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Start →HOW TO SUPPLEMENT THE RECORD AFTER THE MERITS HEARING If you join the case a) after it has already begun, 1) you must FOIA a) for a complete copy of every agency’s file (see above). You should assume that a) whatever files i) your client has are incomplete. If a) you do not have time to wait for the FOIA response and b) the file is still at the local immigration court, 1) consider asking the court a) if you could come and review the court’s file. Once you have the record, 1) you should dispassionately a) examine the administrative record and b) ask yourself i) whether you have documentary evidence A) in the record B) to support the claims I) that you want to assert in the proceeding. In many cases, critical evidence or arguments will be missing. If you are still before the agency, 1) you have several options: ƒ a. IF i) A legal argument has not yet been presented to the agency, ii) but the record contains the factual information for the claim: Consider filing a motion to reconsider. A motion to reconsider uses the existing factual record A) to make a new legal argument I) that was overlooked either (a) by (i) the agency or (ii) prior counsel or both. If you fail to raise your legal argument, 1) even if it is a slam dunk, 2) you will likely be precluded from raising it A) in any federal court proceeding. ƒ b. If factual information is missing from the record: You must file A) a motion to reopen or, B) if an appeal is pending, I) a motion to remand. Be sure to follow all the prerequisites A) for such motions— 1) i.e., A) include any relevant relief application and B) establish prima facie eligibility for the relief. There are limited opportunities a) to supplement the record 1) after the Immigration Judge enters a decision. Often, such efforts must be made a) very shortly after the decision is entered. 11 8 CFR §1003.31(c). See Matter of Shanu, 23 I&N Dec. 754 (BIA 2005). 12 See infra for more information. The principal way a) to supplement the record 1) is through a motion to reopen. Deciding to file a motion to reopen is a significant tactical decision a) that requires an attorney i) to consider a number of factors. Although a motion to reopen may be filed with the immigration court a) within 90 days i) of the entry of the judge’s decision, 1) an appeal a) to the Board must be filed a) within thirty days. The filing a) of an appeal 1) divests an immigration judge of jurisdiction a) over a motion to reopen. These calendar realities have a significant impact a) on your decision-making. In addition, many times, if you are new counsel, 1) you will not get the case 2) until several days or weeks have passed a) since the judge’s decision, 3) further constraining your room to maneuver. A motion to reopen must state new facts a) that were unknown or unavailable i) at the time of the last hearing and b) that are material to the outcome in the case. A motion a) must be supported by i) affidavits, ii) evidence or iii) any new application A) that an individual wishes to present and b) must contain an explanation i) as to why this information could not have been presented A) prior to the decision. Upon notice a) of an unfavorable decision, 1) an attorney needs to consider several factors a) in deciding i) whether A) to file a motion to reopen or B) to file an appeal. These factors include: ƒ a. Timing. Has the appeal window shut already 1) since it has been 30 days A) since the Judge’s decision? How quickly could you A) get the evidence you need and B) file a motion to reopen? ƒ b. The Judge. Is this a judge A) who is likely to rule quickly? Is this a judge A) whose opinion suggests that I) she would reopen with certain evidence? Conversely, is this a judge A) who tends to delay deciding motions? Does the judge’s opinion convey a significant lack of sympathy A) to your client? Do you have time and 1) a judge A) that you could conceivably I) file a motion and II) get a decision (a) before your appeal is due? ƒ c. ICE. Can you get DHS on board A) with a motion? ƒ d. Nature of the decision. Is this an issue A) better addressed on appeal, B) such as a legal issue? Or is this something A) better addressed I) by going back before the Judge, B) such as I) ineffective assistance of counsel or II) the late arrival of a key document? The introduction a) of new and additional evidence 1) is, traditionally, the purpose of a motion to reopen and 2) that would be the first choice a) of many advocates. However, where there is evidence a) which needs to be i) created or ii) gathered, b) such as i) compliance with the requirements of Lozada13 A) to demonstrate ineffective assistance of counsel or ii) the production of A) affidavits and B) records I) from faraway countries (a) with unreliable infrastructure, 1) there may not be enough time a) to file a motion to reopen. In such circumstances, the filing of an appeal a) of the immigration judge’s decision 1) can preserve your ability a) to present this evidence i) once it is ready. By filing an appeal, you lose the possibility of seeking a motion to reopen a) before the judge, 1) but you do not necessarily lose the chance a) to bring new evidence to the proceedings. As a general matter, the BIA will not consider new evidence a) on appeal. However, new and previously unavailable evidence may be presented a) to the BIA b) in the form of a motion to remand. A motion to remand is appropriate 1) when, a) during the pendency of an appeal to the BIA, b) there is new and material evidence i) that provides an opportunity for relief. 13 See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). A motion to remand may be filed with the BIA, a) not for the purpose of having the BIA consider the new evidence i) in the first instance, b) but, rather, to remand the case i) to the immigration judge ii) for the judge’s consideration of the evidence. This is not to say that a) the BIA will not review the new evidence. The BIA will consider a) whether the evidence i) is new and ii) could not have reasonably been obtained A) in the proceedings below, b) whether the evidence is material, and c) whether the evidence has the possibility i) of changing the outcome below. The Board has discretion a) to grant or b) deny i) a motion to remand. AVOIDING SUMMARY DISMISSAL OF AN APPEAL Before the Board The BIA has instituted procedures a) to allow for summary dismissal i) of certain appeals.14 The possibility a) of summary dismissal 1) means that a) care must be taken i) in the preparing the form EOIR-26, A) Notice of Appeal. As discussed above, an appeal a) to the BIA ← End
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