as credible fear review cases (within 24 hours to the extent practical, but not more than seven days from the filing of the charging document).

5. Deportation Hearing

Prior to April 1, 1997, a deportation case usually arose when INS alleged that a respondent entered the country illegally by crossing the border without being inspected by an immigration officer. Deportation cases also occurred when INS alleged that a respondent entered the country legally with a visa but then violated one or more conditions of the visa.

When the INS became aware of a respondent whom they believed to be deportable, they issued a charging document called an Order to Show Cause (OSC). An OSC is the charging document that was used prior to April 1, 1997. A deportation proceeding actually began when the OSC was filed with an Immigration Court. In such proceedings, the government, represented by INS, had to prove that a respondent was deportable for the reasons stated in the OSC.

Deportation and exclusion proceedings are now encompassed by removal proceedings. However, as of the publication of this manual, a significant number of deportation cases are still pending in the Immigration Courts.

6. Bond Redetermination Hearing

The INS may detain a respondent who is under removal (except in the case of an arriving alien or an alien charged with being inadmissible to the United States) or deportation proceedings and condition his/her release from custody upon the posting of a bond to ensure the respondent's appearance at the hearing. When this occurs, the respondent has the right to ask an Immigration Court to redetermine the bond. In a bond redetermination hearing, the judge can raise, lower, or maintain the amount of the bond, eliminate it altogether, or change any of the conditions over which the Immigration Court has authority. The bond redetermination hearing is completely separate from the removal or deportation hearing. It is not recorded and has no bearing on the subsequent removal or deportation proceeding.

NOTE: Institutional Hearing Program Cases Immigration bonds are not set for incarcerated aliens since they are held in Department of Corrections custody, not by INS. Therefore, until an incarcerated criminal alien is released from prison to INS, a bond redetermination hearing is not appropriate.

7. Exclusion Hearing

Prior to April 1, 1997, an exclusion case involved a person who tried to enter the United States but was stopped at the point of entry because the INS found the person to be inadmissible. This situation occurred, for example, when an INS officer believed the applicant's entry papers were fraudulent.

To place an applicant for admission to the United States in exclusion proceedings, the INS issued a charging document referred to as an "I-122" and filed it with an Immigration Court. Unlike a respondent in deportation proceedings, the INS had sole jurisdiction over the custody status of an applicant in exclusion proceedings. The INS District Director could either detain the applicant or "parole" the applicant into the country; i.e., release him/her from detention and allow him/her to remain free until the hearing is completed. In either case, the applicant technically had not entered the country. In the course of the exclusion proceedings, the burden of proof was on the applicant to prove admissibility to the United States. All exclusion proceedings were closed to the public unless request otherwise by the applicant.

Deportation and exclusion proceedings are now encompassed by removal proceedings. However, as of the publication of this manual, a significant number of exclusion proceedings are still pending in the Immigration Courts.

8. Rescission Hearing

A less common type of proceeding that comes before the Immigration Court is a rescission case. If, within five years of granting adjustment of status, the INS discovers that the respondent/applicant was not entitled to lawful permanent residence (LPR) status when it was granted, the INS issues a Notice of Intent to Rescind. If the respondent/applicant requests a hearing before an Immigration Court, INS will file the Notice with the Immigration Court and the proceeding to rescind the individual's LPR status commences. As with deportation cases, the government has the burden of proof to show that rescission is warranted. If an individual loses LPR status, he/she then is usually subject to deportation proceedings.

Although rescission proceedings still exist after April 1, 1997, the INS may place an LPR into removal proceedings. An order of removal is sufficient to rescind the alien's status.

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D. THE UNIFORM DOCKETING SYSTEM

The case processing system that governs the management of all cases in the Immigration Court is detailed in the Uniform Docketing System Manual issued by the Office of the Chief Immigration Judge. Operational procedures are amended or created through Operating Policies and Procedures Memoranda (OPPM) issued to the Immigration Courts by the Chief Immigration Judge.

When the Immigration Court receives a charging document, the support staff assigned to the Intake Unit enters the case information into the EOIR computer data base - the Automated Nationwide System for Immigration Review (ANSIR). ANSIR automatically schedules the case for a Master Calendar Hearing before a judge and generates a hearing notice informing the parties of the date, time and place for the hearing. The support staff also creates a case file called the Record of Proceeding (ROP).

Generally the support staff schedules 25 cases for each half-day Master Calendar session. Staffs assigned to the Case Processing Unit assist the judge during the Master Calendar Hearing. These staff members usually are interpreters who interpret questions and answers to and from non-English speaking respondents/applicants, update case information in ANSIR, and perform other clerical functions throughout the session.

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E. THE MASTER CALENDAR

At the Master Calendar, all respondents/applicants not represented by counsel will have their rights explained to them by the judge, who will provide them the opportunity to seek counsel/representative at their own expense. For those who are represented, the judge establishes representation for the record by ensuring that the attorney or representative has filed the appropriate notice of appearance form (EOIR-28) with the Immigration Court, and further assures that the respondent/applicant has been fully advised by counsel of his/her rights.

The judge usually is able to complete simple issue cases at the Master Calendar Hearing. For more complex cases, the judge uses the Master Calendar Hearing to establish whether or not deportability or admissibility of the respondent/applicant is a contested issue. Often deportability is established by the respondent's admission of the charges contained in the charging document. Where the issue is contested, the party having the burden of proof must prove deportability or admissibility. Once this has been established, the judge explores with the unrepresented respondent/applicant the types of discretionary relief which may be available or has the respondent's/applicant's attorney/representative indicate the relief sought.

The immigration laws provide a variety of forms of potential relief from deportation ranging from simple grants of voluntary departure to complex waivers of deportation or removal. All such forms of relief however, are granted or denied by the case-assigned Immigration Judge at his/her discretion.

1. Voluntary Departure

Voluntary departure enables a respondent to leave the country at his/her own expense within a time limit specified by the judge. This form of relief allows the respondent to reenter the country at any time after leaving so long as the proper visa for reentry is obtained. This form of relief while quite common is also very significant since an order of deportation or removal removing a respondent from the country at the government's expense bars the respondent from legally reentering for ten years from the date of removal, even with an otherwise valid visa, unless granted a waiver by the U.S. Government.

2. Request for Asylum

A major form of relief is a request for asylum. To be granted this form of relief, the respondent/applicant must prove he/she has a well-founded fear of persecution because of race, religion, nationality, political beliefs, or membership in a social group if returned to his/her country of origin and he/she is not statutorily barred from such relief. This relief must be completed by the court within 180 days from the filing of the asylum application with the court.

3. Suspension of Deportation/Cancellation of Removal

A respondent who has been living illegally in the United States for seven years or more, may ask for relief known as suspension of deportation. For cancellation of removal, a respondent must have lived in the United States for ten years. For this relief to be granted, the respondent must prove the required amount of continuous physical presence in the United States, good moral character, and extreme or exceptional and extremely unusual hardship if returned to the country of origin.

4. Adjustment of Status

Another type of relief is adjustment of status for a respondent who is deportable but is eligible for lawful permanent resident status based on a number of factors including marriage to a U.S. citizen and waivers of criminal convictions as a basis for deportability.

After determining the type of relief a respondent/applicant seeks, the judge sets a date for the respondent/applicant to file the appropriate application for relief. The judge then schedules the case on the Individual Calendar for a hearing on the merits of the application. The time for the individual hearing is set on the record by the Immigration Judge after consultation with both the government and the respondent/applicant or his/her attorney.

Frequently, failure to file an application on time results in the Immigration Judge determining that a respondent has abandoned his/her intention to apply for relief, and the Immigration Judge will issue an order of deportation or removal.

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F. THE INDIVIDUAL CALENDAR

The length of the Individual Calendar hearing ranges from less than an hour to an entire day or more based on the complexity of the issues in the case and the number of witnesses to be called. At the Individual Calendar Hearing, the judge hears testimony from the respondent/applicant and witnesses for either party and cross-examination. The Immigration Court will provide an interpreter for a non-English speaking respondent/applicant or witness. Generally, the judge renders an oral decision in the case on the record at the conclusion of testimony and cross-examination. The decision includes a finding of facts, the establishment of deportability, excludability, or removability, a statement of the relief sought, the application of existing case law, and the judge's conclusion about the case.

After announcing the decision, the judge gives each party an opportunity to waive or reserve appeal. If both parties waive appeal, the judge's order is final. Whether appeal is waived or reserved, a form order ("minute order") summarizing the judge's decision is given to the parties before they leave the court.

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G. THE APPEAL PROCESS

When a party files an appeal within the specified time limits (30 days), the staff in the post-hearing unit of the Immigration Court assembles and forwards the ROP to the Board of Immigration Appeals (BIA).

The BIA is composed of a Chairman and fifteen Members who are appointed by the Attorney General. The BIA reviews case decisions of the Immigration Judges that have been appealed by one or both parties to the case. The BIA decisions are subject to review by the Federal Courts.

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H. THE INSTITUTIONAL HEARING PROGRAM (IHP)

The Immigration Reform and Control Act of 1986 requires the Attorney General to expeditiously commence immigration proceedings for alien inmates convicted of crimes in the United States. To meet this requirement, the Department of Justice established the Institutional Hearing Program (IHP), which allows aliens serving criminal sentences to have an immigration hearing prior to their release from prison.

The Immigration Courts' IHP caseload has increased dramatically from just over 1,100 cases in FY 1988 to almost 20,000 in FY 1997 with hearings now held in approximately 75 active prison sites. Almost every Immigration Court has administrative control over at least one IHP site, and many courts handle multiple IHP locations. A chart depicting Immigration Courts and their specific IHP assignments for which they have administrative control can be located on the Administrative Control List found on the EOIR Intranet.

Due to various resource restrictions, immigration hearings are not held in every prison where an alien inmate is housed. Coordination of centralized or regionalized hearing locations within the specific correctional system is important to an efficient and effective IHP hearing program.

Since Immigration Courts use hearing rooms within prison environments to conduct these hearings, the hearing room availability to Immigration Courts and the transportation of alien inmates to and from a centralized facility for immigration hearing purposes must be coordinated by the courts around various other needs identified by corrections officials. Various days of the week and/or weeks of the month restrictions exist in virtually every IHP site.

Only those sites approved as hearing facilities by OCIJ will serve as IHP hearing locations. An extensive site visit is made to each potential hearing location prior to approval.

Immigration Court IHP site selection focused on penal institutions geographically convenient to either an Immigration Court base city or a detail city location. By selecting institutions in geographical locations as outlined above, IHP hearings can be conducted according to one of the following IHP methods:

1. Base Trips

Prison is within commuting distance from an Immigration Court and hearings are held on selected individual days.

In Conjunction with Existing Details

Prison is within the vicinity of an existing immigration judge detail city location and the frequency of IHP hearings is tied to the detail. IHP hearings are held on individual days of the existing detail.

Permanent Immigration Court

In a few instances caseload growth has necessitated the placement of a full-time Immigration Judge in a courtroom at the prison.

Hearings by Video Teleconferencing (VTC)

Installation of VTC equipment in certain courtrooms and penal institutions is a relatively new method of conducting IHP hearings. Savings in IJ time and travel, security issues and emergency access all contribute to the expected growth in this area.

IHP cases, in some instances, require additional docketing procedures. If any additional procedures are necessary, they will be outlined in detail under an IHP section of the chapter.

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