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Government Must Comply with Filing Deadlines, Court Says

In what many private practitioners of immigration law find to be a long overdue decision, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal court with jurisdiction over petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings that take place within states such as California, Nevada, Arizona, and Washington, did not permit the United States Department of Homeland Security ("DHS") to bypass the Immigration Court Practice Manual to file evidence in support of its charges of removability against a foreign-national asylee. DHS attempted to bypass the rule that was discussed in my last post and that requires that evidence in support of a party's position be filed at least fifteen days prior to the relevant hearing. Also as discussed in my last post, there is an exception to that rule if the purpose of the offered evidence is to rebut and/or impeach. As one may imagine, such an exception could potentially be subject to abuse by DHS in situations where DHS alleges a foreign national has committed fraud of some sort and therefore can be served with the evidence supporting such a charge on the date of the relevant hearing, instead of fifteen days prior, under the guise that the evidence's purpose is to impeach the foreign national's credibility.

However, a few days ago in Urooj v. Holder, the Ninth Circuit clarified once again the difference between substantive evidence and rebuttal &/or impeachment evidence. The Ninth Circuit specifically referenced the Immigration Court Practice Manual's filing-deadline rule and held that if DHS seeks to support its position with evidence, then such evidence must be filed in concert with such filing deadlines.

The case is also interesting because it involved the foreign national's refusing, per her attorney's instruction, to answer DHS's questions during the relevant immigration-court hearing, but such refusal, the Ninth Circuit held, could not be used to establish DHS's position absent any substantive evidence that was properly filed, i.e., filed pursuant to the Immigration Court Practice Manual's filing deadline.

It is important to note that such tactics would likely be effective not only when the burden is on DHS to prove removability but also when the foreign-national respondent already holds lawful immigration status.