4.19 - Pre-Hearing Briefs

(a) Generally — An immigration judge may order the parties to file pre-hearing briefs.  Parties are encouraged to file pre-hearing briefs even if not ordered to do so by the immigration judge.  Parties are also encouraged to file pre-hearing statements to narrow and reduce the legal and factual issues in dispute.  See Chapter 4.18(b) (Pre-Hearing Statements).

(b) Guidelines — Pre-hearing briefs advise the immigration judge of a party’s positions and arguments on questions of law.  A well-written pre-hearing brief is in the party’s best interest and is of great importance to the immigration judge.  Pre-hearing briefs should be clear, concise, and well-organized.  They should cite the record, as appropriate.  Pre-hearing briefs should cite legal authorities fully, fairly, and accurately.

          Pre-hearing briefs should always recite those facts that are appropriate and germane to the adjudication of the issue(s) at the individual calendar hearing.  They should cite proper legal authority, where such authority is available.  See subsection (f), below.  Pre-hearing briefs should not belabor facts or law that are not in dispute.  Parties are encouraged to expressly identify in their pre-hearing briefs those facts or law that are not in dispute.

          Briefs and other submissions should always be paginated.  Parties must limit the body of their briefs to 25 pages.  If a party believes it cannot adequately address the issues in the case within the page limit, the party may make a motion to increase the page limit.  Pre-hearing briefs should always be paginated.

(c) Format 

          (1) Filing — Pre-hearing briefs should be filed with a cover page with an appropriate label (e.g., “RESPONDENT’S PRE-HEARING BRIEF”), and comply with the deadlines and requirements for filing.  See Chapter 3 (Filing with the Immigration Court), Appendix E (Cover Pages).  Pre-hearing briefs must be signed by a pro se respondent, a respondent’s practitioner of record, or a representative of the Department of Homeland Security.  See Chapter 3.3(b) (Signatures).  See also Chapter 2 (Appearances before the Immigration Court).

          (2) Contents — Unless otherwise directed by the immigration judge, the following items should be included in a pre-hearing brief:

• a concise statement of facts
• a statement of issues
• a statement of the burden of proof
• a summary of the argument
• the argument
• a short conclusion stating the precise relief or remedy sought

          (3) Statement of facts — Statements of facts in pre-hearing briefs should be concise.  Facts should be set out clearly.  Points of contention and points of agreement should be expressly identified.

          Facts, like case law, require citation.  Parties should support factual assertions by citing to any supporting documentation or exhibits, whether in the record or accompanying the brief.  See subsection (f), below.

          Do not misstate or misrepresent the facts or omit unfavorable facts that are relevant to the legal issue.  A brief’s accuracy and integrity are paramount to the persuasiveness of the argument and the decision regarding the legal issue(s) addressed in the brief.

          (4) Footnotes — Substantive arguments should be restricted to the text of pre-hearing briefs.  The excessive use of footnotes is discouraged.

          (5) Headings and other markers — Pre-hearing briefs should employ headings, sub-headings, and spacing to make the brief more readable.  Short paragraphs with topic sentences and proper headings facilitate the coherence and cohesiveness of arguments.

          (6) Chronologies — Pre-hearing briefs should contain a chronology of the facts, especially where the facts are complicated or involve several events.  Charts or similar graphic representations that chronicle events are welcome.  See Appendix M (Sample Criminal History Chart).

          (d) Consolidated Pre-Hearing Briefs — Where cases have been consolidated, one pre-hearing brief may be submitted on behalf of all respondents in the consolidated proceeding, provided that each respondent’s full name and A-number appear on the consolidated pre-hearing brief.  See Chapter 4.21 (Combining and Separating Cases).

          (e) Responses to Pre-Hearing Briefs — When a party files a pre-hearing brief, the other party may file a response brief.  A response brief should be filed with a cover page with an appropriate label (e.g., “DHS RESPONSE TO PRE-HEARING BRIEF”), and comply with the deadlines and requirements for filing.  See Chapter 3 (Filing with the Immigration Court), Appendix E (Cover Pages).  Response briefs should comply with the guidelines for pre-hearing briefs set forth above.

          (f) Citation — Parties are expected to provide complete and clear citations to all factual and legal authorities.  Parties should comply with the citation guidelines in Appendix I (Citations).