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Strategy Considerations When Responding to Scheduling Orders in Children’s Cases

CILA has recently heard of a trend in children’s cases in immigration courts across the country ordering children to submit any applications for relief by a particular deadline in a court notice, scheduling order, or other order by the immigration judge. News outlets have also reported on this issue beginning to occur nationwide. This has often occurred in children’s cases where there is pending relief before the United States Citizenship and Immigration Services (USCIS) or activity in state court related to Special Immigrant Juvenile status (SIJS), but no relief pending directly in immigration court.  While this trend evolves, likely plays out differently per jurisdiction, and each case is unique, CILA put together some key considerations to help you navigate this issue and strategize if the issue arises in your client’s case.

KEY REMINDERS & STRATEGY CONSIDERATIONS

Immigration Court Deadlines: The Immigration Court Practice Manual provides guidelines and procedures that govern a wide variety of issues an advocate will face while in immigration court, including deadlines. The Immigration Court Practice Manual outlines standard deadlines regarding submitting applications and evidence in immigration court. The Immigration Court Practice Manual also states these deadlines apply “unless otherwise specified by the Immigration Judge.” Immigration Court Practice Manual, Ch. 3.1(b). According to 8 C.F.R. § 1003.31(c), “The Immigration Judge may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived.” 

December 2020 EOIR Policy Memorandum 21-05: Immigration judges can set deadlines in the case that are different than the standard rules, and while some judges already do this frequently and as a matter of course, this practice may become more of the general standard as a result of the December 1, 2020 Executive Office for Immigration Review (EOIR) Policy Memorandum (PM) 21-05 Enhanced Case Flow Processing in Removal Proceedings. This PM applies to non-status docket, non-detained cases with representation and works toward the goal of reducing routine matters in court and increasing EOIR efficiency. According to EOIR, this PM does not apply to vulnerable populations including unaccompanied children; however, recently there has been a greater practice of de-designating/re-determining children’s status as unaccompanied children in immigration courts, so this is still likely to frequently arise in children’s cases. Under the new PM, it will be standard to issue a scheduling order with deadlines for pleadings, evidence of removability, and applications for relief rather than holding a master calendar hearing. The PM covers several changes to EOIR procedures, and it is important to read if you practice before EOIR.

While this PM directly discusses the use of pre-hearing scheduling orders, the current trend in children’s cases started in advance of the issuance of this PM and is not directly related. The PM is in effect nationwide and as of early December 2020 implemented in nine locations. It will vary per court location when the PM will be implemented as a result of COVID-19 impacts on immigration courts, but courts could begin issuing scheduling orders related to this PM before they start holding master calendar hearings. The PM also states that the Immigration Court Practice Manual will be updated to reflect the changes; while an updated manual has not been issued yet, it is important to keep an eye out for this. Significantly, footnote 12 of the PM reads: “The deadline for the filing of supplemental proposed evidence, other than rebuttal or impeachment evidence, will generally be 30 days in advance of the merits hearing, though the specific deadline remains committed to the discretion of the Judge.” This represents a change from the current standard deadline in the Immigration Court Practice Manual of 15 days in advance of the hearing.

The PM states, “Additionally, failure to abide by the deadlines set by the immigration court may constitute grounds for disciplinary action. See, e.g., 8 C.F.R. §§ 1003.102(n) (conduct prejudicial to the administration of justice), 1003.102(o) (competent representation), and 1003.102(q)(2) (complying with time and filing limitations).” It is important to remember not meeting court deadlines can also result in ethical violations and disciplinary action for the attorney of record.

Compliance with a Judicial Order: There are potentially significant repercussions for your client if you do not comply with an immigration judge’s order. The Immigration Court Practice Manual states, “®he untimely submission of a filing may have serious consequences” including, “if an application for relief is untimely, the alien’s interest in that relief is deemed waived or abandoned.” Immigration Court Practice Manual Ch. 3.1(d)(ii); see also 8 C.F.R. § 1003.31(c). According to Matter of R-C-R-, 28 I&N Dec. 74 (BIA 2020), “After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.”

Legal Screenings: Ensure that you have fully screened the child for all legal relief. Pursue any potential legal relief with diligence so that you can show progress and provide status updates to the court, if necessary. Clients’ situations are not static and neither are their families’, so additionally, it is important to check in with your client regularly to see if there are any changes in their lives or if anything has occurred within their family or home country that could change your initial analysis and open the door to new legal relief or impact your case strategy.

If submission of an application for relief is not possible or warranted, be sure you have fully communicated the issues and assessed the situation with your client. For example, if your client chooses not to pursue a particular form of legal relief, ensure that you have fully communicated the issues and risks of that choice to your client. Depending on your client’s age and understanding, you may want to also draft a document that summarizes the options you have reviewed with your client, any known risks involved, and their decision. Have your client date and sign the document and keep it in your internal file. Ensure your document accurately represents your communications with your client and the issues involved. This is sometimes helpful to have if your client has chosen to take a risky action counter to your advice. This can also be useful when there are sometimes no good options in a case, and you know there may be a negative outcome. This can also help communicate the seriousness of the decision to your client, as well as ensure that everything was clearly communicated orally and in writing.

Preserving Issues for Appeal: It is always important to preserve issues for appeal, but particularly in situations such as these, where there may be a higher likelihood of a removal order being issued and the need to appeal. Be sure to think from this lens: what do I need to do now to ensure I have my appeal arguments set up for me? Have I made my arguments on the record and preferably in writing? Again, this reiterates the point that it is essential to respond to these orders.

Drafting a Response: It is up to the attorney, with client consultation and direction, to determine the best strategic response to the order. That response could include submission of an application, other documentary evidence showing pending relief and proof of filing, legal argument, filing a written objection, motion, or combination of these, taking into consideration that there is risk involved for any action that is not full compliance with the judicial order.

In addition to the key reminders raised above, also consider the following issues. Keep in mind, it is important to raise all viable arguments to help protect your record. What arguments to raise is a strategy decision and depends on the case.

Errors Within Orders: Apparently, some orders have noted that a prior deadline was given in the individual’s case regarding filing relevant applications and that deadline was missed. According to reports, in several cases, no prior deadline was given. It is imperative to carefully read the orders for any instructions and errors regarding this issue and others.

Fully respond to the order. If there is an error such as no prior deadline was given in your case, but the order says you missed a deadline, then clearly respond to this misstatement of facts in your response and object. Even though this might be boilerplate language; do not simply dismiss it. If the court made this error in your client’s case, it can be very damning to your client and potentially preclude your client the opportunity to continue through proceedings, so this is a very important issue to watch out for when reviewing incoming orders. Additionally, CILA is concerned how this issue might be impacting pro se clients.

If you are not sure whether a deadline was previously given by the judge during a prior hearing, then request a copy of the audio recording from the hearing. According to the Immigration Court Practice Manual 1.6(c)(iii)(A), “Immigration Court hearings are recorded digitally. If a party is requesting a copy of a hearing that was recorded digitally, the court will provide the compact disc.” You can call the court clerk to confirm how the court would like the request, but in CILA’s experience, you can simply draft a letter requesting a copy.

Re-determination/De-designation of Unaccompanied Child Status:It appears there is sometimes a motivation behind these orders that relate to re-determination/de-designation of unaccompanied child status. Keep this in mind and assess the case from that perspective as well when you are determining strategy. If the child is seeking asylum, the strategy may involve offering written arguments regarding why the child should still be considered an unaccompanied child and arguments relating to the fact that the child should have the right to seek asylum before the Asylum Office in the first instance pursuant to the TVPRA. Along with written arguments, you might supply the immigration court with a copy of the asylum application with a motion to hold the application in abeyance or alternatively supply the court with a receipt notice showing proof that the child’s asylum application was filed with USCIS along with your arguments regarding the jurisdictional issue.

There are several helpful resources on navigating re-determination/de-designation issues. For example, CLINIC has a Fact Sheet: Immigration Court Considerations for Unaccompanied Children Who File for Asylum with USCIS While in Removal Proceedings, in Light of J.O.P. v. DHS, No. 19-01944 (D. Md. Filed July 1, 2019) and CILA has two resources on the topic: Overview of UAC Designation and UAC Designation Flow Chart.

Status Docket: Present arguments for the case to be placed on the status docket. While not all jurisdictions utilize a status docket, it is still important to present the argument. If the status docket is used as a docket managing tool, this can be very helpful in children’s cases.

According to the PM 19-13 Use of Status Dockets, “cases in which a confirmed unaccompanied alien child (UAC) has filed an asylum application with USCIS must be continued while that application is pending adjudication with USCIS because USCIS has initial jurisdiction over such applications. INA § 208(b)(3)(C)” and is an example of when it is appropriate to place a case on the status docket. Advocates can also make the argument that children with pending SIJ cases before USCIS should be placed on the status docket while they wait for adjudication of the child’s petition. Unfortunately, language in this PM has made it more difficult for the status docket to be used in cases where SIJS is approved and the child is waiting on their priority date to become current for adjustment of status.

Deadline extension: If the court set an unreasonable deadline in the order or if additional time is needed due to significant case circumstances, the attorney may want to seek an extension of the deadline and request more time, while making arguments regarding the unreasonableness of the timeline and other extenuating circumstances and submitting any supporting evidence or documentary support for the arguments, if possible.

In removal proceedings, respondents “shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government. . . .” INA § 240(b)(4)(B). If the deadline is too short and unreasonable, it may help to make arguments that your client is due a reasonable opportunity to develop their claim, present evidence and review evidence presented against them; this may arise if additional investigation is needed into the possibility of relief or if counsel has attempted to review the file but there have been delays caused by the government. It will likely be important to offer documentation of efforts thus far to substantiate your claim.

In Matter of R-C-R- the immigration judge provided the respondent with a month to file an application on a date earlier than his next scheduled hearing. The immigration judge ordered him removed when he did not timely file an application, and the BIA dismissed the appeal. The BIA decision discusses different approaches the respondent could have taken including stating:

If the respondent required more than the allotted month to complete his application prior to the December 6, 2019, deadline, he could have filed a motion requesting that the Immigration Judge extend the deadline for submitting his application. See 8 C.F.R. §§ 1003.23(a), 1003.31(c) (2020). See generally 8 C.F.R. §§ 1003.29, 1240.6 (2020) (stating that an Immigration Judge may grant a motion or application for a continuance where good cause is shown). Had the respondent established good cause for extending the application deadline, approval of that request would likely have been appropriate. Cf. Matter of L-A-B-R-, 27 I&N Dec. 405, 413 (A.G. 2018) (stating that “the good-cause standard . . . requires consideration and balancing of all relevant factors in assessing a motion for continuance to accommodate a collateral matter”). However, the respondent made no such request. 

If you choose to seek an extension of the deadline, it may help to consult some resources focused on seeking a continuance since the extension request will be judged by the good cause standard. There are several practice advisories on seeking continuances that may help you develop your arguments such as American Immigration Council’s Practice Advisory Motions for a Continuance, CLINIC’s Practice Advisory Seeking Continuances in Immigration Court in the Wake of the Attorney General’s Decision in Matter of L-A-B-R-, and CILA’s blog post Certification, Backlogs and Visa Retrogression: Advocating for SIJ beneficiaries to remain in the US to adjust status.

Additionally, for those children who have approved SIJS and are awaiting a visa priority date, emphasize that SIJS is different from other types of cases that are pending. For example, a child with approved SIJS cannot just go home and wait out visa availability like a family-based petition, because the premise of their case is that it is not in their best interest to return home.

Administrative Closure: Present an argument that the immigration court has authority to administratively close the case and should in this situation because of the unique factors involved in children’s cases and depending on case facts, the unique nature of asylum for unaccompanied children. With the issuance of Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), the possibility of administrative closure is very limited. However, the U.S. Court of Appeals for the Fourth Circuit determined inRomero v. Barr, 937 F.3d 282 (4th Cir. 2019) “that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon [Immigration Judges] and the BIA the general authority to administratively close cases. . . .” While this case is only binding in the Fourth Circuit, it could be persuasive in other jurisdictions, and advocates should use similar arguments in their cases when raising administrative closure arguments. Learn more about administrative closure and how Romero v. Barr can be used in The Yale Law Journal’s article The Rise and Fall of Administrative Closure in Immigration Courts from February 2020. Also review the American Immigration Council and ACLU’s Practice Advisory Administrative Closure Post-Castro-Tum.

Due Process & Other Humanitarian Issues: Due process requires that individuals in removal proceedings are entitled to a full and fair hearing, and advocates can argue without additional time, or without the ability to pursue relief before USCIS, etc. that their due process rights are violated. Raise whether the order limits the child from having a fair opportunity to be heard.

It may be important to raise other considerations that go toward fairness and justice concerns, particularly since these are children’s claims, and most children are seeking humanitarian forms of relief. It often takes more time to develop a child’s claim because it takes more time to build rapport and fact gather when working with a child and when you are striving to employ trauma-informed and child friendly interviewing skills. There may be qualities specific to the child or their history that also emphasizes the need for more time. Moreover, there may be specific ways that COVID-19 affects the child, their family, and possibly the attorney involved that may affect the arguments raised against the order.

EOIR’s mission itself includes fairness in addition to expediency. EOIR’s mission reads: “The primary mission of the Executive Office for Immigration Review (EOIR) is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings.” The intent to be efficient should not overshadow the need to be fair, and this is only more crucial in children’s claims, considering their youth, frequent need to rely on others, sensitive nature of issues involved, and potential impact on the children in terms of their emotional and physical well-being and case outcomes.

Template Motions: Another possible argument is termination if a child has been granted SIJS but is waiting for a priority date to become current. CLINIC has a sample brief to seek termination of removal proceedings based on SIJS approval that can be requested here. Advocates can also complete CLINIC’s motion request form to seek information from CLINIC and sample template motions to consider using to respond to the scheduling orders.

CONCLUSION

This trend raises the issue and puts a spotlight on the fact that there is a logical gap and bureaucratic jurisdictional dance going on here when there is potential relief before USCIS but not in immigration court. Children who have been approved for SIJS, a form of humanitarian relief, should not be deported while they are waiting for their priority date to become current so they can adjust status, but sadly that often occurs, and it is a real risk children face. In the past, administrative closure often filled this gap but with Matter of Castro-Tum, it is difficult to succeed with this argument outside of the Fourth Circuit (even though it is still important to raise it to protect your record as stated above). With other forms of humanitarian relief such as VAWA, recipients who must wait for a priority date can get deferred action if they are in removal proceedings. It would be beneficial to have deferred action extended to Special Immigrant Juvenile children as well or perhaps for administrative closure to become a viable option again. We say this to acknowledge the difficulty of the situation, seriousness of what is at stake for these children, and problems with the process and system that requires change to protect children.  

An attorney’s response to one of these orders is going to differ depending on the individual characteristics of each case, but it is important to think through the above key considerations as you plan your strategy and response.

If your case is in Texas, feel free to reach out to CILA with a technical assistance question, and CILA can help you strategize for your particular case.

Important: This blog post does not constitute legal advice. It does not capture all potential strategy avenues to take in a case. Attorneys should fully research and consider all issues involved, using their independent judgment. Individuals should seek counsel from an attorney to assist them in their case.

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