Navigating Immigration Court Written Pleadings

What are Written Pleadings

In immigration court, both master and individual calendars rely heavily on written pleadings. Written pleadings are formal documents in which parties present their positions about a case. A party’s position is expressed through specific claims, which are also known as pleadings. Those pleadings include admissions, denials, and denials of knowledge or information sufficient to form a belief about the truth of an allegation. Cases often start with the filing of initial written pleadings. Responses and answers are future pleadings in the same case. The filing of pleadings is governed by rules. A party has a limited time to respond to pleadings. Immigration judges regularly provide parties with deadlines for filing written pleadings. They may also provide assistance in the filing process by allowing pleadings to be filed at the end of hearings or by email. A party’s failure to follow those directives may be interpreted by judges to indicate that squabbling over rules takes precedence over dealing with the complexities of a case .
If a party responds to a pleading, it tends to attract attention. Responses must be timely and comply with rules. If a party does not respond to a pleading, the other party will likely interpret the failure to respond as evidence that the complaining party believes it has won the argument. In immigration court, a party generally has to respond to a pleading within 10 days. Writing is critical because immigration court hearings assume a lesser role in speaking. Parties should be prepared to meet and respond to misinterpretation or distortion of pleadings by the opposing party that may be intended to alter the timeline or shift the focus of the proceedings. Being prepared for those distractions requires good pleading skills. Opponent distractions that could be avoided or resolved through good pleading is a waste of everyone’s time, and a frustration to good advocacy. Good advocates understand written pleadings.

Elements of an Effective Pleading

The structure of an effective pleading is critical to its success. As mentioned above, pleadings in the immigration context (formal motions or responses presented to the immigration court) must be made in writing, unless the court specifically allows for oral pleadings. Motions before the court are generally made to avoid a delay by oral request. While other motions such as evidentiary motions may vary slightly in their structure and content, the general substantive components for all pleadings in immigration court are the same. The first component is the introduction. The introduction should always include the case caption, which lists the court, the names of both the respondent and the Department of Homeland Security representative, and the date. This is usually in the upper left corner of the document, but it is always subject to the judge’s preference. The date and time of the hearing shall also be included. This section is also where the party names the specific type of motion (e.g., MOTION TO REOPEN) and what it is being made on the basis of. For example, a motion to reopen based on ineffective assistance of counsel will actually have two components: a final order and the ineffective assistance of counsel. Both facts must be addressed. In the case of essentially moot arguments, a succinct, short, declaratory sentence will suffice. The second component is a statement of the factual background. This tells the Judge what happened in the past in the respondent’s case and why they won or lost. For example, if the respondent lost, the pleading should be titled "MOTION TO REOPEN, IN THE ALTERNATIVE, A MOTION TO RECONSIDER" and should read, in their summary, "Respondent lost the case on May 1, 2013, because he failed to appear for his I-751 hearing." The third substantive component of the pleading is the legal argument. This is where the respondent should explain, no matter what type of motion is being presented, the basis for error. It is essentially the respondent’s opportunity to cite statutory authority (either Immigration and Naturalization Act ("INA") authority or authority based on Federal Rule of Civil Procedure Rule 60(b)) or cite case law that supports the respondent’s argument for the court to grant the requested relief. Citing a case like Carachuri-Rosendo v Holder, 130 S. Ct. 2577 (June 14, 2010), or Padilla v. Kentucky, 130 S. Ct., 1473 (March 31, 2010), sometimes make all the difference in a successful outcome. The fourth component is the prayer, which basically asks the Judge for what he/she wants. It should read something along the lines of: Respondent respectfully prays this Honorable Court grant this Motion to Reopen and dismiss the underlying order, and grant the requested relief as deemed just and appropriate. Pleading before the court are formal documents and it is essential that they are completed promptly, clearly, and consistently. Unfortunately, our clients’ lives hang in the balance in every pleading. These consistencies help ensure the Judge understands what the client is asking for and why.

Key Legal Authorities

At the outset of any discussion about written pleadings in the immigration court, it is useful to review the applicable legal frameworks and guidelines. For this exercise, we can use the federal regulations, the Immigration Court Practice Manual, the rules that govern every immigration case, and the general principles that guide every court proceeding.
The most pertinent authority is the regulations, specifically, the Code of Federal Regulations (CFR). Specifically, 8 C.F.R.§ 240.10 contains a two page overview of the requirements for filings in Deportation and Removal proceedings. There is also a helpful discussion about the filing of written pleadings in Immigration Court in the Immigration Court Practice Manual, Appendix A. The Court is required to adjudicate all issues presented "on brief" and the legal citation requirements include an exhaustive list of citations that one could be quite creative with.
Thus, the law requires that any written pleadings in the Immigration Court must be served on "all parties" and "filed" with the Court at the same time. There can be no "brief" afterthoughts; the relevant materials must be a comprehensive argument as to why your case should be granted the relief you are seeking. Immigration Court briefing is not like the briefs you make for a meeting on Monday to discuss the court’s decision on Friday. Instead, the briefs you file with the Immigration Court are the equivalent of a summary judgment brief in district court, where you must make all the arguments you have in order to avoid being foreclosed from raising those issues in later proceedings.
Because the briefs should be all encompassing, it is difficult to convince the Court to allow you to file a supplemental brief after the hearing has proceeded. Even more difficult is convincing the Court to allow an Order of Voluntary Departure after the hearing has concluded: the Court will want to see why you failed to raise it when it mattered.
And above all else, if you are filing a brief with the Immigration Court, you must avoid filing a brief more than 25 pages long without first requesting prior leave of the Court. There are many other restrictions for valid filings, but the bottom line is that the burden is almost always on counsel of record; the burden to comply with every requirement in the CFR or Practice Manual is strictly enforced.
Immigration Court procedures and rules are not merely suggestions: they are orders of the Court. To this end, they impose legal duties that are enforceable through the appellate courts. While it can be tempting to dismiss them as technicalities or proof of bad faith prosecution by opposing counsel, it is important to remember that even the smallest typographical errors can prompt the Court to deny a well-founded application for as long as two years or more.

Common Pitfalls

Mastering Written Pleadings in Immigration Court
Immigration attorneys and practitioners often overlook the importance of properly completing written pleadings for the court. Unfortunately, some experienced attorneys and practitioners lazily re-use previously-prepared and unintelligible notices to appear and/or pleadings. Written pleadings must be correct written pleadings. Immigration court practitioners can not allow laziness to cause unnecessary delays and/or dismissal of merits hearings. One of the most common mistakes made by practitioners is failing to complete and serve upon the government a Form EOIR 33 (Alien’s Change of Address Form). Practitioners sometimes forget to file and serve the Form EOIR 33 on behalf of their clients and later try to use this error to seek a continuance of a final merits hearing. This form is available on the DOJ EOIR website to download, print, and file with the court. Immigration court practitioners often misspell the names of their own clients and/or the names of their government adversaries. The judge reviews the spelling of the parties’ names during the merits hearing so this mistake will not go un-noticed. Instead of re-using pleadings with misspelled names and/or abbreviations like "Pet"., "Respt". etc., practitioners should reprint and re-read pleadings prior to submission to the court. Practitioners should be especially careful of spelling names wrong on Form EOIR 28 Notice of Entry of Appearance of Foreign Attorney. This is a common error and leads to filings being rejected by the court for having wrong spellings of the parties’ names. Some practitioners do not file and serve their client(s) with a copy of their motion to continue a final merits hearing or other motion to the court. In these cases , the court will not know of a request for a different or later final merits hearing date. The court will think that the matter is ready for final hearing. The court will then wait readily available time for the hearing. On the day of the scheduled merits hearing if the hearing is not ready the court will issue the dreaded order of removal. Practitioners should remember that the court staff does not know of attorneys and their clients or of readiness for final hearing unless the attorney advises the court in a motion, correspondence, and/or an appearance at the scheduled hearing. Some practitioners are not accustomed to our U.S. system and do not complete pleadings thoroughly for submission to the court. For example, when filing an appeal to the Board, practitioners must also file a brief in support of the appeal. Some practitioners do not file briefs and must file motions to file their briefs late. These motions delay appeals. Some practitioners do not file an application for waiver of filing fees with their brief submission to the BIA. The BIA sometimes dismisses appeal briefs for having no filing fee and the missing filing fee also delays the submitting of a brief. Other practitioners have missed deadlines for submitting brief to the BIA or for submitting applications for Waiver of Filing Fees to the BIA. These mistakes delay the considerations of appeals at the BIA. This results in appeals taking longer to be adjudicated.

Best Practices for Filing

As the old adage goes, "time is of the essence." Despite the clear connotation of great importance to timely filing written submissions with the Court, it seems that very few respondents comply with this maxim when submitting written pleadings to immigration court. In my example above, what would happen if the respondent submitted their brief one day late, eight days late, or even fifty days late? The standardized forms governing motions in both Immigration Court and the Board of Immigration Appeals impose significant restrictions on motions filed outside specified deadlines. Even when an individual attempts to file something timely, late filings may not be considered at all in certain situations. Lateness may result in a complete rejection of an individual’s request for relief or even worse, render their case subject to expedited hearings. I have seen numerous individuals drastically affect the outcome of their case and the outcome of their appeal by filing a short written pleading just a day late with no justifications given.
When writing a brief for immigration court, there are no extensions. Hours or days can be given to an individual facing deportation, however, some courts may go so far as to state that briefs not received by a certain date will not be read and considered when making a decision on an individual’s case. Similar policies are found at the Board. Instead of giving extra time for late filings, the Board may instead outright reject a notice of appeal that is received after the deadline thus rejecting any late submitted pleadings. If you can’t call and ask for an extension, and you aren’t given an extension, what do you do? Make sure your pleading is as perfect as possible when you send it in.
To ensure that your pleadings are received in a timely manner and acknowledged by the Court, I always recommend that my clients send their pleadings via certified/return receipt mail, not simply regular mail. Someone at the Court, whether it is a clerk or the judge herself, must personally accept the submitted pleading and sign for it when they receive it. This allows the sender to track the mailing from the moment it leaves their hand from the post office to the moment it is received by anyone at the Court thus acting as a record for the Court that the individual has attempted to submit the pleading to the Court on a specific day and time.
You can also try to send your brief directly to the Judge. However, only certain judges may allow you to do this. Most judges expect that you follow court rules, and thus expect you to serve your pleadings on the trial attorney and/or chief counsel within the Enforcement Office who is responsible for your case. Following this strategy may allow you to ensure that the right people are in possession of your pleadings, and that they are reaching the Court through the proper channels.
I also recommend sending in several copies of the same pleading, yes several copies. This is not the United States Postal Service, and no one is going to tell you that they lost a page of your submission. Therefore, it’s important that you send in several copies of the same page, and I always make sure to submit a back-up copy in case the primary is rejected for any reason.
Finally, I recommend that you set up a grid, chart, or plot in your calendar or diary to remind you of every important filing deadline that you have. In this way, you can ensure that you are filing your papers with the court on time and, if necessary, request extensions in advance. Having a record of your motions, submission, and prior applications may also be helpful in case the judge requests a summary of your prior filings with the court or the history of your case, as judges may sometimes request such a history to review before issuing their decision.

Pleadings and Their Effect in a Case

The impact of the masterful written pleading can often be the deciding factor in immigration court. Take for example the written pleading of the Respondent in Matter of R-A-C-, 21 I&N 953 (BIA 1997) in which the BIA grants CAT protection. This granting of CAT protection is based in part on the masterful pleadings of both the Respondent and her attorney, both of which highlighted the harm that the Respondent had suffered, along with a very good law and an equally good ASF and argument, as well as oral testimony that was (seemingly) clearly honest and sincere. In this case the BIA found that Respondent had been tortured, and as such, granted her CAT application. All of this is made even more impressive by the fact that there was no order granting the Respondent asylum.
Fast forward then to a case where the Respondent was ordered removed, and it was affirmed by the BIA. In her dissent, Judge Granger noted that the Respondent had established that the Honduran police had beaten him, but ultimately affirmed the decision below. With all the facts put into perspective, Judge Granger’s page long dissent gives us a peek as to why so many people felt a grant of CAT protection was likely and rare from the BIA at that time. The dissent found that if you were to review only the facts of this case, as alleged in the written pleading (MF), you would find that the Respondent was in fact tortured in Honduras, citing that "given the circumstances of the interview and the manner in which Officer Elyce interrogated Castro, he was not able to articulate the details of his beating," and that, "indeed, Castro was emotional and cried during parts of the questioning due to the intensity of his emotions regarding where he had been and what had happened to him." In her dissent Judge Granger continues noting that in addition to the torture that the respondent had suffered; he also had previously filed an asylum application noting "that he was targeted because he was a member of a labor union," an organization that "has long been a target for violence in Honduras." However, the dissent also noted (in an attempt to highlight the fact that torture occurred) the proposed organization that Governor’s Office of Special Agent has previously drafted. This organization has specific information regarding the torture and mistreatment of those who belong to any opposition, including opposition to the current occupant of the presidency.
Given this information, plus the decision of the Ninth Circuit granting CAT protection, perhaps Judge Granger’s conclusion was indeed correct. The persuasive authority of the written pleading as to why her opinion, along with those of the Ninth Circuit, were not accepted by the majority in the BIA, may have been due to the masterful written pleading of counsel for the submitters and the government, as well as the same old same old conclusion of the BIA . Now, fast forward to an unpublished BIA case wherein a written pleading was drafted on behalf of several applicants for withdrawal of removal. In this case the BIA noted that the applicants actually had failed in their appeals for asylum, withholding of removal, and relief under CAT. The BIA concluded that during a consolidated hearing, the DOJ attorney, had presented a very "clear and persuasive" closing order and consequently the BIA, in their decision regarding the withdrawal, stated that the applicants "admitted that they had engaged in and submitted false testimony and ulterior mechanisms to seek illegal entry into the United States." Citing a previous BIA case noting "the full details" of the previous case, the BIA ultimately determined that "pursuant to 8 C.F.R. § 1003.2(d),[the BIA was] not persuaded that withdrawal is warranted. Thus, the BIA made no mention of illegal entry and the government’s position regarding illegal entry was used to affirm the decision of the immigration judge. The withdrawal of removal was denied and the finalities were affirmed.
In both of these cases, the pleadings are very important in imparting wisdom to the different various decisions read herein. In the first case anonymous, the decision by the BIA, underlines why it is so easy to find that the BIA reached a decision that would have been granted asylum had there been a valid claim, but did not reach a decision of ECHR protection. The facts allowed for a very simple argument that was backed up with CAT protection from the Ninth Circuit, as well as the BIA’s own dissent. This made it very simple for the BIA to give CAT protection to the respondent. Therefore, the articulate pleadings of both counsel for the applicant on appeal, and the government made it easy to come to their decision of CAT protection. On the other hand, the withdrawal of removal decision makes it even more clear that the BIA decision was based upon the characterization of the position. In this reasoning, only after concluding that the brief submitted by the applicants was very nonpersuasive in regards to the government’s arguments did the BIA affirm the decision of the IJ. Therefore, in regards to current cases where the BIA’s own decisions (on appeal) say otherwise, there is more than meets the eye when it comes to certain decisions that are delineated based upon an articulate and masterful written pleading. Therefore, it is important to understand how these two decisions (published and unpublished) provide insight into how the BIA views a case, as well as how important the written pleadings can be.