8.7 - Rules of Oral Argument

(a) Attire — The Board expects all persons to respect the decorum of the court. Practitioners are expected to appear in business attire.  All others in attendance are expected to dress in proper attire.

(b) Electronic Devices — 

          (1) Recording devices — Only the Board may record oral argument.  No devices of any kind, including cameras, video recorders, and cassette/digital recorders, may be used by any person other than the Board to record any part of the oral argument.

          (2) Possession of electronic devices during oral argument — Subject to section (3) below, all persons - including parties and members of the press - may bring laptop computers, tablets, cellular telephones, electronic calendars, and other electronic devices commonly used to conduct business activities, including electronic devices which have collateral recording capability provided that they are not used to record the oral argument.  All electronic devices must be turned off in courtrooms and during oral argument, unless otherwise authorized under section (3) below.  Outside of courtrooms and oral argument, electronic devices may be used in non-recording mode, but they must be made silent, and usage must be limited and non-disruptive.  For further discussion on the use of electronic devices, see EOIR PM 19-10, EOIR Security Directive: Policy for Public Use of Electronic Devices in EOIR Space (Mar. 20, 2019), available at /media/995936/download?inline.

          (3) Use of electronic devices during oral argument — Only practitioners of record and attorneys from DHS representing the government may use laptop computers, tablets, electronic calendars, and other electronic devices commonly used to conduct business activities, provided they are used for immediately relevant court and business related activities and not used to record the oral argument.  Such devices may only be used in silent/vibrate mode.  The use of such devices must not disrupt oral argument, and Board Members have the discretion to prohibit the continued use of any electronic devices that pose a disruption to ongoing proceedings.  Cellular telephones and other electronic devices must be turned off when not in use to conduct business activities in the courtroom.  For further discussion on the use of electronic devices, see EOIR PM 19-10, EOIR Security Directive: Policy for Public Use of Electronic Devices in EOIR Space (Mar. 20, 2019), available at /media/995936/download?inline.

(c) Conduct — All persons attending oral argument must respect the dignity of the proceedings.  Talking is not permitted in the gallery during oral argument, nor may attendees depart or enter the room once oral argument has begun.  Disruptive behavior is not tolerated.

          (1) Practitioners — Practitioners are expected to observe the professional conduct rules and regulations applicable to EOIR practitioners and of their licensing authorities and to present, at all times, a professional demeanor becoming of an officer of the court.

          (2) Represented parties — Parties who are represented are welcome, but not required, to attend oral argument.  Represented parties are permitted to observe but may not speak during oral argument.

          (3) Detained respondents — Detained respondents are not permitted to attend oral argument.

          (4) Amici curiae — Amici curiae are subject to the same rules of conduct as practitioners of record.  See Chapter 8.7(e)(13) (Amicus curiae).

          (d) Prior to Oral Argument — 

          (1) Check in — On the day of oral argument, parties are required to check in at least 30 minutes prior to the scheduled time for oral argument.  The Oral Argument Coordinator will advise the parties regarding the procedures for check in.

(2) Adverse weather conditions — In the event of adverse weather conditions, parties should contact the Oral Argument Coordinator for guidance or otherwise comply with the instructions provided in the selection notice.

          (3) Failure to appear for oral argument — In the event that either party fails to appear for oral argument, the Board may hear the argument of the side that does appear, in which case the argument is entered into the record and considered by the Board in rendering its decision.  Given the administrative burden of scheduling oral argument, the Board considers an unexplained failure to appear to be a serious discourtesy to both the Board and the other party and will sanction practitioners accordingly.  The party whose practitioner fails to appear will not be penalized for that failure, except insofar as that party will be deprived of the benefit of their case being argued.

          (4) Late arrival for oral argument — If a party is unable to arrive for oral argument at the appointed time due to extenuating circumstances, such as travel delays, the party should immediately contact the Oral Argument Coordinator or, if the Oral Argument Coordinator is not available, a senior manager in the Clerk’s Office.  See Appendix A (Directory).

          (5) Supplemental briefs — While the Board generally does not accept supplemental briefs, an exception is made for cases that have been granted oral argument.  Parties may submit supplemental briefs in anticipation of oral argument, but parties are not sent a supplementary briefing schedule.  Parties may submit supplemental briefs until 15 days prior to the date of oral argument.  Parties may reply to supplemental briefs up until 7 days prior to the date of oral argument.  Supplemental briefs should be directed to the Oral Argument Coordinator.  Supplemental briefs are subject to the same requirements as other briefs.  See generally Chapters 3 (Filing with the Board), 3.2 (Service), 4.6 (Appeal Briefs), 5.4 (Motion Briefs).  Amicus curiae are subject to the same supplemental briefing rules and limitations as the parties.  See generally Chapters 2.10 (Amicus Curiae), Chapter 4.6(i) (Amicus Curiae Briefs).  Supplemental briefs must be served on the opposing party as expeditiously as they are served on the Board.

          (6) Additional authorities — Both oral argument and any supplemental briefs should be based on a thorough research of legal authorities and should include all legal authority that a party might wish to rely upon in oral argument.  In the event that a party locates additional legal authority subsequent to the filing of a supplemental brief, parties should observe the following:

          (A) Supplemental authorities — If a party inadvertently omits a legal authority and wishes to refer to it at oral argument, that party must so notify the Board (and provide a copy, where appropriate) in advance of oral argument.  See Chapter 3.2 (Service).  Opposing parties must be informed (and provided a copy, where appropriate) as expeditiously as the Board.  Parties may not use supplemental authority, however, as an excuse to file a supplemental brief after the time for briefing has expired.  Once the supplemental briefing deadline has passed, see subsection (5), above, the Board will not consider any filing that appears in form or substance to be a brief.

          (B) New authorities — If a party discovers a newly available authority, that party should inform the Oral Argument Coordinator and the opposing party immediately.  Parties should promptly submit a statement regarding the significance, or lack thereof, of the new authority to the matter being argued.  The Board will thereafter determine what action, if any, will be taken in light of the new authority.

          (7) Exhibits — The Board accepts no new evidence on appeal.  If a party wishes to display exhibits used in the proceeding below or wishes to use presentation aids that do not constitute evidence, the party must make prior arrangements with the Oral Argument Coordinator for delivery and display.  The party is also responsible for removing any exhibits or presentation aids at the conclusion of the proceeding.

          (8) Reviewing the record of proceedings — Parties wishing to review the record of proceedings should make arrangements with the Oral Argument Coordinator prior to oral argument.  Absent special arrangements, the record is not available for review in the 2 hours prior to the scheduled time for oral argument.

(e) Oral Argument — Oral argument should be approached as an opportunity to expand upon, and not merely repeat, a party’s written arguments.  The Board does not accept new evidence on appeal, and the Board also does not hear testimony. Parties arguing before the Board should follow the rules and guidelines below.

          (1) Oral argument table — Parties are generally limited to two legal staff each at the oral argument table.  This limit includes practitioners, paralegals, and all other personnel. Represented parties who attend oral argument may not sit at the oral argument tables but are provided priority seating in the gallery.

          (2) Addressing the Board — Individual Board Members are to be referred to as either “Appellate Immigration Judge _____” or “Board Member _________” or “Your Honor.”  Titles, such as “Chief Appellate Immigration Judge _______” or “Chairman _________” and “Deputy Chief Appellate Immigration Judge ______” or “Vice Chairman _________,” may also be used.  The Board Members as a group may be referred to either as “the Board” or “Your Honors.”

          (3) Standing and sitting — Parties should stand when addressing the Board. A podium is provided, and the parties must speak from that podium during opening and closing statements.  At other times, parties may respond to the Board’s questions from the oral argument table.

          (4) Familiarity with the record — Parties are expected to be thoroughly familiar with the record.  Parties should prepare oral argument with the understanding that the Board Members have studied the briefs and are also thoroughly familiar with the record.

          (5) Opening statements — At the commencement of oral argument, persons to argue before the Board should rise and introduce themselves.  Opening statements are encouraged.  An opening statement should include a brief introduction to the case and the core issue or issues being argued.  Parties should not read at length from briefs, authorities, or the record.

          (6) Recitation of facts — A brief chronological statement of the pertinent facts, where warranted, is welcome at the outset of oral argument.  Extensive recitation of facts, however, is discouraged.

          (7) Recitation of law — Oral argument should focus upon the critical points of law that can be properly addressed during the time for oral argument.  In their oral presentation, parties may not cite to any case, reported or otherwise, that does not appear in either of the parties’ briefs, unless one of two conditions is met:  the Board and opposing counsel have been notified in advance of the intention to cite to that case, or the citation is in response to a Board Member’s question or the opposing party’s oral argument.  See Chapter 8.7(d)(6) (Additional authorities).

          (8) Argument — Parties are generally allotted 30 minutes per side to present their arguments with a portion of time reserved for rebuttal, if desired by a party.  If a party anticipates needing more than 30 minutes, the party should submit a request for additional time, in writing, to the Oral Argument Coordinator at least 15 days prior to the date of oral argument.  A copy of the request should be served on the opposing party as well.

          If oral argument will be shared by two practitioners, the Oral Argument Coordinator must be notified in writing at least 15 days prior to the scheduled oral argument.  The allotted time may be apportioned between them according to their discretion.  Practitioners should not duplicate each other’s arguments.

          (9) Rebuttal — At the outset of oral argument or at the conclusion of their presentation, a party may reserve time for rebuttal, provided there is time remaining.

          (10) Questions from the bench — Board members may ask questions at any time during oral argument.  Parties should answer the Board’s questions as directly as possible. Board Member questions apply toward the 30 minutes allotted for argument and do not extend that time.

          (11) Marking of time — Parties are notified when their time for oral argument has elapsed.  Parties are expected to monitor their own time, especially when reserving time for co-counsel or rebuttal.  In the event of disagreement, the Board’s timekeeping is controlling.

          (12) Cessation of oral argument — At any point during oral argument, the Board may terminate oral argument if further argument appears unnecessary.  The Board may terminate oral argument even if a party’s allotted time has not expired.

          (13) Amicus curiae — Amicus curiae may present oral argument only upon advance permission of the Board.  Such permission is granted sparingly.  The time allotted to amicus curiae is determined on a case-by-case basis. Amicus curiae argue after both sides have concluded their arguments.  Amicus curiae are subject to the same oral argument rules and limitations as the parties.

Where appropriate, the Board may provide parties an opportunity to respond to the oral argument of amicus curiae.