-Immigration Court Part II- Master hearing and Individual hearing
By Attorney Farhad Sethna, Copyright 2007, all rights reserved
In part I of this series, we talked about how a case gets to immigration court and the charging document called the “Notice to Appear”(NTA). In this article, we’ll continue to explore the basics of immigration court including what to expect at an immigration court hearing, responding to the Notice to Appear, and a discussion of the procedures at the master calendar hearing and the individual hearing for removal cases.
Service and filing of the Notice to Appear
I mention this issue because simply having been served with the NTA by the immigration service or the Department of Homeland Security does not mean that your case is now in the immigration court. For that to happen, the Department of Homeland Security must now also send a copy of the NTA to the immigration court. Once the court receives the NTA and enters it into their system your case is “ filed” with the immigration court. I mention this because I have encountered many instances where the Department of Homeland Security (“DHS”) may have issued a NTA to an individual, but never filed that NTA with the court. On other occasions, the DHS may have issued the NTA to the alien, and may have also sent a copy to the court. However, due to a backlog of work or administrative convenience, or for some other reason, the immigration court may never have entered the NTA into their system. Therefore, technically the alien is not yet in immigration court proceedings because the court has no record of the alien’s case. Therefore, if you sent a letter to the clerk or you called the clerk’s office to inquire about the case, or you tried to obtain case information on the immigration court’s case status toll free case system, you would not be able to obtain any information about your case. The telephone system would simply give you a short answer “ your case was not found in the system”.
Here is another little tid bit of information: for those individuals who have been served with an NTA and want to find out the status of their case with immigration court, etc they can dial the toll free number 1-800-898-7180. Following the series of prompts, they will be asked to enter their “alien number”. Upon entering the alien number, the system will give you several choices including the date and time of your next hearing, case status information, case appeal information, and other current information as applicable to that particular case.
Assume though that the case is now filed with the immigration court and that the immigration court has placed the case on its docket. The immigration court will now issue the alien with a notice of the date, place and time of their next immigration court hearing. This first hearing in an immigration case is usually called a “master hearing”.
The Master Hearing
The master hearing is the name given to a hearing that is not a trial of the immigration case, but rather is one or more of a series of hearings prior to the actual immigration court trial of the removal case. A case may have just one master hearing prior to the trial (also called the “individual” hearing, explained below), or they may have a whole series of master hearings depending on the complexity of the case, or administrative difficulty encountered with the case.
What happens at the initial master hearing?
At the initial master hearing, the immigration judge will usually ask the alien, or if the alien has representation, ask the alien’s attorney a series of questions. These questions typically include the following:
• Alien’s name
• Alien’s address
• Whether the alien wants the attorney next to him or her to represent the alien in these proceedings
• Whether the alien understands the language of the proceedings or requires a translator
• If the alien requires a translator, in what language would the translation be needed
Depending on whether a translator might be needed and the court cannot provide one at that time, the court may continue the master hearing until such time that a translator can be obtained. Note that the translators are provided by the immigration court. The alien does not need to provide the official translator.
(As a practical matter, it may be very useful for the alien to have a friend or relative who is fluent in his or her native language to be present during all immigration court proceedings involving the translator and the alien. This is because the friend or relative can listen to the translation being provided by the official translator, and advise the attorney immediately if the translations are inaccurate especially on critical facts or issues. The attorney can then object to the translation, make the correction on the record, and then potentially even request that the hearing be continued until a translator who is more competent or accurate can be obtained).
Once these preliminary matters are concluded, the court will the ask the alien how he or she pleads to the charges in the notice to appear. Many times, the alien will have no defense to those charges. For example, if the alien entered illegally, then there is very little doubt that the alien is indeed removable. However, there may be defenses to the removability, as we will discuss in the next article in this series.
However, there may be instances in which the charges in the notice to appear may be defensible. They may be defensible either because the DHS has misstated the facts, or because the facts do not apply to the alien. For example, in a recent case, the DHS argued that the alien was removable because he or she had not appeared for an interview at the USCIS. However, I able to prove that not only had the alien appeared for the interview, but indeed, the benefit requested by the alien had been approved, and the USCIS had also issued a “green card” to the alien! This clearly laid to rest any allegation that the alien had failed to appear for a USCIS interview, and was therefore now out of status and should be removed from the country.
Additionally, there may be legal issues which can be contested as far as the factual allegations in the NTA. Therefore, it would be very wise if an alien did seek competent counsel, to carefully analyze the NTA, and to make the appropriate pleas to the various charges set forth on the NTA. Note that this is a critical aspect of the case, Failure to raise objections and denials at this point and time may later on prejudice that alien if the immigration judge does not permit the alien to change his plea at a later date.
Sadly enough, the initial master hearing is sometimes the final hearing for an alien as well. This is because if the alien admits sufficient facts to allow the court to make a finding of removability, then the court can indeed order removal at that initial master hearing as well. Alternatively, if the alien admits to facts regarding removabilty and requests voluntary departure, then the court can grant voluntary departure at the initial master hearing as well. In such a case, there will be no need for any future master or individual hearings.
Future master hearings may be set after the initial master hearing if the court requires the parties to perform certain additional administrative isues, or if either the alien’s attorney or the DHS attorney requests a future hearing date in order to secure additional documents, prepare evidence, conduct discovery, or await the status of the pending application with the USCIS. In most instances, the immigration judge will grant a continuance if both the alien’s attorney and the DHS’ attorney agree.
The individual hearing
As stated earlier, the individual hearing is the trial on the DHS’ deportation case. This is the opportunity for the DHS to prove that the alien be removed from the USA. The “burden of proof” in removal cases is on the DHS. The DHS must prove that the alien is removable by “ clear, convincing, and unequivocal evidence”. This is a fairly high standard for the DHS to meet.
On the other hand, if the alien is affirmatively defending his or her removal case, then the burden is on the alien to prove his or her case. For example, the alien may clearly be removable, but may be asserting asylum or cancellation of removal-(these are forms of relief which we will discuss in the next article)-and then the burden shifts from the DHS to the alien to prove that the alien indeed does meet the standard for a grant of asylum or a grant of cancellation of removal, or for some other relief.
The individual hearing is therefore like a trial, with the immigration court requiring submission of exhibits, witness lists, a pretrial statement, or any other motions or discovery prior to the hearing. Likewise, the attorney should be prepared to make opening statements, examine witnesses, produce exhibits, and be prepared to make the case to support their respective client’s position. This is why it’s important to have an attorney who is well versed in immigration law and is also a skilled litigator who is not afraid to make objections, introduce evidence for the record, and preserve his client’s rights, both for the individual hearing as well as for any potential appeal.
Some courts do not have an immigration judge at the court location. Rather, the case is heard by an immigration judge at the remote location usually by televideo (telephone and video camera connected to a television set) or by speakerphone. In those cases, it may be useful to make an objection to the televideo hookup on the basis of the fact the evidence cannot be presented appropriately and the judge has no real way to view the demeanor and character of the witness in person. Alternatively, the alien in proceedings may want to incur the additional expense of traveling to the scene of the hearing with his or her attorney in order to have the hearing in person before the immigration judge. This is especially useful in asylum cases, where sometimes it is very hard to have a three way conversation between the judge, the translator, and the witness, in addition to having the attorney for the alien and the attorney for the government cross examining the witness. This three-four-or even five way conversation is very hard to follow by televideo hookup.
In conclusion, immigration court is a serious matter. The right of the alien to remain in the United States perhaps with his or her family, loved ones, business, investments, etc hang in the balance. It is critical therefore to have competent legal representation throughout the immigration court stage. Competent representation might cause the DHS to terminate the case voluntarily right at the outset, or at least preserve and protect issues for the alien that can be raised at trial and if necessary brought up again on appeal.
In the next article, we will explore some of the types of relief available to aliens in removal proceedings as well as immigration court strategies and defense procedures.