ICE- Chief Counsel Catherine Pincheck, Deputy Chief Victoria Christian

Cleveland OPLA/AILA Meeting on June 2, 2016

Present:

AILA: Wayne Benos, Jennifer Peyton, Scott Bratton, Kay Longville

AILA survey of attorney feedback regarding ICE OPLA Cleveland Attorneys:

ICE OPLA Cleveland perceived the survey as not productive, as it istoo subjective, and the formatnot an appropriate way to address staffing issues, including differences in personality. Further, the survey is not a productive way to improve relations when specifically “bashing” individual attorneys.ICE OPLA Cleveland believes that concerns with ICE attorneys should be addressed with management (i.e., Catherine and/or Victoria). ICE OPLA Cleveland reports unpreparedness as an issue with the private bar at times. That said,there is a gentle reminder that ICE OPLA Cleveland is representing their client and private attorneys are representing their clients. Naturally, there will generally not be agreement on the handling of cases between the parties.
For AILA’s part and the private bar, the survey was an idea of a way to open up communication and find common issues. Often, private bar attorneys are reluctant to come forward for fear of causing a retaliatory stance from DHS. Also, the survey was created and presented as AILA is not in a position to present specific incidents on behalf of another specific attorney as the representatives here have no personal knowledge regarding any such incident. The survey, though not scientific, was intended to convey a general perception such that both sides are aware of perceived issues so that steps may be implemented to increase professionalism on both sides of the bar. A step in that direction was offered by way of a “social get-together” this summer being proposed for both sides to attend, with a specific prohibition against discussions of individual cases (or work in general).
ICE OPLA indicated there should be no fear of retaliation when an issue regarding the actions of an ICE OPLA attorney arises. If the issue is addressed with management, management will not disclose the name(s) of complainants; however, depending on the allegation, the attorney may understand who is making the “complaint”.
ALIA noted that prior to this point, there had not been any known assurances of anonymity, so that is perhaps why there has been thus far a reluctance on the part of the private bar.
With regard to the issue of unpreparedness,ICE OPLA noted that PD requests continue to be submitted at the eleventh hour; and evidence packets are also submitted late. For perspective’s sake, there are currently over 6,000 cases pending with EOIR Cleveland, equaling out to about 866 cases per individual attorney. This does not include all other matters handled by ICE OPLA Cleveland attorneys. National security cases take a lot of time and resources. Senior Attorney Cheryl Gutridge has handled approximately 9 national security cases this year, which is a huge task, and a priority for the agency. If an attorney cannot review something quickly in that type of instance, the case can be reassigned. However, management must be made aware if lack of response so as to follow up and determine if reassignment is appropriate.
ICE OPLA Cleveland will be onboardinga new attorney, hopefully this summer. In addition, it is understood that the Court may be expanding. If EOIR Cleveland expands, ICE OPLA Cleveland will expand.
ICE OPLA Clevelandinquired if telephone calls are being answered: AILA responded: Yes, the office has been very consistent about answering the phone.
In FY16, 44% of about 850 cases were either administratively closed or offered by ICE OPLA Cleveland to be administratively closed. ICE OPLA Cleveland reviews pink sheet cases from EOIR as well as requests received in the PD inbox. The best way to follow up on a PD requestis to e-mail thePD inbox to find out who is the attorney assigned to review.Vicki regularly monitors this inbox. If you don’t hear from that attorney after about 2 weeks, let Vicki or Catherine know.

Joint Motions to Reopen:

Joint Motions to Reopen (JMTR) are a bit lower in priority as a whole, than other types of responsibilities/cases that must be handled by the Deputy Chief Counsel in Cleveland. Go to Vicki or Catherine for those, because they have the final say on whether or not ICE will agree to reopen the case.

How in depth should PD evidence requests be? A lot of support letters or report cards are not necessarily going to be helpful from an evidence standpoint, although it is a totality of the circumstances analysis. ICE OPLA Cleveland encourages private bar attorneys to have a very pointed and explicit conversation with their clients about full disclosure of all negative factors in their past.
Private bar stated that this conversation very often takes place, but clients will still in many instances not disclose some matters to the attorney
In Cleveland, Vicki reviews the cases which are not fairly clear on their face (significant misdemeanor, felony, 3 or more misdemeanors, etc.)

ICE OPLA Cleveland strategy with evidence/impeachment evidence:

There will be some evidence that ICE OPLA Cleveland attorneys may not submit in advance because it can be used effectively as impeachment evidence at hearing. It is a trial strategy. WhenICE OPLA has the burden of proof,however, all of the evidence to prove a substantive allegation/charge of the case will be submitted as part of an exhibit packet to opposing counsel.
AILA inquired: In instances where evidence is uncovered that shows that the foreign national is ineligible for relief, can there be more proactive communication in those instances?
Evidence of statutory ineligibility should probably come up in a pre-trial context; whereas it is more understandable for an impeachment-only issue to be held for that purpose until the court hearing.
ICE OPLA Cleveland has been reluctant to file motions to pretermit in cases because they very often get left un-adjudicated basically until trial. However, ICE OPLA Cleveland could try to file those more often, particularly in cases where opposing counsel is not being very communicative or “cooperative” with ICE OPLA (for lack of a better term).

Private bar’s use of e-service:

ICE OPLA will kick back non-compliant submissions. For the most part, this system is going pretty well for both sides

Docket issues:

AILA asked if ICE OPLA had greater access to the Court’s docketing and other systems than does private counsel. ICE OPLA indicated that it does not have any greater access other than it can access the daily court docket list that the Court posts outside the courtroom on the day of the hearings. ICE OPLAalso understands that the court is looking into having a more easily accessible docket listing. However, in all likelihood, this will not happen any time soon.

Diminished capacity and bond:

If someone is of diminished capacity, but is also subject to mandatory detention, the individual will remain in ICE custody. In cases where detention is not mandatory, all factors are considered, and it is very fact-specific. ICE will make sure that detainees get the care they need, even if that means transfer of the individual to a different facility.
If a client is not getting the care that he or she needs, the case should be elevated to management. It is expected that ICE OPLA Cleveland attorneys will know what to elevate. Private bar attorneys should elevate the matter if they believe that appropriate treatment is not being provided.

Motions to terminate for respondents who voluntarily depart the U.S. prior to their hearing:

ICE OPLA Cleveland should not be terminating cases for those who have departed the United Statesprior to their scheduled hearings. Exception: LPR abandonment cases, where arrangements have been made in advance for the individual to execute a proper Form I-407 and agreement, and later submit proof of departure (noting that Form G-146 is the best evidence to prove departure).

Copies of documents for detained docket:

To get NTAs: go to OCC
To get passports: go to ERO
To review the files of a detained person: FOIA or Court file review

NTAs issued by CBP:

ICE OPLA does not rescind NTAs. Any issues with an NTA should be addressed with the issuing agency. USCIS continues to adhere to its Memorandum issued on November 7, 2011: Revised Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and Removable Aliens.
Regarding NTAs that have been issued and are outstanding for a long time but have not been filed with the court: that is an issue to be taken to the duty attorney. It is possible that NTAs have been filed with EOIR, but not yet docketed.

Possibility of a general inquiry box?

There are no plans to have one. Duty attorney at ICE OPLA Cleveland should be able to field general inquiries.
For the private bar, it is sometimes difficult to know who to contact. The duty attorney? The attorney at the master?
ICE OPLA Cleveland indicates that general inquiries should be directed to the duty attorney as the first point of contact for a general inquiry.

ICE OPLA Cleveland’s planned move to Brooklyn Heights facility:

There are still no new dates on that. The move is proceeding forward. ICE OPLA Cleveland is pretty confident that it will not be another year. But otherwise, no time frame.

ICE OPLA Cleveland attorney listing for who will be handling a given day’s docket:

Very handy. Thanks for that.