December 27, 2021

Via Email Only

Hon. Khalilah Taylor, Assistant Chief Immigration Judge

Ted Weiss Federal Building
290 Broadway, Suite 2900
New York, NY 10007

Hon. Anna C. Little, Assistant Chief Immigration Judge

26 Federal Plaza, 12th Floor, Room 1237
New York, NY 10278

Hon. Ubaid ul-Haq, Assistant Chief Immigration Judge

201 Varick Street, 5th Floor Room 507
New York, NY 10014

Dear Hon. Judges Taylor, Little, and ul-Haq:

The undersigned immigration legal service providers are writing to advise you of various
procedural problems we have been experiencing with NYC Executive Office for Immigration
Review (EOIR) Immigration Court hearings, and in particular with Master Calendar Hearings.
We are hoping that you can help us resolve these issues in a timely manner and provide more
transparency to us as stakeholders, as the issues impact our clients’ due process rights. We have
outlined the issues below and look forward to hearing your solutions.

Issues with Master Calendar Hearings:

We appreciate the sharing of information by local EOIR, particularly the Excel spreadsheets and
emails circulated by John Martin, which provide individual judges’ preferences regarding
manner of appearance and whether represented respondents’ appearance is waived. We note,
however, that some of the information in those communications contradict other New York City
EOIR Courts’ Standing Orders, which state that an attorney of record can appear via telephone
for Master Calendar Hearings (MCHs) without the need for a motion seeking remote appearance,
and also state that the respondent’s appearance at remote MCHs is waived. This contradiction
has been problematic for our staff and clients. At best, this adds an unnecessary burden of
confirming with EOIR staff whether remote appearance is allowed at each MCH; at worst, it may
lead to dire consequences, including in absentia orders of removal, for our clients.

As an example, one of our staff had a MCH in October 2021 before an Immigration Judge (IJ) at
26 Federal Plaza who indicated that all MCHs must be in person, despite the standing order and
despite our staff’s request to appear remotely.

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In another instance in October 2021, our staff attorney appeared in person with the respondent at
9:00am at Varick Street for a 9:30am MCH and was told by court personnel that the IJ was
conducting hearings only via WebEx that day, and that the attorney needed to leave to find a
computer in order to attend remotely. The court personnel claimed that they had not notified the
attorney in advance because her EOIR-28 was allegedly not on file, but in fact her EOIR-28 had
been on file since June 2020. She and the respondent both raced to our office and rushed to set
up WebEx so that they would be on time and avoid an in absentia order. The attorney had
prepared paper copies of her filings but was unable to file them because same-day filings are not
allowed for WebEx hearings.

Additionally, despite standing orders for each court, it is still unclear whether our staff need to
confirm in advance with the legal assistant for every MCH regarding appearances via WebEx or
OpenVoice.

Given our staff’s increased need to contact legal assistants about these and other matters, it
would be immensely helpful if you could provide the email addresses for each legal assistant.
Without the email addresses, our staff have no choice but to make repeated phone calls to the
legal assistants, who have been difficult to reach by phone. These communication problems are
extremely frustrating.

Further, it is inefficient and wasteful for our staff to prepare for hearings that end up canceled or
rescheduled, and to spend time verifying which hearings are happening and in what format.

Motion Practice and Proper Notice to Attorneys of Record:

We have been experiencing significant delays in obtaining decisions on pending motions.
Motions to advance Individual Hearings (IHs) remain undecided for many months, which can be
prejudicial to respondents who are seeking advanced dates due to exigent circumstances.
Granting these motions in a timely manner would not only be beneficial to our clients, but would
also advance administrative efficiency, since it would help to alleviate some of the backlog in the
courts.

It appears that motions and filings often do not reach the IJs in a timely manner. As an example,
one of our staff attorneys filed complex motions well before a non-detained MCH and spent
several hours preparing for oral arguments. However, the IJ stated at the hearing that her legal
assistant gave her the file the night before the hearing and thus the IJ was not ready to discuss the
motion in any detail. Our client is elderly and medically vulnerable and was prejudiced by the
delay and the need to return for another MCH.

In another instance, for an attorney with an IH on November 5, 2021 at 26 Federal Plaza the
attorney had timely filed all evidence by the 30-day call-up deadline. However, at the IH, the IJ
stated that they could not find these filings in the court’s file.

Additionally, our staff frequently do not receive timely notice of late-rescheduled hearings. At
all three courts, MCHs and IHs are often rescheduled or cancelled at the last minute, without a
new hearing notice ever being provided. Our staff must monitor the EOIR portal every day to

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keep abreast of changes made without proper notice. Further, when EOIR does reschedule
hearings, the attorney of record often does not receive notice or an advance opportunity to
confirm their availability for a new court date. This creates unnecessary scheduling conflicts and
extra motions, as we must then submit a motion to reschedule due to the conflict.

As an example, one of our staff attorneys had an IH scheduled for late November 2021 at 26
Federal Plaza. It was cancelled without notice several weeks prior to the call-up date. The portal
showed “no future hearings pending,” so our attorney prioritized other cases with upcoming
hearings instead. The attorney later checked the portal to find that the IH had been advanced to a
mid-November date for which the filing deadline had already passed. The attorney spent the
weekend collecting necessary documents and preparing a motion to accept late filing of
evidence. The attorney called the legal assistant to inquire about the case, since it had been on
the IJ’s docket for at least a year, but they were unable to reach the legal assistant, did not
receive a call back, and never received a new hearing notice with the mid-November date.

As another example, a MCH scheduled for Tuesday, October 12, 2021 at Varick Street was
cancelled with no notice other than an update to the EOIR portal on Friday, October 8, 2021. At
that point, the portal indicated that the respondent’s next hearing was an IH on Tuesday,
November 2, 2021. However, on October 29, 2021, again the Friday before a Tuesday hearing,
the attorney received an email from the court stating that the hearing had been further postponed
until November 15, 2021. This is a detained client for whom delay is prejudicial. The constant
last-minute changes in schedule impair our ability to fully represent our clients and to prepare
properly for hearings.

As a third example, a MCH scheduled for October 15, 2021, was cancelled, and the court mailed
a cancellation notice to our staff attorney’s previous employer, even though an EOIR-28 with
counsel’s current office was on file with the court, and the court had previously sent notices to
our office. We learned of the cancellation only two days before the hearing, when a former
colleague at the former employer’s office advised our staff attorney of the cancellation notice.

In addition, sometimes written notice of hearing cancellations does not get to counsel of record
until after the hearing date. During the COVID-19 pandemic, the post office may be taking
longer to deliver first-class mail than your staff realize. Proper notice must be provided as soon
as possible to respondent’s counsel regarding any changes in hearing dates.

Technical Issues:
There have been numerous problems with the audibility of OpenVoice. At one hearing, our staff
attorney could not hear the U.S. Immigration and Customs Enforcement (ICE) Assistant Chief
Counsel (ACC) at all. At another hearing, our staff attorney could hear only about two-thirds of
what the ICE ACC said and about half of what the IJ said. The hearing was rescheduled to a
later date, partly because of the audio problems and partly because neither the IJ nor the ICE
ACC had the case file.

We are acutely aware of the challenges EOIR has faced during the pandemic. Our clients and
our staff have faced our own struggles in preparing for their Immigration Court hearings. We
take pride in being zealous advocates. However, our ability to competently represent our clients

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requires more transparency and improved procedures within the Immigration Courts. We ask
that you consider and remedy the challenges respondents are facing with these procedural issues.
If EOIR continues to conduct hearings during this pandemic, then we ask that it be done in a
manner that respects our staff’s efforts and our clients’ due process rights.

Very sincerely yours,

Hasan Shafiqullah
Attorney-in-Charge
Immigration Law Unit
The Legal Aid Society
199 Water Street, 3rd Floor
New York, NY 10038
(646) 745-7166 cell
(646) 616-9232 fax
HHShafiqullah@legal-aid.org
Pronouns: he/him/his

The Legal Aid Society

Urban Justice Center Domestic Violence Project
Central American Legal Assistance
UnLocal
Central American Refugee Center (CARECEN – NY)
Safe Passage Project
Catholic Migration Services
Legal Services NYC

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