FOIA Litigation Results in Helpful Guidance on Motions Practice Before the BIA

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The American Immigration Council released key DOJ guidance that may help you if your clients are facing removal from the United States. These materials—publicly available for the first time—address motions before the Board of Immigration Appeals (BIA), including stays of removal.

Motions to stay removal are critical in preventing the devastating—and at times life-threatening—consequences of unlawful or unjust deportations. Yet, until now, the government has failed to disclose how it decides these motions.

The documents released by the American Immigration Council are a practical guide on how the BIA adjudicates stay motions as well as other motions. They include training materials and internal guidance that provides insight into how the BIA operates generally. In particular, the materials include the BIA's Standard Operating Procedures on Adjudicating Emergency Stays, the most current set of BIA protocols governing stay motions.

The American Immigration Council obtained these documents through a Freedom of Information Act (FOIA) lawsuit it filed with the Kathryn O. Greenberg Immigration Justice Clinic at the Benjamin Cardozo School of Law.

EOIR Standard Operating Procedures on Adjudicating Emergency Stays of Removal

Document Name Date Description
Standard Operating Procedure (SOP) for Handling Emergency Stay Motions Filed with the BIA June 28, 2016 Internal Executive Office for Immigration Review (EOIR) manual on adjudicating emergency stays of removal, including guidance on how emergency stay motions are screened and processed by BIA staff, and how parties are notified of stay decisions. Although the document is labelled draft, the agency confirmed that this is the operative version of the manual as of May 2019.
Stay SOP Appendix A: How to Process a Stay with the BIA’s Emergency Stay Unit (ESU) Quick Reference Guide Undated Appendix to the Stay SOP: Guide for staff responding to calls to 703-306-0093, the BIA ESU telephone number
Stay SOP Appendix B: ESU Email Protocol/Guidelines March 11, 2016 Appendix to the Stay SOP: Guide for staff responding to inquiries to the BIA ESU email address for intra-government use
Stay SOP Appendix C: Useful Information for Contacting Deportation Officers Undated Appendix to the Stay SOP: Suggestions for BIA ESU staff seeking to contact deportation officers
Stay SOP Appendix D: Removal Information Request Process Undated Appendix to the Stay SOP: Guide for staff responding to intra-governmental requests to BIA ESU to check if an individual has been removed
Stay SOP Appendix E: Stay Request Phone Log and Worksheet March 15, 2016 Appendix to the Stay SOP
Stay SOP Appendix F: Stay Circulation Sheet and Orders—Templates and Samples March 5, 2019 Appendix to the Stay SOP
Stay SOP Appendix G: Fax Transmission Sheet Undated Appendix to the Stay SOP
Stay SOP Appendix H: FAQ Regarding Emergency Stays Before the BIA April 7, 2017 Appendix to the Stay SOP
Stay SOP Appendix I: Sample Monthly Report and Schedule April 3, 2017 Appendix to the Stay SOP
Stay SOP Appendix J: IP Phone and Voicemail Guide September 20, 2016 Appendix to the Stay SOP: Internal guide for staff on telephone/voicemail use
Stay SOP Appendix K: Continuity of Operations (COOP) and Hazardous Weather Office Closure ESU Procedures Undated Appendix to the Stay SOP: Guide for emergency procedures in the case of emergency events
Stay SOP Appendix L: Closure Stay Line Telephone and Email Greeting Change Undated Appendix to the Stay SOP: Labelled Appendix K but listed as Appendix L in the SOP index

EOIR Trainings on Motions

Document Name Date Description
VIDEO: The Board's Emergency Stay Process Undated BIA training video outlining how staff handle emergency stay motions; length: 13.54
Jurisdictional Issues and Motions: Training Checklist October 28, 2013 Checklist/outline for BIA paralegals who screen motions addressing jurisdictional issues
Adjudicating Motions: Procedural Issues and Related Developments; Substantive Law Developments and Advanced Issues June 6, 2018 EOIR PowerPoint presentation training regarding substantive law in the area of motions generally, including motions for stays of removal
Adjudicating Motions Undated Outline of general information regarding adjudicating motions generally, not including motions for stays of removal
The Exclusionary Rule in Immigration Proceedings and Motions to Suppress April 30, 2018 Legal overview of the exclusionary rule and its interplay with motions to suppress in removal proceedings
Quick Reference: Motions to Suppress and Alienage Undated Chart of BIA and courts of appeals law outlining different topics related to motions to suppress
Issue Sheet October 2018 Brief internal screening checklist for motions to reopen filed with the BIA
Motions Involving Jurisdictional Issues 2012 PowerPoint training for BIA paralegals on jurisdictional issues, primarily related to motions to reopen and motions to reconsider
Adjudicating Motions Basic Principles Fall 2015 PowerPoint training primarily focused on substantive legal principles that apply when screening and adjudicating motions to reopen and reconsider

Manuals Instructive to BIA Procedures

Document Name Date Description
Case Access System for EOIR (CASE) Data Entry Course Lesson Plan July 16, 2010 Internal instructional manual on how to navigate EOIR database for recording and tracking cases, and entering applications, events, and disposition of cases
BIA Style Manual: A Guide to Drafting Board Decisions March 6, 2019 Internal BIA manual that: provides guidance to BIA staff on tasks including drafting and issuing decisions, conducting initial case screening, and compiling records of proceedings; addresses formatting, style, tone, and general legal citation principles
Entering Motions Process (SOP) Undated Flowchart describing how BIA staff enter information about filed motions into CASE
Screening Cheat Sheet October 18, 2018 One-page cheat sheet for BIA staff screening filed motions
11-Step Detained and Non-Detained Case Appeal Screening Outline Undated Guide for inputting appeals into CASE, including for vulnerable populations, including screenshots from the CASE system
Immigration Claims Process Worksheet Undated Worksheet to be completed with the procedural history for individuals who file motions to reopen
Workflow—High Level Chart Undated Flowchart on handling a case during file preparation, pre-adjudication, and adjudication, including corresponding duties of each BIA staff member
AUDIO: BIA Paralegal Training Undated Audio training to paralegals on BIA procedure and how to screen motions; length: 2:20:40

Cite as AILA Doc. No. 19053030.