Wednesday, July 26, 2017

Remember: It's Okay to Deny the NTA



Arguably the most important moment in the removal proceedings of any respondent is the master calendar hearing. Think about it. Not only is it the first chance for your client to see the immigration judge, OCC counsel, and the courtroom, not to mention getting a feel for the process, but it is also where the charges contained in the Notice to Appear ("NTA") are discussed.

I have been guilty at times of glancing over the NTA and admitting the pleadings and conceding the charge(s) of inadmissibility/removability as quickly as possible so I could get on with filing my applications for relief; especially in cases where I was eager to get to relief due to what I felt was a strong case or a client's desire to push the case forward.

I can't think  of any cases where I've seriously prejudiced a client in doing so, but I certainly have found myself more concerned about the application for relief than holding DHS to its burden of proving inadmissibility/removability.  It's also caused health doses of retrospection.

That being said, I seriously doubt I am alone in having done so.  I often sit and observe other hearings in the court room instead of standing up and asking to go first.  I've done this since I was a baby attorney.

It isn't that I am afraid of having an audience; rather, I enjoy observing other attorneys doing their thing.  I learn a lot no matter how experienced/inexperienced, reputable/shady, or swashbuckling/timid the attorneys are.  I always learn something.  I feel like the day I stop learning from observing other attorneys is the day I need to find a new career.  If I get to that point, I'm either senile or too full of myself to be effective.

Every attorney is different, so spoiler alert: I'm generalizing. One theme I see repeatedly is that hardly anyone denies the allegations or the charge(s).  The NTA is rarely discussed except to admit and concede everything and then to propose eligibility for some form of relief.

In cases not involving criminal charges of inadmissibility/removability or immigrants or non-immigrants still in status, addressing the NTA seems to have become a mere formality.  It's something you do so you can move on to the next thing: applying for some form of relief from removal.

In some cases moving on quickly to the next thing can be in your client's best interest.  Maybe there is a compelling asylum claim or an extremely sick U.S. citizen qualifying relative for purposes of an EOIR-42B.  Combining such factors with an average NTA, - an NTA that OCC isn't going to have any problem meeting their burden of proof with - means that denying the NTA could arguably prejudice a client if a delay is caused by having to schedule a separate contested removal hearing, adding significant time to the process.

But if we're being honest with ourselves, most cases don't rise to that level.  Unless you have a policy of only accepting the strongest of cases (I don't), most are difficult, if not impossible, to win asylum cases, or run of the mill cancellation claims where there are going to be serious issues involving continuous physical presence, good moral character, exceptional & extremely unusual hardship, or all of the above.

Should we be denying the allegations and charge(s) contained in the NTA in these cases?  What are the benefits of doing so?  What happens when we do?  Are there any risks?  Is it ethical? These are all questions I've struggled with the last 8 years or so. If you are also struggling, here is a list of the things I've been thinking about lately.

Of course I've got to make a list....

It is the Burden of the Department to Prove Deportability

We have to remember that it is never our obligation or the obligation of our clients to admit and concede removability.  It is the burden of OCC to prove removability and requesting the court to honor due process by asking the OCC to meet their burden of proof is not shameful, inappropriate, or a delay tactic.  It is fair.  It is due process. It establishes a more complete record (more on that below).

Of course, just because it's OCC' burden doesn't mean you should always hold them to it or do so willy-nilly. Sometimes criminal defendants enter a guilty plea when the state has the burden of proving guilt.  Like with criminal law, there are tons of moving parts and many things to consider in removal proceedings.  Even so, denying the NTA, like entering a "not-guilty" plea in criminal proceedings, may be the best option.

Why do the Job of DHS?

The Department of Homeland Security in the era of Trump is not doing us or our clients any favors. On the contrary, negotiating a favorable exercise of prosecutorial discretion is essentially off the table, trial attorneys rarely stipulate to anything, OCC opposes virtually everything short of our entries of appearance (maybe one day they'll do that too), and scorched earth litigation tactics are on the rise. In such a climate, why should we offer to perform the one obligation DHS has?  Why make their job easier when they're actively doing everything they can to make our job more difficult.

Our one opportunity to respond in kind to increasingly hostile strategies employed by DHS is to force them to meet their burden. Doing so increases their backlogs and forces them to take their first responsibility seriously.  It sends the message that we aren't simply going to roll over and accept whatever aggressive new policy they decide to throw out there. By asserting more control, we remind the trial attorneys and the court that we are indispensable actors in this process, just as they are, and as such, we have options to react to their tactics and should be taken into consideration when they try to change the rules of the game.

DHS has to Open their File

Do you ever get tired of the trial attorney presenting the I-213 or other documents "for impeachment purposes" or other reasons at the individual hearing before you've even had the chance to take a look? Forcing DHS to meet their burden means they are going to have to produce evidence of all the allegations and the charge(s) contained in the NTA for you and your client's review and cross-examination.

You might be able to FOIA those documents, but FOIA is far from perfect.  Denying the NTA not only forces DHS to meet their burden, it also enforces your client's right to review evidence in DHS' possession supporting the contents of the NTA.

Even better, the evidence DHS has in the file is not always infallible.  Taking a peak at the file increases our odds of being able to identify problems with their evidence and documentation, which can lead to opportunities for motions to suppress or otherwise object to the evidence.  In other words, it gives us more opportunities to better defend out clients.

But You Might become a Pariah....

Assuming it is rare as I think it is that removal defense attorneys deny normal NTAs, you might make a name for yourself with the local OCC.  That is not always a good thing.  While it is not necessarily our job to become friends with the trial attorneys, a healthy working relationship is never bad and can pay dividends down the road. For the record, I have been friendly with certain trial attorneys in the past and I look up to several as some of the best attorneys I've ever worked with. I learn from them every hearing. If you don't, you're an idiot.

Regardless, being obnoxious for the sake of being obnoxious can lead to unintended consequences, including an increase in the lack of willingness OCC may have to work with you. You're making their lives and jobs more difficult, so why shouldn't they return the favor. Make sure you know your local trial attorneys and if you decide to employ this strategy, do so respectfully and maybe even selectively.  Don't do it just to do it.

Meeting Client Expectations

Obviously we have to keep our clients informed.  Bottom line.  Make sure your client knows and agrees to any attempts to deny allegations or charges contained in the NTA.  Maybe they don't want to endure a contested removal hearing.  Maybe they want to resolve the case as quickly as they can. Maybe they're detained and it takes all of your efforts just to convince them of the benefits of submitting that cancellation or asylum application.  They need to be involved in the decision making process.

Even so, clients have hired you based on the expectation that you will defend them. They want to see you stand up for them. To argue on their behalf and hold the government accountable. Contesting the NTA is something easy to point to showing you have satisfied those expectations.

Expect Pushback

Not all immigration judges are accustomed to this strategy - especially in seemingly obvious cases. The same goes for trial attorneys. You might get all sorts of unnerving reactions ranging from surprised expressions and raised eyebrows to accusations of employing delay tactics or disrespecting the process. That's okay. Remember, this is litigation.  Arguments happen and drama ensues. There's nothing wrong with that.  Just be prepared for it.

Of course, you may also earn respect. Denying the NTA sends a clear message that you aren't there to play around. You take defending your client seriously and have an understanding of your role as defense counsel. Even with pushback, having that reputation is never a bad thing.

What am I Trying to Say?

For those of us who have been practicing for 10 years or less, the climate today is different than it has been before. Removal proceedings were far from perfect under Presidents Obama and Bush, but many of the tools we had at our disposal in those years have gone the way of the dodo. Moving forward, we have to be creative. We have to be willing to try things we maybe didn't try before. Thinking more critically about the NTA, and when appropriate after consultation with your client, denying the NTA, are good places to start. They are valid options and are perfectly within the rights of those we represent.

All of that being said, my personal feeling is that I try not to be monolithic.  I don't always admit and I don't always deny. Every case is different and should be treated differently.  I try and think critically about each NTA, taking into account each client's circumstances, and then I go from there.

I can promise it isn't always comfortable, and denying the NTA may not be the best strategy in every case, but we should keep an open mind and be willing to deny when necessary to pursue our clients' best interests. Doing so is keeping with our responsibilities as defense counsel and provides another tool in our box, helping to send a clear message to the administration that, while they may increase their efforts to cast a wider net, and they may work to make our jobs more difficult, we, and those we represent by extension, aren't going to be willing participants.

Nathan R. Bogart is the managing immigration attorney at Joyce Law Firm.  He focuses exclusively on immigration matters, including removal defense, appeals, family petitions, citizenship & humanitarian options.

Joyce Law Firm is a law firm dedicated to providing exceptional legal representation in Northwest Arkansas and state-wide. Honesty and experience are the characteristics everyone needs in their attorney. Our goal is to provide the highest quality of service to our clients; we keep you informed about your case and we aggressively represent your interests.

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