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April 02, 2009

About Immigration Court

The news yesterday that Obama's aunt, Zeituni Onyango, has almost a year before her next immigration proceeding was met with outrage from many, for example Michelle Malkin, and grumblings of special treatment, from our own Blogger-in-Chief. So let's talk about what happens in removal proceedings.

In a case like this, where removal proceedings have been reopened after an order of removal the first thing that happens is a status hearing so that the immigration judge can find out how the parties want to proceed.

On the one side is the respondent. That's what the alien is called in removal proceedings; kind of like "defendant" in criminal proceedings. On the other is a trial attorney (known as a "TA") from the Department of Homeland Security. The TA is roughly analogous to a prosecutor. The immigration judge works for the Department of Justice.

So several things can happen at the first hearing after reopening, but the point of the hearing is to find out what relief the respondent is seeking. Remember, she's just had her case reopened and she has an outstanding order of removal. So she needs to immediately apply for relief and appear eligible for it. In Onyango's case, we don't know what she's applying for because the proceedings are closed, but I suspect all she's got is another shot at asylum based on changed conditions in Kenya.

That's probably what she did yesterday. She and her attorney show up at court and tell the judge that they intend to seek asylum (again). They might have the application and supplemental documentation already, but that's not usually required. The judge will set a deadline for filing of the application. Once that's accomplished, the judge will set a date for what is called a merits hearing. At a merits hearing, the court takes testimony and hears the parties' arguments. Usually the judge issues an oral decision on the day testimony is completed, but in complicated cases may chose to issue a written one instead.

Yesterday, the immigration judge scheduled a merits hearing on Onyango's application for February 4, 2010. Ten months between hearings is not unusual in immigration court, at least at the "Big Four" immigration courts in San Fransisco, Los Angeles, New York, and Miami. I'm a little surprised this Boston IJ has such a crowded schedule that he's taking ten months between hearings, but it does not surprise me. The immigration courts are seriously overworked, in part because of a hiring freeze on staff and new judges that has been going on for a few years. (BTW, that hiring freeze was just lifted because of the Omnibus Appropriations Act passed in February, so things might speed up as positions left vacant for years start to get filled.)

In short, what happened yesterday is exactly what was expected to happen. I don't think Onyango's proceedings should have been reopened and I suspect that the immigration judge impermissibly circumvented the regulations on reopening to do it. But now that she is back in front of a judge, her case is going the way all the others do. There has been no special treatment that I have seen.

Oh, and while I'm thinking of it: That "little-used provision in U.S. immigration rules that allows denied asylum claims to be reheard" is the one of the most common filing in immigration court. It is not "little-used", as the AP reported and as almost everyone repeated. A motion to reopen based on changed country conditions is very frequently filed and most frequently denied by immigration judges.

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posted by Gabriel Malor at 08:37 AM

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