Thread by @MatthewHoppock

Live tweeting the EOIR's "case flow processing" information session. The memo that kicked this off is here. It's pretty openly unlawful, but here we are. justice.gov/eoir/page/file…

Opening with Gail Montenegro as moderator. First announcement: This process does not apply to unrepresented respondents (that's what the memo says too). Principal Deputy Chief Immigration Judge (acting) Mary Cheng will do an overview and then they'll do a Q&A.

Judge Cheng was reading a statement that repeats some of the language from memo. But Judge Cheng's audio just cut out.

She summarizes the rule: for MC Hrgs in non-detained cases, when attorney enters an appearance at least 15 days before the hearing, they'll cancel the hearing and order filing of written pleadings and applications. Deadline is up to the immigration judge.

Still reading from the memo.

Now they're going to answer questions. 1. Why is EOIR changing this case flow processing? A: trying to improve efficiency while maintaining due process.

These aren't questions by people on the call. They're pre-prepared questions and answers. Question 2: Why just for people with attorneys? A: Because people with attorneys waive lots of the rights guaranteed by the regs and normally their MC hearings are just for filing apps

Q3: What if rep files an entry of appearance less than 15 days before the hearing? Then the hearing won't be cancelled and they'll still have to appear.

Q4: When will the "advisals" occur? A: she says IJs will continue to provide the required advisals at the hearing (what hearing?) and will also serve paper notices by mail. To be clear 8 CFR 1240.10 requires oral advisals.

Q5: When removal is contested, filing the app would be premature and waste court and other resources. So does the 45 day deadline apply where removability is contested? A: EOIR says yes apps will be due even if removability hasn't been conceded. Says file a motion if you want.

Q6: How are cases remanded from BIA to be scheduled? A: cases remanded from the Board won't fall into this process because this process is only for master calendar hearings (that makes no sense)

Q7 repeats Q5 - Answer - if removability is being contested, go read the practice manual that says you can file a motion if you want to.

Q8 repeats Q5 and Q7 and adds it makes no sense to apply for relief if you're not removable and would sabotage your arguments on removability. A: same answer

Q9: At LA every judge has a different written pleading form. Will EOIR issue a standard form? A: refers to the standard at Appendix L of the practice manual for standard written pleading (no, I will not be using that form).

Q10: What does the memo mean by "unresolved issues"? A: not sure what this means.

Q11: Y'all memo says try to get stipulations from DHS, but DHS consistently refuses to stipulate to anything ever. So what gives? A: Judge Cheng says both sides are supposed to cooperate.

Q12: Does this process apply to detained unaccompanied minors? A: No, this process does not apply to any unaccompanied minors or "vulnerable populations."

Q13: If a respondent doesn't concede service and doesn't waive reading, will the court hold a MC hearing to resolve those issues? A: repeats that attorneys are allowed to file motions, every case is "unique," but no real answer to this question.

Judge Cheng adds this to her answer: If your response to the scheduling order says you don't concede service and don't waive reading, the judge is also allowed to hold a hearing without a motion. But they don't have to.

Q14: is this required for IJs to comply with? A: yes, it's a nationwide policy and judges are required to comply.

Q15: What should attorneys do before the MC hearing, when should they expect to see the hearing vacated, and if that hasn't happened should they file a motion asking that the hearing be vacated? A: rule applies across the country, so you'll start seeing it in 9 courts mentioned

Second part of answer - no idea when this will be implemented, depends on the court apparently. Some implementing before others. But if the hearing isn't vacated, you still have to appear. Can also file a motion.

Q16: does this apply to MPP? A: MPP cases aren't even being held, and most MPPs don't have attorneys. That doesn't answer this question, but that was the answer.

Q17: DHS is supposed to prove removability. Why are we supposed to enter written pleadings *and* pay application fees when DHS hasn't established removability? A: most people with attorneys waive removability and concede everything, so that's why we did this...

Q18: does this apply to NYC courts? A: Yes, it applies to all Master Calendar hearings.

Q19: What about cases for detained people who are granted bond, released, and then venue is changed, when they had an attorney when they were detained? A: No answer. "we'll have to see."

Q20: After submission of written pleading, IJ may only order resolution or schedule a hearing. Does that mean IJ can't order removal through this process? A: No. If removability is determined through pleadings the IJ can order removal.

Q21: How can the court file a 589 if the court hasn't even designated a country of removal yet? Great question (the regs say application for asylum follows designation of country). A: This just allows cases to be heard faster, doesn't answer the question.

Q22: If scheduling order asks for supporting documents, will the IJ adjudicate just based on the documents? A: File a motion.

Q23: If moving to terminate and no other forms of relief to submit, will there be a contested removability hearing? A: why would they move to terminate? Also, if motion to terminate and has proof/documentation to support it, judge could issue a decision on the paper (??)

Further answer, judge could schedule a hearing on the motion if they want.

Q24: How do you get a stamped copy of applications now that we aren't filing them in court? A: ask the court administrator to send you a copy.

Q25: problems with filing EOIR-28 entry of appearance through the portal. A: you can use the portal or "file at the window"

Q26: Will upcoming masters automatically be cancelled if you have already entered an appearance? A: Yes and no. For cases who already have attorneys, all will be vacated and scheduling orders will be sent. But some courts aren't implementing yet. So may be delayed

Q27: What does it mean a dispositive order could be issued and the scheduling order vacated? A: The scheduling order will require filing of certain documents. If the judge can make a determination based on those documents, he or she will do that.

Q28: Where first MC has already happened, how will this process work? A: That depends on the posture of the case. If pleadings have already been taken, you will "possibly" get a scheduling order for the relief application.

Q29: MC is useful for discussing case posture and advising IJ of collateral matters like pending I-130 or U visa. A: file a motion or "submit the information to the court by paper"

Q30: will this rule apply to DHS too? A: Yes. [But there's more to this, I might come back to it]

Q31: applicants have a year to apply for asylum, how can you require it within 45 days? A: doesn't understand the question.

Q32: Will it be noted in the ROP that there isn't a pro bono list for some courts, and will EOIR be updating the lists? A: Every case will receive a "pro bono list" with the hearing notice. If person isn't represented, IJ will give them a pro bono list at the hearing

Q33: How can we schedule hearings - at MC's we tell the judge when we're available and we find a date that works for everyone. A: file a motion if you want to move the hearing from the date the court picks

Q34: Why not have a rule that says what IJ is supposed to do if we contest removability and don't want to file relief apps yet? A: doesn't understand the question.

Q35: Why have ACIJs been issuing the orders, rather than the judge assigned to the case? A: That's different. This new case flow process went into effect on December 2. That was a project we started in August where judges issue scheduling orders...

Where appeared in court and were supposed to file relief applications but couldn't file because closed for covid. The project was to send scheduling orders to those people to avoid unnecessary delays. Requesting necessary relief apps.

that "project" has never been revealed before, by the way.

Q36: Judges required to schedule a hearing when counsel requests one? A: Depends on the independent judge's discretion on how to decide to rule on the motion you file. So file a motion.

Q37: How will they facilitate for pro bono attorneys given OPPM 08-01? A: this applies to anyone with an attorney. So if the person becomes unrepresented it doesn't apply to them anymore. [so fire your pro bono attorney?]

Q38: what about where relief app has been filed and/or heard and only on the MC docket for more documents? A: scheduling order will give a date for documents.

Q39: The court said it would set a hearing for "unresolved issues" what does that mean? This is the question she said she didn't understand before. A: Still don't understand the question.

Q40: Does it apply to cases already filed, or just to new cases filed since Dec 2? A: It applies to all Master Calendar cases, nationwide.

Q41: Still possible to file EOIR-28 in open court on the day of the hearing? A: Yes

Q42: Re the "vacate" notices for master calendar hearing, we will get a written notice, not a phone call, right? A: Yes, you won't get a phone call. You'll get written correspondence from the court.

Q43: Only applies to the 9 listed courts, when will it expand? A: It's in the 9 courts now but it's for "all the immigration courts." Each court will reopen in phases. Bc of covid, some courts are in Phase 1 which doesn't include MC Hearings. But they might still send orders.

Q44: Does DHS have to apply with filing its evidence in 45 days too? A: DHS has to comply with what the judge orders...

Q45: What about when a person isn't applying for relief from the court but has an I-130 or a U Visa. A: Don't forget about the status docket! Just ask to have your case transferred there. Here's the memo on that. justice.gov/eoir/page/file…

Q46: So if a UAC is on a non-detained docket they're still going to have a master if they're represented? A: This process doesn't apply to any UACs (by the way, that's not in the memo).

Q47: Where in the practice manual does it say we can file a motion for "an all-purpose hearing"? A: Don't know the cite, but you can move for a hearing.

Q49: Will courts be adopting e-filing? A: the courts that are closed have email filing. As we move toward ECAS all filings will be electronic (that's not entirely true)

Q50: We need a stamped copy of EOIR42B to file the work card application. How do we do that? A: Make a written request to the court. [that's going to create a ton of work for court staff]

Q51: Can the IJ pretermit applications for relief under this rule? A: Won't answer, says would have to speculate. Shocked they didn't answer this question.

Q52: IJs take forever to rule on fee waiver requests, how will that work? A: That's a comment, not a question. Thanks for the comment.

Q53: How long do we have to wait to know if the case will be vacated, and also does this waive client's appearance at MC? A: "yes to both." When hrg is vacated, you'll get a scheduling order from the court.

Q54: If it doesn't apply to "vulnerable populations," does it apply to non-detained UACs and family units, who else doesn't it apply to? A: Attorneys should identify for the court if a person is vulnerable and tell the court, like cognitive impairment, etc.

Q55: Is EOIR encouraging DHS to stipulate, given that the memo says they're supposed to? Are DHS Attorneys receiving guidance? A: Don't know what guidance DHS is issuing, but all IJs encourage everyone to stipulate.

Q56: If EOIR-28 is filed more than 15 days and no vacate notice is received, do we have to assume it's not vacated and go ahead and appear? A: Yes. Go ahead and show up. Or call the court to find out.

Q57: DHS has to prove alienage. IJ can't move forward without jrd. Once DHS establishes alienage, burden shifts back. This process relieves DHS of its burden, right? A: repeats that this is just about efficiency.

... this is for people who are ready to concede removability and just want a hearing. [but they're applying it to everyone]

Q58: Will respondents still have to attend the hearing? A: If hearing is vacated, respondent doesn't have to appear in court. If EOIR-28 isn't filed before the 15 days, everyone still has to appear in court.

Q59: What are the nine courts where the process is in place now? A: Boston, Buffalo, Cleveland, Hartford, Honnolulu, Imperial, Las Vegas, Newark, and Salt Lake City.

Q60: Will the script in the Q&A be made available? A: No [but it was just a reading of main points from the memo, mostly verbatim, so read the memo]

Q61: Will it apply to non-detained UACs (since the memo doesn't say that)? A: This is for represented non-detained respondents, so if the case is identified as "vulnerable populations" they will not be included.

Q61: What about relief that's not available yet, because I-130 approved but priority date isn't available yet? A: If you have a pending I-130, move for status docket. For cases waiting on priority date, it depends on if the visa number was current and retrogressed...

Didn't fully answer the question.

Q62: some courts aren't even reopened yet. In those courts will this start? A: Yes, some of those courts that haven't reopened yet, you may start getting scheduling orders.

That's a wrap.