Expediting a Case in Immigration Court

by Jason Dzubow on April 20, 2017

For the last few years, the “hot topic” in asylum has been the backlog–the very long delays caused by too many applicants and too few adjudicators. I recently wrote about the backlog at the Asylum Office and what can be done to expedite a case. One commenter suggested that I write a post about expediting cases in Immigration Court, and since I aim to please, here it is.

Courts are still wrapping up the last of Justice Marshall’s immigration cases.

The first thing to note is that the backlog in Immigration Court is huge. According to recent data, there are over 542,000 cases pending in court (not all of these cases are asylum). The average wait time for a case in Immigration Court is 677 days. The slowest court is Colorado, where wait times average 994 days. That’s a long time, especially if you are separated from family members while your case is pending. For what it’s worth, I have previously written about some ideas for reducing the wait time in Immigration Court (you will be shocked to learn that EOIR has not yet contacted me to implement these ideas!).

Second, advancing a case is not easy. The Immigration Court Practice Manual, page 101, specifically notes that, “Motions to advance are disfavored.” The motion should “completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced.” Health problems or separation from family may good reasons to advance. I discuss these and other possible reasons here (the post relates to affirmative asylum cases, but the same logic applies).

Third, expediting a case in Immigration Court is not as straightforward as expediting a case at the Asylum Office. There are different approaches that you can take, depending on the posture of your case. For advancing a case (and for the case itself), it is very helpful to have the assistance of an attorney. Indeed, according to TRAC Immigration, 91% of unrepresented asylum applicants in Immigration Court have their cases denied (whether they get other relief, like Withholding of Removal, I do not know). If you can afford a lawyer (or find one for free), it will be to your benefit in expediting and winning your asylum case in court.

OK, before we get to the various approaches for advancing a court case, let’s start with a bit of background. A case commences in Immigration Court when the Notice to Appear–or NTA–is filed with the court. The NTA lists the reasons why the U.S. government believes it can deport (or, in the more bowdlerized parlance of our time, “remove”) someone from the United States. After the court receives the NTA, it schedules the alien for an initial hearing, called a Master Calendar Hearing (“MCH”). At the MCH, the alien–hopefully with the help of an attorney–tells the Immigration Judge (“IJ”) whether the allegations in the NTA are admitted or denied, and whether the alien agrees that he can be deported. In most asylum cases, the alien admits that he is deportable, and then informs the Judge that his defense to deportation is his claim for asylum. The IJ then schedules the alien for a Merits Hearing (also called an Individual Hearing), where the alien can present his application for asylum, and either receive asylum (or some other relief) or be ordered deported from the United States. Depending where in this process your case is, the procedures to expedite vary.

If you have the NTA, but the MCH is not yet scheduled: In some cases, the alien receives an NTA, but then waits many months before the MCH is scheduled. In this case, the delay usually lies with DHS (Department of Homeland Security), which issues the NTAs and files them with the Court, rather than with the Court itself. The Immigration Court has an automated number that you can call to check whether your case is scheduled for a hearing date. The phone number is 1-800-898-7180. Follow the prompts and enter your nine-digit Alien number (also called an “A number”). The system will tell you whether your case is scheduled and the date of the next hearing.

If the system indicates that your “A-number was not found,” this probably means that the NTA has not yet been submitted to the Court. Contact the local DHS/ICE Office of the Chief Counsel and talk to the attorney on duty. Perhaps that person can help get the NTA filed with the Court, so the case can begin.

If your A-number is in the system, but there is no MCH scheduled, contact the Immigration Court directly to ask the clerk for an update. If the Court has the case, it may be possible to file a motion (a formal request) to schedule the case. However, if an IJ is not yet assigned to the case, such a request may disappear into the void once it is filed. Most lawyers (including me) would generally not file a motion until a Judge is assigned, as it is probably a waste of time, but maybe it is possible to try this, if your lawyer is willing.

While you are waiting for the Court to docket your case (i.e., give you a court date), you can gather evidence and complete your affidavit. That way, once the case is on the schedule, you will be ready to file your documents and ask to expedite.

If the MCH is scheduled: Sometimes, MCHs are scheduled months–or even years–in the future. If your case is assigned to an IJ and you have a MCH date, there are a couple options for expediting.

First, you can file a motion to advance the date of the MCH. If the MCH is sooner, the final (Merits) hearing will be sooner as well. Whether the IJ will grant the motion and give you an earlier appointment is anyone’s guess. Some IJs (and their clerks) are good about this; others, not so much.

Second, you can request to do the MCH in writing (in lieu of attending the hearing in-person). Check the Immigration Court Practice Manual, pages 70 to 72, for information about filing written pleadings. If the Judge allows this, you can avoid attending the MCH and go directly to the Merits Hearing. Just be sure that your affidavit and all supporting documents are submitted, so you are ready to go if and when the IJ schedules you for a final hearing.

Many attorney, including me, do not like filing motions to advance the MCH or motions for a written MCH. The reason is because they often do not work, and so what happens is this: You prepare and file the motion, call the Court several times, and ultimately have to attend the MCH anyway. When lawyers spend time doing extra work, it is fair for them to charge the client additional money. So don’t be surprised if your lawyer tells you that filing a motion will cost extra.

At the MCH: Typically, when you go to the MCH, the IJ gives you the first date available on her calendar for a Merits Hearing. But there are a few things you can do to try to get the earliest possible date.

One thing is to complete the entire case (the affidavit and all supporting documents) and give them to the IJ at the MCH. That way, if there happens to be an early opening, you can take the date (and sometimes, IJs do have early dates–for example, if another case has been cancelled). Many lawyers (again, including me) don’t love this because it requires us to do all the work in advance, and it often does not help. Don’t be surprised if the lawyer wants to charge extra for getting the work done early (many lawyers–and other humans–prefer to put off until tomorrow what we do not need to do today).

Second, you (or your lawyer) can try to talk to the DHS attorney prior to the MCH to see whether any issues in the case can be narrowed (usually, it is not possible to talk to DHS about the substance of the case prior to the MCH, as they have not yet reviewed the file). If that happens, maybe you will need less time to present the case, and you can tell the IJ that you expect a relatively short Merits Hearing. It may be easier for the IJ to find a one-hour opening on his calendar than a three hour opening (normally IJs reserve a three-hour time slot for asylum cases), and so you may end up with an earlier date. Even if you cannot talk with the DHS attorney, you can tell the IJ that you expect to complete the case in an hour and try to convince him to give you an earlier date, if he has one.

Third, if you have a compelling reason for seeking an earlier Merits Hearing, tell the IJ. If you have evidence demonstrating the need for an earlier date, give it to the IJ. Maybe the Judge will not have an earlier date available immediately, but at least he can keep the situation in mind and accommodate you if an earlier date opens up.

Finally, if you simply arrive early at the MCH and get in line, you may end up with an earlier Merits Hearing date than if you show up late to the MCH since IJs usually give out their earlier dates first.

After the MCH, but before the Merits Hearing: Waiting times between the MCH and the Merits Hearing are very variable, depending on the Immigration Judge’s schedule. Assuming that the IJ has given you the first available Merits Hearing date (which is normal – see the previous section), there is not much point in requesting an earlier date immediately after the MCH. Maybe if you wait a few months and if luck is on your side, a spot will open up and your request will be granted. Or–if the Judge has an effective clerk–you can file a motion to advance, and the clerk will save it until a spot opens up for you.

Another possibility is to talk to the DHS attorney to see whether issues can be narrowed, which might make it more likely that the case can be advance (see the previous section).

Some words of caution: Keep in mind that the Immigration Court system is a mess. Judges come and go. Priorities shift, which sometimes causes cases to be moved. It is quite common for court dates to change. Even if you do nothing, a far-off date may be rescheduled to an earlier day, or an upcoming hearing might be delayed. If you successfully advance your court date, it is possible that the Court will later rescheduled your case to a more distant date (this happened to us once). It is difficult to remain patient (and sane) through it all, but maybe being aware of this reality will somehow help.

Also, remember to make sure that your biometrics (fingerprints) are up to date. If not, you may arrive at the Merits Hearing only to have it delayed because the background checks were not complete.

Finally, do not give up. Immigration Judges are human. If they see a compelling reason to expedite a case, most of them will try to help. Explain your situation to the Judge, or let your lawyer explain, and maybe you will end up with an earlier date.

{ 25 comments… read them below or add one }

Nona October 20, 2017 at 5:31 pm

Hello jason…thanks for helping us with your answers..you are a saver.
I got referal to immigration judge and my MCH after 1 year and for family situation i want to leave as early as possible My question what if i left the US without doing voluntary departure what would be the consequences ? Will it affect also my famiy member who is under my asylum application

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Jason Dzubow October 22, 2017 at 9:30 am

You can try to expedite the MCH to ask for voluntary departure. If you get that, it is somewhat easier to return to the US. If you just leave before the MCH, the judge will order you deported, and you will have a more difficult time coming back here. If you have dependents in your case, they could be affected too, but it depends on the case and so they/you should talk to a lawyer about the specific situation. Take care, Jason

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Wase October 15, 2017 at 12:46 am

Hi Jason How R u? My wife and 3 kids are back home and I am on asylum in San Francisco. I already have an EAD since July 2017 but my case is still pending. Is family separation be a catalyst to expedite my case? I also have a good, solid case due to obvious reasons in my country and personal experience. Thank you.

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Jason Dzubow October 15, 2017 at 9:51 am

Family separation, especially if family members are in danger or have health problems, is a good reason to expedite. The above post is about expediting in court. I also did a post about expediting if your case is at the asylum office – on March 30, 2017. Maybe that would help. Take care, Jason

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Tokichaw October 9, 2017 at 7:50 pm

Dear Jason ,
Thank you for usual helpful post .I have the following questiones . How long it will take on the average from your experience to get master and merit hearing appointment at Baltimore , Maryland after the first day of referral to the court ? What is the average aproval rate of this court in general ?

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Jason Dzubow October 10, 2017 at 6:25 am

Usually, cases are completed in Baltimore from beginning to end in 1 to 2 years, but it depends on the judge and on luck. As for the grant rate, it varies by judge. You can Google “TRAC Immigration” and find a website that lists judges and their grant rates. Take care, Jason

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Tokichaw October 11, 2017 at 8:06 pm

Thank you for usual swift reply and I have one more question . How long it take on the average from your experience to get the master hearing appointment date in the system ? Is there a means to advance it ?

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Jason Dzubow October 12, 2017 at 6:10 am

It usually take a few months, but it varies depending on your court and your judge. Maybe you can speed things up by asking DHS to file the Notice to Appear (which starts the case) faster. You can find their contact info if you follow the link at right called DHS Office of the Chief Counsel. Take care, Jason

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Tokichaw October 12, 2017 at 4:28 pm

Thank you .

Takawira Mugwadi September 6, 2017 at 7:52 am

Hi Jason
I filed my adjustment of status in 2011, I was in detention at the time, in fact I got married in there, which was quite the experience.
The IJ approved my petition in December of 2014 and the BIA appealed within 30 days. Having run out of money and with an ailing wife(her health is what allowed for us to use the form I-601 because in the 20 years I’ve been in the states I did catch some misdemenours, DUi’s and such, although the judge did not invoke heightened standard) I did not furnish the BIA with any response as I couldn’t afford legal assistance and none of the free lawyers would touch my case as they viewed it as a lose-lose situation.
2015 went by and I received a green card in the mail on November 28th, of course I was aware that my case was still pending so I didn’t find any cause to celebrate. I did go to the USCIS offices and they told me after going through their files that the card was good and I could be let back in the country if I left because the ICE at ports of entry use the same system they use which is different for the justice department files. So he was saying even though my case was pending with the DOJ, I was good with the USCIS. They did admit to not having been faced with such a situation before leading me to suspect that the card was disbursed accidentally, which I highly doubted. They even returned my $10k bond money, they actually contacted my lawyer and told him to come and get it. My own lawyer found it a tricky situation as he had never had that happen with any previous clients that a card would be issues, and bond returned before the conclusion of the case.
2016 March came along and the BIA finally sent their response which in this case was to return the case to the judge to reconsider. They mentioned my failure to respond, and the judge not heightening standard and asked her to go over her decision.
So now my MCH is scheduled for October 2018 by which time it will have been a little over 7 years since I filed. I’m exhausted, it’s been difficult and I know I can’t make it to October next year.
How do I go about requesting an earlier court date? I read your article and it seems to apply only to asylum seekers. I know it’s rare to be granted the request but I need to try something. Please help and thanks in advance. I just need to go home to see my last remaining grandparent before I can never see her again. I apologize for the long, rambling comment.

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Jason Dzubow September 8, 2017 at 6:16 am

The post above could apply to any type of case. You (or hopefully, your lawyer) can file a motion to advance the case. Given that the case is tricky, this might not be practical, as you may need a Master Calendar Hearing to discuss the case with the judge. Also, your lawyer (or you) could try to talk to the DHS attorney to see their position on the matter. In reality, it will be difficult to speed things up, but it may be possible and it is worth a try, if you want. Good luck, Jason

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Taka September 8, 2017 at 10:13 am

So it is possible to talk with the DHS attorney outside of formal court hearings? How does one go about doing that, can I call them or mail them, or set up an appointment?

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Jason Dzubow September 8, 2017 at 3:51 pm

You can call them – there is a link at right called DHS Office of the Chief Counsel where you can find their phone number. I suppose you can also try to go in person or write them, but I think you should call first. Take care, Jason

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Maya September 5, 2017 at 2:30 pm

Hi Jason…
My case was referred to the court by USCIS and my individual hearing is in 13 months, pretty far out, I want to travel to a different state to visit family and might spend about 4 months there. Do I need to inform the court about this travel, I will be returning back.

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Jason Dzubow September 8, 2017 at 5:34 am

If you are not changing your address, and you are only going for a temporary visit, you do not need to inform the court or file a change of address form. Take care, Jason

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Wael August 15, 2017 at 1:04 am

Hello!

I really appreciate your blog, and your continuous advice on the comment section! I have a question regarding your experience with the Asylum schedule bulletin. I read your article about it, and you emphasized how it’s just a very rough estimate. It’s been a while since your wrote that blog. So after several years of the asylum schedule bulletin being in place, how accurate is it from your experience with it and your clients? Has it been accurate at all? Not accurate in sense that they schedule the interviews later or earlier? Or there is no consistency at all?

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Jason Dzubow August 15, 2017 at 6:43 am

I think it is pretty accurate – it tells us who is being interviewed now. However, in terms of predicting when a future case will be interviewed, I think it is not particularly accurate. And the further away your interview date, the less accurate it is. But remember that it was not designed to tell you how long you will wait for an interview; it was only designed to tell you who is being interviewed now. So if you see that your filing date is coming in a few months, you should try to make sure you are ready for the interview and all evidence is submitted. Take care, Jason

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Maya August 10, 2017 at 9:18 am

Thanks again, Jason.
If I don’t add my spouse as a dependent, but list his name on my application, will he still need to appear in the individual hearing just because he is in the U.S at the time of hearing?

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Jason Dzubow August 10, 2017 at 9:54 am

If he is not part of the case (he is not an applicant in an affirmative asylum case or a respondent in a defensive case), he does not need to appear. Though it might seem strange to the adjudicator that he does not come as a witness if he knows about your case. Take care, Jason

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Nabeel July 17, 2017 at 9:09 pm

this article is very helpful/ i had my MCH hearing and then got scheduled for a merit hearing (individual hearing)! 10 days prior to my merit hearing my judge has passed away and then they called me to say that they cancelled my merit hearing appointment and that in one month they’ll send me a new MCH hearing date with the new judge!!!!!!!! i have been waiting for almost 4 years between interviews and MCH and merit hearings with my old judge and now they’re asking me to repeat the whole process. i really have pretty good reasons to expedite my case and i need information on how to submit a motion to expedite my case in the immigration court of NY, and i also need to know if i can find samples of motions done before and what legal documents should i also provide with the motion? i am not sure if there is also an application for it or if its just a letter that has to be written in a legal way

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Jason Dzubow July 18, 2017 at 6:40 am

I guess the fact that the judge died is at least a good excuse for the delay. As for example motions, maybe you can try Googling the “Immigration Judge Bench Book”, though I am not sure that has examples or even if it was taken down (thanks to the Trump Administration). Your best bet, though, is to find an attorney to assist you – it makes a big difference in a case. If you cannot afford a lawyer, I did a post about finding a free lawyer on September 22,2016 – maybe that would help. Take care, Jason

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Maya July 13, 2017 at 1:56 am

Hi Jason,
I have my MCH in 2 weeks. Is it okay if I take my boyfriend with me to the court. He is on F1 student visa.

I would like to introduce him in the court if possible and explain the situation that he will need to leave the country in next 5 months so an earlier individual hearing would really be helpful so we could decide on our future.

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Jason Dzubow July 13, 2017 at 6:31 am

You can take your boyfriend or anyone else – the MCH is open to the public. I doubt the judge will want to talk to him or hear much about why you need a sooner hearing date, but you can try, and maybe the judge will be able to help. For most people in court, it is a very good idea to bring a lawyer. And in some cases, the judge will not schedule you for a final hearing, but instead will tell you to get a lawyer and return for another MCH. Take care, Jason

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Maya August 9, 2017 at 4:46 pm

Thanks, Jason.
In an individual hearing, will the dependent (Spouse) be present at the time the principal applicant testifies? Or, they will be asked to step out like other witnesses?

Thanks!

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Jason Dzubow August 9, 2017 at 10:29 pm

When I have had cases like this, the spouse remains in the courtroom to hear the testimony. Different judges may have different approaches to this situation though, so some judges might require the spouse to wait outside the courtroom, like other witnesses normally do. Take care, Jason

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