Immigration Sample Motion to Continue in Removal Proceeding

- by Morgan Macdonald, Senior Attorney

This is the first in a series of posts addressing tips and strategies for the defense of immigrants in removal proceedings and other types of litigation.

Motions to terminate are an increasingly important litigation tool for defense attorneys representing immigrants in removal proceedings. A motion to terminate can provide significant strategic advantages, particularly for immigrants with criminal convictions, and gives a rare opportunity to hold the government to its burden of proof. Below is an overview of motions to terminate and tips on how they can be useful in your case.

What Is a Motion to Terminate?

A motion to terminate asks an immigration court to "terminate" (i.e., dismiss) the charging document (known as the "Notice to Appear" or "NTA") because the government's charges are substantively or procedurally defective. Although the government can amend an NTA even after a motion to terminate is granted, there are many instances where the government will not be able to do so because its sole charge is legally deficient (this is particularly true when a motion to terminate is based on a "categorical approach" argument, as described below). Motions to terminate may be particularly helpful for an individual who does not have strong defenses to deportation because motions to terminate often deal with a purely legal issue relating to the NTA.

A motion to terminate can provide significant strategic advantages, particularly for immigrants with criminal convictions, and gives a rare opportunity to hold the government to its burden of proof.

Why File a Motion to Terminate?

Motions to terminate can be based on many different grounds, including an improperly served NTA; a misstatement of facts in the NTA or other incongruity between the facts and the charge; eligibility for an immigration benefit or naturalization; or a legally deficient charge from DHS. For immigrants facing deportation as a result of a criminal offense, two motion to terminate arguments are particularly important: (1) the charge of removability in the NTA is legally erroneous; and (2) the immigrant (called the "respondent" in immigration court) is eligible for an immigration benefit or naturalization and should be given time to apply for that benefit before the case moves forward.

Legally erroneous charge: Immigrants with criminal convictions placed in removal proceedings are charged with one or more grounds of "deportability" or "inadmissibility." These charges allege that the immigrant has committed a category of offense that makes him deportable under the Immigration & Nationality Act (INA). However, under a legal test called the "categorical approach," a defense attorney may be able to argue that the immigrant's criminal conviction should not be considered a deportable offense because the statute at issue criminalizes a broader array of conduct than the matching ground of deportability in the INA. A useful overview of this type of argument may be found here. If this argument is successful, the categorical approach provides that an individual cannot be deported due to the overbreadth of the state statute regardless of the facts of the underlying crime.

Application for immigration benefit: In some instances, an attorney can file a motion to terminate when a client qualifies for an immigration benefit or is eligible for naturalization. For example, if a client qualifies for a U Visa, meaning that he is assisting with the prosecution of a crime and therefore protected from deportation, the defense attorney and prosecution may jointly file a motion to terminate so that he can pursue a visa application. The same procedure may apply to clients who are eligible for Special Immigrant Juvenile Status, the Deferred Action for Childhood Arrivals (DACA) program, and other types of benefits. Additionally, some immigrants who are eligible for naturalization may terminate their removal proceedings if they can present "exceptionally appealing or humanitarian factors."

When to file a motion to terminate?

A motion to terminate may be filed at any point during a removal proceeding. However, it is usually best to file a motion to terminate before a client has pled to the allegations in the NTA.

Most immigration cases have two hearings: a master calendar hearing and an individual hearing. At the master calendar hearing, the immigration judge asks the respondent to plead to the NTA and, based on those pleadings, sustains the government's charge. An individual hearing is essentially an immigration court trial, which is most commonly for the purpose of determining whether a respondent qualifies for a defense to removal.

An attorney who plans to file a motion to terminate will normally deny the government's charges at a master calendar hearing and inform the immigration judge that he plans to file a motion to terminate. The reason for this timing is that it is important to file a motion to terminate in the period before the immigration court sustains the government's charge because, during that period, the government has the burden of proving its charge by the high standard of "clear and convincing evidence." The immigration judge will then set dates for the motion and any opposition to be filed. The immigration judge may also set a separate hearing date to receive argument on the motion to terminate. If no separate hearing is scheduled, the immigration judge may set a regular individual hearing, at which time the court will hear arguments about the motion to terminate and, if it is denied, any defenses to removal that may be applicable. Accordingly, an attorney must be prepared to make a secondary argument on his client's behalf if a motion to terminate is denied, requiring a multi-tiered defense strategy.

How to file a motion to terminate?

The Immigration Court Practice Manual does not include any special procedures for motions to terminate. Therefore, a motion to terminate should be filed in accordance with the general motion procedures set forth in Chapter 5.2 of the practice manual. No fee is required to file a motion to terminate.

In sum, a motion to terminate can be an essential part of a litigation strategy, particularly for immigrants who have a strong argument that a criminal conviction should not be considered a deportable offense under the categorical approach.

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Source: https://www.caircoalition.org/2015/08/17/court-practice-tips-series-incorporating-motions-to-terminate-into-a-defense-strategy

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