4.16 - Individual Calendar Hearing

(a) Generally

Evidentiary hearings on contested matters are referred to as individual calendar hearings or merits hearings.  Contested matters include challenges to removability and applications for relief.

(b) Filings

The following documents should be filed in preparation for the individual calendar hearing, as necessary.  Parties should note that, since Records of Proceedings in removal proceedings are kept separate from Records of Proceedings in bond redetermination proceedings, documents already filed in bond redetermination proceedings must be re-filed for removal proceedings.  See Chapter 9.3 (Bond Proceedings). 

      (1) Applications, exhibits, motions - Parties should file all applications for relief, proposed exhibits, and motions, as appropriate.  All submissions must comply with the deadlines and requirements for filing.  See Chapter 3 (Filing with the Immigration Court). 

      (2) Witness list - If presenting witnesses other than the respondent, parties must file a witness list that complies with the requirements of Chapter 3.3(g) (Witness Lists).  In addition, the witness list must comply with the deadlines and requirements for filing.  See Chapter 3 (Filing with the Immigration Court). 

      (3) Criminal history chart - When submitting documents relating to a respondent’s criminal arrests, prosecutions, or convictions, parties are encouraged to use a criminal history chart and attach all pertinent documentation, such as arrest and conviction records.  For guidance on submitting a criminal history chart, see Chapter 3.3(f) (Criminal Conviction Documents).  For a sample, see Appendix M (Sample Criminal History Chart).  Parties submitting a criminal history chart should comply with the deadlines and requirements for filing.  See Chapter 3 (Filing with the Immigration Court). 

(c) Opening the Individual Calendar Hearing

The immigration judge turns on the recording equipment at the beginning of the individual calendar hearing.  The hearing is recorded, except for off-the-record discussions.  See Chapter 4.10 (Record).

On the record, the immigration judge identifies the type of proceeding being conducted (e.g., a removal proceeding); the respondent’s name and A-number; the date, time, and place of the proceeding; and the presence of the parties. The immigration judge also verifies the respondent’s name, address, and telephone number.  If the respondent’s address or telephone number have changed, the respondent must submit a change of address form (Form EOIR-33 Change of Address/Contact Information Form).

    If the respondent is requesting relief that requires background investigations and security checks, the immigration judge inquires, on the record, whether DHS completed them.  If they are completed, the immigration judge must ensure the note the name of the DHS counsel who reported the completeness and the date on the Immigration Judge Worksheet.  If the background investigations and security checks are incomplete due to the respondent’s lack of compliance without good cause, the immigration judge may deem the application for the covered form of relief abandoned and enter an order dismissing the application. 8 C.F.R. § 1003.47(c).

    If the background investigations and security checks were not completed due to DHS, DHS may seek a continuance.  Additionally, the immigration judge may proceed with the merits hearing; while they can deny relief, they cannot render a decision granting any covered form of relief until the background investigations and security checks are complete. 8 C.F.R. § 1003.47(f), 1003.47(g). If, after hearing the merits of the case, the immigration judge would grant covered relief, they must reschedule the matter for a date when DHS believes the background investigations and security checks will be complete.  If, in the meantime, they decide to write a draft opinion, they must not discuss its existence or content with either party.

If relief is granted that entitles the respondent to a document from DHS, the immigration judge’s decision must include an advisal to the respondent that they will need to contact an appropriate office of DHS to obtain a new document. 8 C.F.R. § 1003.47(i).

(d) Conduct of Hearing

While the immigration judge decides how each hearing is conducted, parties should be prepared to:

• make an opening statement
• raise any objections to the other party’s evidence
• present witnesses and evidence on all issues
• cross-examine opposing witnesses and object to testimony
• make a closing statement

(e) Witnesses

All witnesses, including the respondent if they testify, are placed under oath by the immigration judge before testifying.  If necessary, an interpreter is provided.  See Chapters 4.11 (Interpreters), 4.15(o) (Other Requests).  The immigration judge may ask questions of the respondent and all witnesses at any time during the hearing.  See INA § 240(b)(1).

(f) Pro Se Respondents

Unrepresented (“pro se”) respondents have the same hearing rights and obligations as represented respondents.  For example, pro se respondents may testify, present witnesses, cross-examine any witnesses presented by the Department of Homeland Security (DHS), and object to evidence presented by DHS.  When a respondent appears pro se, the immigration judge generally participates in questioning the respondent and the respondent’s witnesses.  As in all removal proceedings, DHS may object to evidence presented by a pro se respondent and may cross-examine the respondent and the respondent’s witnesses. 

(g) Decision

After the parties have presented their cases, the immigration judge renders a decision.  The immigration judge may render an oral decision at the hearing’s conclusion, or they may render an oral or written decision on a later date.  See Chapter 1.4(c) (Immigration Judge Decisions).  If the decision is rendered orally, the parties are given a signed summary order from the court.

(h) Appeal

The respondent and the Department of Homeland Security have the right to appeal the immigration judge’s decision to the Board of Immigration Appeals.  See Chapter 6 (Appeals of Immigration Judge Decisions).  A party may waive the right to appeal.  At the conclusion of immigration court proceedings, the immigration judge informs the parties of the deadline for filing an appeal with the Board, unless the right to appeal is waived.  See Chapter 6.4 (Waiver of Appeal). 

Parties should note that the immigration judge may ask the Board to review the immigration judge’s decision.  This is known as “certifying” a case to the Board.  The certification of a case is separate from any appeal in the case.  Therefore, a party wishing to appeal must file an appeal even if the immigration judge has certified the case to the Board.  See Chapter 6.5 (Certification). 

    If an appeal is not filed, the immigration judge’s decision becomes the final administrative decision in the matter, unless the case has been certified to the Board.

(i) Relief Granted

If a respondent’s application for relief from removal is granted, the respondent is provided the Department of Homeland Security (DHS) post-order instructions.  These instructions describe the steps the respondent should follow to obtain documentation of their immigration status from U.S. Citizenship and Immigration Services, a component of DHS.

More information about these post-order instructions can be found by searching for “post-order instructions” on the U.S. Citizenship and Immigration Services website.