© 2013 Attorney Farhad Sethna
In previous articles, I have covered topics such as how to recognize a difficult immigration judge, handling a difficult immigration judge, and preparing a witness for immigration court. In this article, I will discuss opening and closing arguments in immigration court.
As any attorney knows, the opening argument is sort of like a roadmap for the court. However, some immigration court judges want counsel to be very brief in their opening remarks. They may simply want counsel to enumerate the forms of relief that are being sought, and in asylum cases, to provide some very brief explanation of the basis for seeking Asylum, Withholding of Removal, or Withholding of Removal Under the United Nations Convention Against Torture. In cancellation cases, the court may simply want the attorney to indicate what the basis may be for seeking cancellation.
The court will also address other preliminary matters such as any stipulation between the parties, corrections to the applications, any proffers of evidence, and evidentiary submissions.
Finally, the court will go through the exhibits that have been submitted, and mark them for purposes of the record. Typically, the court might start with the NTA (Notice to Appear) as Exhibit “1” and then go on through the other exhibits such as applications for relief, documentary evidence, and filings by the DHS and the respondent.
Closing arguments are again at the discretion of the court but typically, most immigration court judges will permit closing arguments, even if they are brief.
In the closing argument, you will reiterate the key points of the witness’ testimony. You want to connect that testimony and any evidence to the law. For example, in an asylum case you should try to connect the persecution that the witness has suffered with the enumerated grounds for asylum. In a cancellation case, you should try to connect the elements of the cancellation (residency in the USA, good moral character, and exceptional and extremely unusual hardship to US citizen or Permanent Resident parent, spouse or child) with the evidence that has been introduced. You may also want to paraphrase and summarize some of the more pertinent case law in your circuit as well as any precedent BIA decisions.
While closings should typically be short because immigration judges tend not to have a lot of time for such niceties, most immigration judges will at least consider and ask for short closings. Closings are a helpful summary of the testimony so the judge can assimilate the facts of the case and correlate them with the applicable case law.
Some judges take on a questioning role during closing, forcing counsel to prove their point or to discuss case law that might exist either in support of or against counsel’s proposition. Judges will do this typically to give counsel a chance to be able to rebut their suppositions. In cases where you simply have no case law that supports your proposition, or where your case is weak, you are better off admitting that you don’t have supporting case law or a strong set of facts, but that since relief may be in the court’s discretion, the court still has the leeway to look at the totality of the circumstances and the evidence presented and determine whether the respondent meets the necessary standard for the relief that is sought.
In conclusion, while opening and closing arguments may not seem to be very important in the immigration context, they are still essential parts of the individual hearing. This is especially true of the closing. Tying-in the evidence and the supporting case law and correlating the same with
the statute or regulation is immensely helpful in convincing a judge of the merits of your case.
Copyright, Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.