The End of Master Calendar Hearings?
To kick off December, the Executive Office for Immigration Review reminded us of the havoc the Trump Administration can continue to wreak in the closing days of this presidency. In a newly released policy memo, Director McHenry, has impressively complicated the lives of attorneys and respondents in the name of making removal proceedings more efficient. Here's the rundown:
Lies, Damned Lies...
EOIR based this memo on a number of straight up lies. Director McHenry makes the claim that most respondents in removal proceedings have representation, especially in asylum cases. In fact, the memo claims nearly 85% of respondents had representation in 2020. This is based on unpublished numbers maintained by EOIR and has not been verified by any outside observer. In reality, large percentages of respondents have been unrepresented over the course of the last two decades and access to counsel remains a challenge confronting the immigration courts and their stakeholders.
The memo also claims removability is not contested in most cases, and "representatives frequently waive the reading of charges and the giving of various advisals." The idea being that for most non-detained respondents with representation, there is no need to hold a master calendar hearing. However, EOIR cites no statistics for this claim and, anecdotally, I am not sure it holds up. Our office certainly doesn't admit removability in every case. Some attorneys refuse to ever admit removability. In reality, it's a case-by-case thing. There are some matters where the client doesn't get anything out of contesting charges, sure. There are other cases where we need to hold the government to its burden or we need access to information in the government's file and the only way to get it quick is to contest removability and force the government to prove it.
Regardless, from the outset, this memo is framed by EOIR as solving a problem that doesn't exist: pointless hearings.
The New Memo Doesn't Apply to Everyone
The model will not apply to cases of detained respondents or unrepresented respondents. It will also not apply to cases that have already been placed on a status docket. This might include pending SIJS applications or unaccompanied minors with asylum applications pending before USCIS. Immigration judges also maintain discretion to deviate from the model as appropriate.
Master Calendar Hearings Now Discouraged
Hearings scheduled solely for the purpose of filing an application or scheduling a trial date are no "disfavored." Where a respondent is represented by counsel and an entry of appearance via Form EOIR-28 has been filed at least 15 days before a master calendar hearing, that hearing will be automatically vacated and a scheduling order will be sent out to the parties.
If the EOIR-28 is filed less than 15 days before the master calendar hearing, the hearing will move forward as scheduled and the respondent and counsel are required to attend. Efforts to deceive an immigration judge regarding a respondent's representation may now constitute grounds for disciplinary action.
New Scheduling Orders
While immigration judges have always had the authority to issue scheduling orders (some in our neck of the words have made generous use of them over time), these new orders mandated by the memo will set a deadline for (1) the filing of written pleadings; (2) any evidence related to the charges of removability; and (3) any applications for relief. This deadline will generally be 45 days from the date of the vacated hearing, but the specific immigration judge retains discretion to deviate, so it could be anything in theory. Failure to meet this deadline will waive eligibility for any relief from removal.
Once the scheduling order is complied with, the immigration judge will schedule a merits hearing if relief is requested or another order resolving the case if there is no dispute between the parties. A second scheduling order will then be issued setting deadlines for the filing of any motions, briefs, or supporting documents prior to the hearing.
There are so many issues here, and so many of them are so obvious that I am certain I am missing many of them. This is not an exhaustive list. It is also going to be difficult to know for sure how this will impact proceedings until we really see it in action, something hard to do when most hearings are cancelled due to the pandemic. There is also the 900 lbs. elephant in the room: the new administration may just ball this memo up and throw it in the trash. Here are some of my initial thoughts.
Maybe it won't be so bad. In the memo itself, EOIR acknowledges this new model "presents opportunities for gamesmanship." In other words, creative lawyers (of which there is an endless supply) may find ways to use this new model to their clients' advantage. This has certainly happened with other ridiculous policies announced by EOIR since 2017. I can already think of a couple of ways to use this policy to my clients' benefit in some cases. Selfishly, there may also be benefits to someone like me who does not live within 200 miles of any immigration court. Driving to Memphis, sometimes several times per month, the last few years has not been kind to my budget.
Immigration Judges are individuals. Despite using clear periods of time like "45 days," this memo still leaves a lot of discretion to individual immigration judges in terms of how to implement this new model. Are we going to see a situation where some judges give us 45 days to comply with the scheduling order and others 15 or 90? This is a real possibility and it would make removal defense hard to manage with so many moving deadlines going on at the same time, especially on the front end of a case where we don't typically have to worry about deadlines as much.
Sometimes there is good reason for delay. I think one of the most difficult things about this memo has no real basis in the practicality of its application. It's the condescending tone. That's something I really won't miss about this administration. This memo assumes representatives try and delay proceedings because delays are always in our clients favor. In reality, most of the time there is a good reason for delay. Maybe we get hired last second or we're human beings and have a number of different priorities going on at the same time and it would be better for everything to move those around. Frequently, we're waiting on USCIS to adjudicate a benefit outside of the immigration judge's jurisdiction that may have a huge impact on whether or not the case ends in a removal order. The idea that I, as an "officer of the court," am merely attempting to delay every case for illegitimate reasons is highly insulting and ignores the reality on the ground.
Our workload up front just got a lot heavier. I think this is obvious. Maybe it's not. We're going to have to manage a whole lot of deadlines at the beginning of the case and at the end. How that plays out exactly remains yet to be seen, but let's just hope it doesn't become overwhelming.
This policy, coupled with whatever nincompoopery this administration makes up over the next few weeks, is going to make the next few months interesting and stressful. It's also an additional reminder among near constant reminders over the last four years that it is way beyond time for an independent immigration court. Our immigration judges deserve independence so they can run their courtrooms the way they need to based on the reality in front of them. Attorneys, both private removal defense attorneys and government attorneys, deserve some insulation from changes in administration and other political considerations attempting to wreak havoc in the system. Knowing how the system works and how to operate within that system is a lawyers greatest asset and its been completely undone since 2017. Most importantly, respondents in removal proceedings (and the United States) deserve justice. There is no such thing as justice when the term is redefined to fit whatever the administration that happens to be in power at the time wants it to be. #freethecourts