EOIR Revises Case Flow Processing in April 2021 PM

On April 2, 2021, EOIR issued a new Policy Memorandum (PM) 21-18, “Revised Case Flow Processing Before the Immigration Courts.” The PM replaces EOIR’s PM 21-05, “Enhanced Case Flow Processing in Removal Proceedings,” issued in late November 2020. If you practice in immigration court, the PM is a must read to understand how the process has changed. EOIR also revised the EOIR Policy Manual, Part II - OCIJ Practice Manual in mid-May in line with PM 21-18. According to Appendix O - Table of Changes, Chapters 3.1(b)(1)(B), 4.15(j), and Appendix K were all revised. In this blog post, CILA maps out some main points from the new PM, key changes, and reminders.

Both PM 21-05 and 21-18 were put in place in the name of efficiency and streamlining some aspects of removal proceedings. Generally, the new case flow processing model applies to represented individuals whose cases are on the non-detained docket in immigration court and greatly impacts the flow of cases through the initial stages of removal proceedings. Policy Memorandum 21-05 moved immigration courts in the direction of eliminating many master calendar hearings in favor of immigration judges issuing scheduling orders and the parties conducting tasks by writing instead of holding a hearing.

The new PM does the same. If a representative files an EOIR-28, Notice of Entry of Appearance as Attorney or Representative before the Immigration Court form, at least fifteen days prior to a master calendar hearing, then the court will issue a scheduling order setting forth deadlines for filing written pleadings and any evidence related to the charges of removability. For cases where the representative files an EOIR-28 less than 15 days before the master calendar hearing, the hearing will be held.

Even though written pleadings were already an option in immigration court, these changes make the use of them more of the norm. As a note, the EOIR Policy Manual, Part II - OCIJ Practice Manual, Appendix K provides a template for written pleadings. As stated above, this Appendix was recently updated in the EOIR Policy Manual so it is important to review the most recent version. The PM also references PM 20-13 and states, “EOIR encourages parties in immigration court to resolve cases through written pleadings, stipulations, and joint motions.” There are times when this may be helpful to reference even in cases that may not be in the new case flow processing model.

Many significant revisions to the timelines and process were made in the new PM. CILA will point out some of the key differences between the April 2021 PM 21-18 and November 2020 PM 21-05:

  • Notably, the new PM provides written carve-outs for many children who arrived unaccompanied in footnote 1, making the new procedure inapplicable to their cases. Footnote 1 lays out types of cases where the new model will not apply. For instance, PM 21-18 says, “this model does not apply to cases that have been appropriately placed on a status docket—e.g., a case of an unaccompanied child with an asylum application pending before the Department of Homeland Security . . . Finally, this model does not apply to cases involving Special Immigrant Juvenile Status; mental competency issues . . . or other vulnerable populations.” Note while EOIR had indicated the prior PM 21-05 did not apply to vulnerable populations, this was not provided in writing.
  • The overall timeline is extended in the April 2021 PM 21-18 comparatively to the November 2020 PM 21-05 with more express allowances for changes per each case’s needs.
    • PM 21-18 generally provides approximately a 110 day timeline prior to scheduling the case for an individual calendar hearing. We have summarized some of the key aspects of this timeline below. See the PM for more details.
      • Generally, parties will be given 30 days from the most vacated hearing date to file pleadings and evidence related to the charge(s) of removability.
      • 20 days: Parties file responses with court.
      • The judge has several options at that point and “will either decide the issue of removability, issue a scheduling order setting the deadline for the submission of additional supplementary briefing or evidence regarding removability, or schedule a hearing on removability.”
      • If the judge finds removability, then the court will issue a written order sustaining the charge(s) of removability.
      • The court will also send a scheduling order with the deadline to submit applications for relief and supporting documents, along with instructions for biometrics. Generally, this deadline will be 60 days from the date of the Judge’s order sustaining the charge(s) of removability, unless otherwise ordered.
      • Upon receipt of the documents, the judge will review the case for trial readiness.
      • 90 days: “Cases that are ready for trial will be placed in a trial queue and scheduled for a merits hearings within 90 days, subject docket availability.”
      • Additionally, “[a]mendments to applications and other supplemental filings must be submitted at least 30 days in advance of the merits hearing, unless otherwise specified by the immigration judge.”
  • The prior PM 21-05 compressed the steps of entering pleadings and submitting applications for relief. Significantly, the new PM 21-18 provides separate time periods for the issues of removability and relief, so advocates have a clear process and ability to challenge the Notice to Appear, if that’s the strategy the advocate is pursuing in a case.

Keep in mind if an advocate receives a scheduling order in a case, that does not necessarily mean the case is in this case flow processing model. Many immigration judges use scheduling orders as part of their practice and can continue to do so in other circumstances than application of this new case flow processing model. Immigration judges continue to have much discretion in how they manage cases, in this process, and an ability to deviate from the model as well, if appropriate. Advocates may want to contact an immigration court clerk to ask if the case is in the case flow processing model if there is a question regarding whether a case is in this model or not. Additionally, if a case is assigned to this case flow processing model when it should not be according to footnote 1 of PM 21-18, then it is important to bring the error to the court’s attention by filing a motion seeking the case to be removed from this case flow model.

Know that PM 21-18 only applies prospectively from the date EOIR issued the memo according to footnote 2. Current outstanding orders remain in effect unless the judge modifies or rescinds it. Older cases can be added to this new case flow processing model, but that requires a case-by-case determination. If advocates wish for a case to be added to this case flow processing model, then they can file a motion making that request.

It is also important to remember to employ motions pursuant to the EOIR Practice Manual in the situation that you need an extension to a deadline, seek to schedule a master calendar hearing, etc. See EOIR Policy Manual, Part II - OCIJ Practice Manual, Ch. 3.1(b)(1)(B), 3.1(c)(iv) (Motion for Extension), 3.1(c)(v) (Motion for Master Calendar Hearing). In fact, PM 21-18 Footnote 1 also states, “[u]pon a showing of good cause, a representative may seek relief from the application of one or more provisions of a scheduling order by motion to the immigration judge.”

In December 2020, CILA wrote a blog post on Strategy Considerations When Responding to Scheduling Orders in Children’s Cases. Even though CILA wrote the blog post in the wake of PM 21-05, the use of scheduling orders in children’s cases began prior to the issuance of PM 21-05. Many of the same strategies and ideas CILA provided in the prior blog post continue to apply, depending on the circumstances of each case.

Overall, the new PM and case flow processing model makes great changes in the flow of removal proceedings. It may be the situation that in many cases it will not apply to unaccompanied children’s cases; however, the PM underscores the common need to seek for children’s cases to be placed on the status docket while their asylum case is being adjudicated before USCIS. Additionally, with Matter of M-A-C-O- and re-determination/de-designation issues frequently arising in unaccompanied children’s cases, there are instances when the case flow processing model may be applied. Additionally, the PM provides reminders to advocates regarding key aspects of practice in immigration court including motions practice and stipulations.