The rules of practice in this part are applicable to adjudicatory proceedings before Administrative Law Judges of the Executive Office for Immigration Review, United States Department of Justice, with regard to unlawful employment cases under section 274A of the INA, unfair immigration-related employment practice cases under section 274B of the INA, and document fraud cases under section 274C of the INA. Such proceedings shall be conducted expeditiously, and the parties shall make every effort at each stage of a proceeding to avoid delay. To the extent that these rules may be inconsistent with a rule of special application as provided by statute, executive order, or regulation, the latter is controlling. The Federal Rules of Civil Procedure may be used as a general guideline in any situation not provided for or controlled by these rules, by the Administrative Procedure Act, or by any other applicable statute, executive order, or regulation.
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RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD
For purposes of this part:
Adjudicatory proceeding means an administrative judicial-type proceeding, before the Office of the Chief Administrative Hearing Officer, commencing with the filing of a complaint and leading to the formulation of a final agency order;
Administrative Law Judge means an Administrative Law Judge appointed pursuant to the provisions of 5 U.S.C. 3105;
Administrative Procedure Act means those provisions of the Administrative Procedure Act, as codified, which are contained in 5 U.S.C. 551 through 559;
Certification means a formal assertion in writing of the specified fact(s), signed by the person(s) making the certification and thereby attesting to the truth of the content of the writing, except as follows:
(1) Certified court reporter means a person who has been deemed by an appropriate body to be qualified to transcribe or record testimony during formal legal proceedings,
(2) Certified mail means a form of mail similar to registered mail by which sender may require return receipt from addressee, and
(3) Certified copy means a copy of a document or record, signed by the officer to whose custody the original is entrusted, thereby attesting that the copy is a true copy;
Certify means the act of executing a certification;
Chief Administrative Hearing Officer is the official who, under the Director, Executive Office for Immigration Review, exercises administrative supervision over the Chief Administrative Law Judge and others assigned to the Office of the Chief Administrative Hearing Officer (OCAHO). Subject to the supervision of the Director, the Chief Administrative Hearing Officer shall be responsible for the management and direction of hearings and duties within the jurisdiction of OCAHO. The Chief Administrative Hearing Officer shall have no authority to direct the result of an adjudication assigned to an administrative law judge unless done so in accordance with the review process in this part, provided, however, that nothing in this part otherwise shall be construed to limit the authority of the Chief Administrative Hearing Officer to carry out his or her duties. In coordination with the Director, and following consultation with the Chief Administrative Law Judge, the Chief Administrative Hearing Officer is authorized to:
(1) Advise the Office of Policy on the issuance of operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities;
(2) Advise the Office of Policy on the provision of appropriate training of the administrative law judges and other OCAHO staff on the conduct of their authorities and duties;
(3) Direct the conduct of employees assigned to OCAHO to ensure the efficient disposition of all pending cases, including the authority to regulate the initial assignment of administrative law judges to cases and to set priorities or time frames for the resolution of cases;
(4) Evaluate the activities performed by OCAHO by making appropriate reports and inspections, and taking corrective action where needed, provided that nothing in this part shall be construed as providing for the performance evaluation of an administrative law judge;
(5) Adjudicate cases on administrative review, as provided in this part; and
(6) Exercise such other authorities as the Director may provide;
Chief Administrative Law Judge means an Administrative Law Judge who, in addition to performing the general duties of an Administrative Law Judge, serves as the immediate supervisor of all other Administrative Law Judges in the Office of the Chief Administrative Hearing Officer and performs other regulatory duties as identified in this part and elsewhere. Subject to the supervision of the Director and the Chief Administrative Hearing Officer, the Chief Administrative Law Judge shall be responsible for the supervision, direction, and scheduling of the administrative law judges in the conduct of the hearings and duties assigned to them. The Chief Administrative Law Judge shall have no authority to direct the result of an adjudication assigned to another Administrative Law Judge, provided, however, that nothing in this part shall otherwise be construed to limit the authority of the Chief Administrative Law Judge to carry out his or her duties. In coordination with the Director and the Chief Administrative Hearing Officer, the Chief Administrative Law Judge is authorized to:
(1) Advise the Office of Policy on the issuance of operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities;
(2) Advise the Office of Policy on the provision of appropriate training of the administrative law judges and other OCAHO staff on the conduct of their authorities and duties;
(3) Direct the conduct of employees assigned to an administrative law judge team in OCAHO to ensure the efficient disposition of all pending cases, including the authority to regulate the assignment of administrative law judges to cases to promote administrative efficiency and the authority to set priorities or time frames for the resolution of cases;
(4) Evaluate the activities performed by administrative law judge teams by making appropriate reports and inspections, and take corrective action where needed, provided that nothing in this part shall be construed as providing for the performance evaluation of an administrative law judge;
(5) Adjudicate cases as an administrative law judge; and
(6) Exercise such other authorities as the Director or Chief Administrative Hearing Officer may provide;
Complainant means the Department of Homeland Security in cases arising under sections 274A and 274C of the INA. In cases arising under section 274B of the INA, “complainant” means the Special Counsel (as defined in this section), and also includes the person or entity who has filed a charge with the Special Counsel, or, in private actions, an individual or private organization;
Complainant means the Department of Homeland Security in cases arising under sections 274A and 274C of the INA. In cases arising under section 274B of the INA, “complainant” means the Special Counsel (as defined in this section), and also includes the person or entity who has filed a charge with the Special Counsel, or, in private actions, an individual or private organization;
Complaint means the formal document initiating an adjudicatory proceeding;
Consent order means any written document containing a specified remedy or other relief agreed to by all parties and entered as an order by the Administrative Law Judge;
Debt Collection Improvement Act means the Debt Collection Improvement Act of 1996, Pub. L. 104-134, Title III, 110 Stat. 1321 (1996);
Decision means any findings of fact or conclusions of law by an Administrative Law Judge or the Chief Administrative Hearing Officer;
Document fraud cases means cases involving allegations under section 274C of the INA.
Entry means the date the Administrative Law Judge, the Chief Administrative Hearing Officer, or the Attorney General signs the order;
Final agency order is an Administrative Law Judge's final order, in cases arising under sections 274A, 274B, and 274C of the INA, that has not been modified, vacated, or remanded by the Chief Administrative Hearing Officer pursuant to § 68.54, referred to the Attorney General for review pursuant to § 68.55(a) or accepted by the Attorney General for review pursuant to § 68.55(b)(3). Alternatively, if the Chief Administrative Hearing Officer modifies or vacates the final order pursuant to § 68.54, the modification or vacatur becomes the final agency order if it has not been referred to the Attorney General for review pursuant to § 68.55(a) or accepted by the Attorney General for review pursuant to § 68.55(b)(3). If the Attorney General enters an order that modifies or vacates either the Chief Administrative Hearing Officer's or the Administrative Law Judge's order, the Attorney General's order is the final agency order.
Final order is an order by an Administrative Law Judge that disposes of a particular proceeding or a distinct portion of a proceeding, thereby concluding the jurisdiction of the Administrative Law Judge over that proceeding or portion thereof;
Hearing means that part of a proceeding that involves the submission of evidence, either by oral presentation or written submission;
Interlocutory order means an order that decides some point or matter, but is not a final order or a final decision of the whole controversy; it decides some intervening matter pertaining to the cause of action and requires further steps to be taken in order for the Administrative Law Judge to adjudicate the cause on the full merits;
INA means the Immigration and Nationality Act of 1952, ch. 477, Pub. L. 82-414, 66 Stat. 163, as amended;
Issued as used in section 274A(e)(8) and section 274C(d)(5) of the INA means the date on which an Administrative Law Judge's final order, the Chief Administrative Hearing Officer's order, or an adoption, modification, or vacation by the Attorney General becomes a final agency order;
Motion means an oral or written request, made by a person or a party, for some action by an Administrative Law Judge;
Notice of hearing means the Notice of Case Assignment or other, similar document served by the Office of the Chief Administrative Hearing Officer on the parties to a case.
Order means a determination or mandate by an Administrative Law Judge, the Chief Administrative Hearing Officer, or the Attorney General that resolves some point or directs some action in the proceeding;
Ordinary mail refers to the mail service provided by the United States Postal Service using only standard postage fees, exclusive of special systems, electronic transfers, and other means that have the effect of providing expedited service;
Party includes all persons or entities named or admitted as a complainant, respondent, or intervenor in a proceeding; or any person filing a charge with the Special Counsel under section 274B of the INA, resulting in the filing of a complaint, concerning an unfair immigration-related employment practice;
Pleading means the complaint, the answer thereto, any motions, any supplements or amendments to any motions or amendments, and any reply that may be permitted to any answer, supplement, or amendment submitted to the Administrative Law Judge or, when no judge is assigned, the Chief Administrative Law Judge;
Prohibition of indemnity bond cases means cases involving allegations under section 274A(g) of the INA;
Respondent means a party to an adjudicatory proceeding, other than a complainant, against whom findings may be made or who may be required to provide relief or take remedial action;
Special Counsel means the Special Counsel for Unfair Immigration-Related Employment Practices appointed by the President under section 274B of the INA, or his or her designee or in the case of a vacancy in the Office of Special Counsel, the officer or employee designated by the President who shall act as Special Counsel during such vacancy;
Unfair immigration-related employment practice cases means cases involving allegations under section 274B of the INA;
Unlawful employment cases means cases involving allegations under section 274A of the INA, other than prohibition of indemnity bond cases.
(a) Service of complaints, notices, written orders, and decisions shall be made by the Office of the Chief Administrative Hearing Officer or the Administrative Law Judge to whom the case is assigned either:
(1) By delivering a copy to the individual, party, partner of a party, officer of a corporate party, registered agent for service of process of a corporate party, or attorney or representative of record of a party;
(2) By leaving a copy at the principal office, place of business, or residence of a party;
(3) By mailing to the last known address of such individual, partner, officer, or attorney or representative of record; or
(4) By delivering a copy or providing notification by email to such individual, party, partner of a party, officer, registered agent for service of process, or attorney or representative of record of a party.
(b) Service of the complaint and notice of hearing is complete upon receipt by the addressee.
(c) In circumstances where the Office of the Chief Administrative Hearing Officer or the Administrative Law Judge encounters difficulty with perfecting service, the Chief Administrative Hearing Officer or the Administrative Law Judge may direct that a party execute service of process.
(a) Generally. An individual must file a charge with the Special Counsel within one hundred and eighty (180) days of the date of the alleged unfair immigration-related employment practice.
(b) The Special Counsel shall, within one hundred and twenty (120) days of the date of receipt of the charge:
(1) Determine whether there is a reasonable cause to believe the charge is true and whether to bring a complaint respecting the charge with the Chief Administrative Hearing Officer within the 120-day period; or,
(2) Notify the party within the 120-day period that the Special Counsel will not file a complaint with the Chief Administrative Hearing Officer within the 120-day period.
(c) The charging individual may file a complaint directly with the Chief Administrative Hearing Officer within ninety (90) days after the date of receipt of notice that the Special Counsel will not be filing a complaint within the 120-day period. However, the Special Counsel's failure to file a complaint within the 120-day period will not affect the right of the Special Counsel to investigate the charge or bring a complaint within the 90-day period.
(a) Generally. The Administrative Law Judge to whom the case is assigned shall notify the parties of a date, time, and place set for hearing thereon or for a prehearing conference, or both.
(b) Place of hearing. In cases under sections 274A and 274C of the INA, pursuant to sections 274A(e)(3)(B) and 274C(d)(2)(B) of the INA, hearings shall be held at the nearest practicable place to the place where the person or entity resides or to the place where the alleged violation occurred. In cases under section 274B of the INA, pursuant to section 554 of title 5, United States Code, due regard shall be given to the convenience of the parties and the witnesses in selecting a place for a hearing. Hearings under sections 274A, 274B, and 274C of the INA may be conducted by video teleconference.
(a) Filing generally. This section applies to the filing of all documents in cases before OCAHO.
(1) Filing a complaint. Subject to the electronic filing requirements of paragraph (b) of this section, a party must file a complaint either:
(i) Electronically through OCAHO's electronic filing application; or
(ii) By filing an original and four copies with the Chief Administrative Hearing Officer.
(2) Filing pleadings and documents other than the complaint. Subject to the electronic filing requirements of paragraph (b) of this section, a party must file pleadings and documents, including any attachments, other than the complaint either:
(i) Electronically through OCAHO's electronic filing application; or
(ii) By filing an original and two copies with the Administrative Law Judge assigned to the case.
(b) Electronic filing —(1) Mandatory electronic filing. The Department of Homeland Security, the Department of Justice, and all attorneys or authorized representatives are required to electronically file all documents, including complaints, with OCAHO through OCAHO's electronic filing application. In individual cases, an Administrative Law Judge or the Chief Administrative Hearing Officer may require unrepresented complainants and respondents to electronically file documents where paper filing is infeasible or impracticable.
(2) Voluntary electronic filing. Subject to paragraph (b)(1) of this section, although not required, unrepresented complainants and respondents may electronically file documents with OCAHO through OCAHO's electronic filing application. If an unrepresented complainant or respondent opts to use OCAHO's electronic filing application for a case, the individual must electronically file all documents through OCAHO's electronic filing application for the duration of that case, unless the presiding Administrative Law Judge or the Chief Administrative Hearing Officer grants leave to opt out of electronic filing.
(3) Unavailability of electronic filing application. If OCAHO's electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline, or paper or email file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced five or fewer business days prior to the start of the outage will be treated as an unplanned outage.
(4) Discretion to accept paper or email filings. The Administrative Law Judges and the Chief Administrative Hearing Officer retain discretion to accept paper or email filings in all cases.
(5) Originals. Parties must make the originals of all filed documents available to OCAHO or the opposing party for review upon request.
(6) Classified information. Notwithstanding any other provisions of this part, classified information is never allowed to be electronically filed.
(7) Signatures on electronically filed documents. All documents filed electronically with OCAHO must have an original, handwritten ink signature; an encrypted, digital signature; an electronic signature; or a conformed signature. This paragraph (b)(7) is subject to the signature requirements of the application or document being submitted.
(8) Misuse. OCAHO retains the right to suspend a user's access to the OCAHO electronic filing application for repeated misuse or abuse of the system.
(c) Service of filings. The service of filings with OCAHO depends on whether all parties are using OCAHO's electronic filing application.
(1) When all parties are using the electronic filing application. If all parties in a specific case are using OCAHO's electronic filing application, the parties do not need to serve a document that is filed through OCAHO's electronic filing application on the opposing party. The OCAHO electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties to a case by email. The filing party must include a certificate of service stating that all parties are using OCAHO's electronic filing application and, therefore, no separate service was completed.
(2) When not all parties are using the electronic filing application. If one or more parties in a specific case are not using OCAHO's electronic filing application, or when the electronic filing application is unavailable, parties must serve a copy of all documents filed with OCAHO—except for the complaint as detailed in § 68.3—on all parties of record by one of the means specified in this paragraph (c)(2), regardless of whether the document is filed electronically or in paper with OCAHO. The filing party must include a certificate of service that specifies the date and manner of service on the other party or parties. When a party is represented by an attorney, service must be made upon the attorney. Service under this paragraph (b)(2) may be made:
(i) By personal delivery;
(ii) By mailing a copy to the last known address of the party or representative; or
(iii) By email, if the party being served has consented to receive electronic service of documents.
(3) Valid email address. Use of OCAHO's electronic filing application requires a valid email address for electronic service. OCAHO will use the email address provided by the parties when they register for the electronic filing application for electronic service on participating parties. Users must immediately update their electronic filing application account if their email address changes. OCAHO will consider service completed when the electronic notification is delivered to the last email address on file provided by the user.
(a) Requirements for all pleadings —(1) Caption. Every pleading must contain a caption setting forth the statutory provision under which the proceeding is instituted, the title of the proceeding, the case number assigned by the Office of the Chief Administrative Hearing Officer, the names of all parties (or, after the complaint, at least the first party named as a complainant or respondent), and a designation of the type of pleading ( e.g., complaint, motion to dismiss).
(2) Signatures. Every pleading must be signed by the party or person representing the party who is submitting the pleading. For pleadings filed by paper, the pleading must have an original, handwritten ink signature; an encrypted, digital signature; or an electronic signature. For pleadings filed through OCAHO's electronic filing application, the pleading must have an original, handwritten ink signature; an encrypted, digital signature; an electronic signature; or a conformed signature. This paragraph (a)(2) is subject to the requirements of the application or document being submitted.
(3) Date and contact information. All pleadings must contain the date the pleading is being filed, and must contain the mailing address, email address (if available), and telephone number of the party or person representing the party.
(4) Size and format of pleadings. Unless otherwise permitted by the Administrative Law Judge or the Chief Administrative Hearing Officer, all pleadings must be submitted on standard size (8
1/2 x 11) pages, whether filed electronically or in paper. The Administrative Law Judge or the Chief Administrative Hearing Officer may require that exhibits and other written material presented be indexed, paginated, and accompanied by a table of contents.
(b) A complaint filed pursuant to section 274A, 274B, or 274C of the INA shall contain the following:
(1) A clear and concise statement of facts, upon which an assertion of jurisdiction is predicated;
(2) The names and addresses of the respondents, agents, and/or their representatives who have been alleged to have committed the violation;
(3) The alleged violations of law, with a clear and concise statement of facts for each violation alleged to have occurred; and,
(4) A short statement containing the remedies and/or sanctions sought to be imposed against the respondent.
(5) The complaint must be accompanied by a statement identifying the party or parties to be served by the Office of the Chief Administrative Hearing Officer with notice of the complaint pursuant to § 68.3.
(c) Complaints filed pursuant to sections 274A and 274C of the INA shall be signed by an attorney and shall be accompanied by a copy of the Notice of Intent to Fine and Request for Hearing. Complaints filed pursuant to section 274B of the INA shall be accompanied by a copy of the charge, previously filed with the Special Counsel pursuant to section 274B(b)(1), and a copy of the Special Counsel's letter of determination regarding the charges.
(d) Illegible documents, whether handwritten, typewritten, photocopied, or otherwise, will not be accepted. Papers may be reproduced by any duplicating process, provided that all copies are clear and legible.
(e) All documents presented by a party in a proceeding must be in the English language or, if in a foreign language, accompanied by a certified translation.
(a) Generally. In computing any period of time under these rules or in an order issued hereunder, the time begins with the day following the act, event, or default, and includes the last day of the period unless it is Saturday, Sunday, or legal holiday observed by the Federal Government in which case the time period includes the next business day. When the period of time prescribed is seven (7) days or less, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation.
(b) Computation of time for filing. Pleadings are not deemed filed until received by the Office of the Chief Administrative Hearing Officer or the Administrative Law Judge assigned to the case.
(c) Computation of time for service. (1) When service of pleadings (other than the complaint) is accomplished by mail, service is deemed effective at the time of mailing.
(2) When service of pleadings is accomplished by electronic filing through OCAHO's electronic filing application, service is deemed effective at the time that the electronic filing application provides a notification to all parties of the electronically filed pleading.
(3) Whenever a party has the right or is required to take some action within a prescribed period of time after the service upon such party of a pleading, notice, or other document (other than a complaint or a subpoena) and the pleading, notice, or other document is served by ordinary mail, five (5) days will be added to the prescribed period, unless the compliance date is otherwise specified by the Chief Administrative Hearing Officer or the Administrative Law Judge.
(a) Time for answer. Within thirty (30) days after the service of a complaint, each respondent shall file an answer.
(b) Default. Failure of the respondent to file an answer within the time provided may be deemed to constitute a waiver of his or her right to appear and contest the allegations of the complaint. The Administrative Law Judge may enter a judgment by default.
(c) Answer. Any respondent contesting any material fact alleged in a complaint, or contending that the amount of a proposed penalty or award is excessive or inappropriate, or contending that he or she is entitled to judgment as a matter of law, shall file an answer in writing. The answer shall include:
(1) A statement that the respondent admits, denies, or does not have and is unable to obtain sufficient information to admit or deny each allegation; a statement of lack of information shall have the effect of a denial (any allegation not expressly denied shall be deemed to be admitted); and
(2) A statement of the facts supporting each affirmative defense.
(d) Reply. Complainants may file a reply responding to each affirmative defense asserted.
(e) Amendments and supplemental pleadings. If a determination of a controversy on the merits will be facilitated thereby, the Administrative Law Judge may, upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, allow appropriate amendments to complaints and other pleadings at any time prior to the issuance of the Administrative Law Judge's final order based on the complaint. When issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and such amendments may be made as necessary to make the pleading conform to the evidence. The Administrative Law Judge may, upon reasonable notice and such terms as are just, permit supplemental pleadings setting forth transactions, occurrences, or events that have occurred or new law promulgated since the date of the pleadings and which are relevant to any of the issues involved.
(a) The respondent, without waiving the right to offer evidence in the event that the motion is not granted, may move for a dismissal of the complaint on the ground that the complainant has failed to state a claim upon which relief can be granted. The filing of a motion to dismiss does not affect the time period for filing an answer.
(b) The Administrative Law Judge may dismiss the complaint, based on a motion by the respondent or without a motion from the respondent, if the Administrative Law Judge determines that the complainant has failed to state a claim upon which relief can be granted. However, in the prehearing phase of an adjudicatory proceeding brought under this part, the Administrative Law Judge shall not dismiss a complaint in its entirety for failure to state a claim upon which relief may be granted, upon his or her own motion, without affording the complainant an opportunity to show cause why the complaint should not be dismissed.
(a) Generally. The Chief Administrative Hearing Officer is authorized to act on non-adjudicatory matters relating to a proceeding prior to the appointment of an Administrative Law Judge. After the complaint is referred to an Administrative Law Judge, any application for an order or any other request shall be made by motion which shall be made in writing unless the Administrative Law Judge in the course of an oral hearing consents to accept such motion orally. The motion or request shall state with particularity the grounds therefor, and shall set forth the relief or order sought. Motions or requests made during the course of any oral hearing or appearance before an Administrative Law Judge shall be stated orally and made part of the transcript. Whether a motion is made orally or in writing, all parties shall be given reasonable opportunity to respond or to object to the motion or request.
(b) Responses to motions. Within ten (10) days after a written motion is served, or within such other period as the Administrative Law Judge may fix, any party to the proceeding may file a response in support of, or in opposition to, the motion, accompanied by such affidavits or other evidence upon which he/she desires to rely. Unless the Administrative Law Judge provides otherwise, no reply to a response, counter-response to a reply, or any further responsive document shall be filed.
(c) Oral arguments or briefs. No oral argument will be heard on motions unless the Administrative Law Judge otherwise directs. Written memoranda or briefs may be filed with motions or answers to motions, stating the points and authorities relied upon in support of the position taken.
(a) At any time prior to the commencement of the hearing, the Administrative Law Judge may order any party to file a prehearing statement of position.
(b) A prehearing statement shall state the name of the party or parties on whose behalf it is presented and shall briefly set forth the following matters, unless otherwise ordered by the Administrative Law Judge:
(1) Issues involved in the proceedings;
(2) Facts stipulated to together with a statement that the party or parties have communicated or conferred in a good faith effort to reach stipulation to the fullest extent possible;
(3) Facts in dispute;
(4) Witnesses, except to the extent that disclosure would be privileged, and exhibits by which disputed facts will be litigated;
(5) A brief statement of applicable law;
(6) The conclusions to be drawn;
(7) The estimated time required for presentation of the party's or parties' case; and
(8) Any appropriate comments, suggestions, or information which might assist the parties or the Administrative Law Judge in preparing for the hearing or otherwise aid in the disposition of the proceeding.
(a) Purpose and scope. (1) Upon motion of a party or in the Administrative Law Judge's discretion, the judge may direct the parties or their counsel to participate in a prehearing conference at any reasonable time prior to the hearing, or in a conference during the course of the hearing, when the Administrative Law Judge finds that the proceeding would be expedited by such a conference. Prehearing conferences normally shall be conducted by conference telephonic communication unless, in the opinion of the Administrative Law Judge, such method would be impractical, or when such conferences can be conducted in a more expeditious or effective manner by correspondence or personal appearance. Reasonable notice of the time, place, and manner of the prehearing conference shall be given.
(2) At the conference, the following matters may be considered:
(i) The simplification of issues;
(ii) The necessity of amendments to pleadings;
(iii) The possibility of obtaining stipulations of facts and of the authenticity, accuracy, and admissibility of documents, which will avoid unnecessary proof;
(iv) The limitations on the number of expert or other witnesses;
(v) Negotiation, compromise, or settlement of issues;
(vi) The exchange of copies of proposed exhibits;
(vii) The identification of documents or matters of which official notice may be requested;
(viii) A schedule to be followed by the parties for completion of the actions decided at the conference; and
(ix) Such other matters, including the disposition of pending motions, as may expedite and aid in the disposition of the proceeding.
(b) Reporting. A verbatim record of the conference will not be kept unless directed by the Administrative Law Judge.
(c) Order. Actions taken as a result of a conference shall be reduced to a written order, unless the Administrative Law Judge concludes that a stenographic report shall suffice, or, if the conference takes place within seven (7) days of the beginning of the hearing, the Administrative Law Judge elects to make a statement on the record at the hearing summarizing the actions taken.
(d) Settlement officers and conferences. With the consent of all parties to a case, the presiding Administrative Law Judge may refer a case to another Administrative Law Judge—or, in cases under section 274B of the INA, to the Chief Administrative Hearing Officer—to act as a settlement officer in order to facilitate settlement negotiations between the parties.
(1) The settlement officer shall convene and preside over settlement conferences by video teleconference, in person, or by telephone.
(2) The settlement officer may require that a representative for each party be present at or participate in settlement conferences, and may require that the parties or agents of the parties with full settlement authority be present or available by telephone or video teleconference.
(3) Settlement proceedings under this paragraph shall be conducted in accordance with the confidentiality provisions outlined in 5 U.S.C. 574. The settlement officer shall not discuss any aspect of the case with the presiding Administrative Law Judge. Furthermore, any evidence regarding statements, conduct, offers of settlement, and concessions of the parties made in proceedings before the settlement officer shall be inadmissible in any proceeding before the presiding Administrative Law Judge, except by stipulation of the parties.
(a) Submission. Where the parties or their authorized representatives or their counsel have entered into a settlement agreement, they shall:
(1) Submit to the presiding Administrative Law Judge:
(i) The agreement containing consent findings; and
(ii) A proposed decision and order; or
(2) Notify the Administrative Law Judge that the parties have reached a full settlement and have agreed to dismissal of the action. Dismissal of the action shall be subject to the approval of the Administrative Law Judge, who may require the filing of the settlement agreement.
(b) Content. Any agreement containing consent findings and a proposed decision and order disposing of a proceeding or any part thereof shall also provide:
(1) That the decision and order based on consent findings shall have the same force and effect as a decision and order made after full hearing;
(2) That the entire record on which any decision and order may be based shall consist solely of the complaint, notice of hearing, and any other such pleadings and documents as the Administrative Law Judge shall specify;
(3) A waiver of any further procedural steps before the Administrative Law Judge; and
(4) A waiver of any right to challenge or contest the validity of the decision and order entered into in accordance with the agreement.
(c) Disposition. In the event an agreement containing consent findings and an interim decision and order is submitted, the Administrative Law Judge, within thirty (30) days or as soon as practicable thereafter, may, if satisfied with its timeliness, form, and substance, accept such agreement by entering a decision and order based upon the agreed findings. In his or her discretion, the Administrative Law Judge may conduct a hearing to determine the fairness of the agreement, consent findings, and proposed decision and order.
The Special Counsel, or any other interested person or private organization, other than an officer of the Department of Homeland Security, may petition to intervene as a party in unfair immigration-related employment cases. The Administrative Law Judge, in his or her discretion, may grant or deny such a petition.
When two or more hearings are to be held, and the same or substantially similar evidence is relevant and material to the matters at issue at each such hearing, the Administrative Law Judge assigned may, upon motion by any party, or on his or her own motion, order that a consolidated hearing be conducted. Where consolidated hearings are held, a single record of the proceedings may be made and the evidence introduced in one matter may be considered as introduced in the others, and a separate or joint decision shall be made at the discretion of the Administrative Law Judge.
A brief of an amicus curiae may be filed by leave of the Administrative Law Judge upon motion or petition of the amicus curiae. The amicus curiae shall not participate in any way in the conduct of the hearing, including the presentation of evidence and the examination of witnesses.
(a) General. The parties shall not file requests for discovery, answers, or responses thereto with the Administrative Law Judge. The Administrative Law Judge may, however, upon motion of a party or on his or her own initiative, order that such requests for discovery, answers, or responses thereto be filed. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things, or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admissions. The frequency or extent of these methods may be limited by the Administrative Law Judge upon his or her own initiative or pursuant to a motion under paragraph (c) of this section.
(b) Scope of discovery. Unless otherwise limited by order of the Administrative Law Judge in accordance with the rules in this part, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter.
(c) Protective orders. Upon motion by a party or the person from whom discovery is sought, and for good cause shown, the Administrative Law Judge may make any order that justice requires to protect a party or person from annoyance, harassment, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) The discovery not be had;
(2) The discovery may be had only on specified terms and conditions, including a designation of the time, amount, duration, or place;
(3) The discovery may be had only by a method of discovery other than that selected by the party seeking discovery; or
(4) Certain matters not relevant may not be inquired into, or that the scope of discovery be limited to certain matters.
(d) Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his or her response to include information thereafter acquired, except as follows:
(1) A party is under a duty to supplement timely his or her response with respect to any question directly addressed to:
(i) The identity and location of persons having knowledge of discoverable matters; and
(ii) The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which he or she is expected to testify, and the substance of his or her testimony.
(2) A party is under a duty to amend timely a prior response if he or she later obtains information upon the basis of which:
(i) He or she knows the response was incorrect when made; or
(ii) He or she knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the Administrative Law Judge upon motion of a party or agreement of the parties.
(a) Any party may serve upon any other party written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association or governmental agency, by any authorized officer or agent, who shall furnish such information as is available to the party. A copy of the interrogatories shall be served on all parties to the proceeding.
(b) Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless it is objected to, in which event the reasons of objection shall be stated in lieu of an answer. The answers and objections shall be signed by the person making them. The party upon whom the interrogatories were served shall serve a copy of the answer or objections upon all parties to the proceeding within thirty (30) days after service of the interrogatories, or within such shorter or longer period as the Administrative Law Judge upon motion may allow.
(c) An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the Administrative Law Judge may upon motion order that such an interrogatory need not be answered until after designated discovery has been completed or until a prehearing conference or other later time.
(d) A person or entity upon whom interrogatories are served may respond by the submission of business records, indicating to which interrogatory the documents respond, if they are sufficient to answer said interrogatories.
(a) Any party may serve on any other party a request to:
(1) Produce and permit the party making the request, or a person acting on his/her behalf, to inspect and copy any designated documents or things or to inspect land, in the possession, custody, or control of the party upon whom the request is served; and
(2) Permit the party making the request, or a person acting on his/her behalf, to enter the premises of the party upon whom the request is served to accomplish the purposes stated in paragraph (1) of this section.
(b) The request may be served on any party without leave of the Administrative Law Judge.
(c) The request shall:
(1) Set forth the items to be inspected either by individual item or by category;
(2) Describe each item or category with reasonable particularity; and
(3) Specify a reasonable time, place, and manner of making the inspection and performing the related acts.
(d) The party upon whom the request is served shall serve on the party submitting the request a written response within thirty (30) days after service of the request.
(e) The response shall state, with respect to each item or category:
(1) That inspection and related activities will be permitted as requested; or
(2) That objection is made in whole or in part, in which case the reasons for objection shall be stated.
(f) A copy of each request for production and each written response shall be served on all parties.
(a) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the genuineness and authenticity of any relevant document described in or attached to the request, or for the admission of the truth of any specified relevant matter of fact.
(b) Each matter of which an admission is requested is admitted unless, within thirty (30) days after service of the request or such shorter or longer time as the Administrative Law Judge may allow, the party to whom the request is directed serves on the requesting party:
(1) A written statement denying specifically the relevant matters of which an admission is requested;
(2) A written statement setting forth in detail the reasons why he/she can neither truthfully admit nor deny them; or
(3) Written objections on the ground that some or all of the matters involved are privileged or irrelevant or that the request is otherwise improper in whole or in part.
(c) An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that he/she has made reasonable inquiry and that the information known or readily obtainable by him/her is insufficient to enable the party to admit or deny.
(d) Any matter admitted under this section is conclusively established unless the Administrative Law Judge upon motion permits withdrawal or amendment of the admission.
(e) A copy of each request for admission and each written response shall be served on all parties.
(a) Notice. Any party desiring to take the deposition of a witness shall give notice in writing to the witness and other parties of the time and place of the deposition, and the name and address of each witness. If documents are requested, the notice shall include a written request for the production of documents. Not less than ten (10) days written notice shall be given when the deposition is to be taken within the continental United States, and not less then twenty (20) days written notice shall be given when the deposition is to be taken elsewhere, unless otherwise permitted by the Administrative Law Judge or agreed to by the parties.
(b) When, how, and by whom taken. The following procedures shall apply to depositions:
(1) Depositions may be taken by oral examination or upon written interrogatories before any person having power to administer oaths. The party taking a deposition upon oral examination shall state in the notice the method by which the testimony shall be recorded. Unless the Administrative Law Judge orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by non-stenographic means.
(2) Each witness testifying upon deposition shall testify under oath and any other party shall have the right to cross-examine. The questions asked and the answers thereto, together with all objections made, shall be recorded as provided by paragraph (b)(1) of this section. The person administering the oath shall certify in writing that the transcript or recording is a true record of the testimony given by the witness. The witness shall review the transcript or recording within thirty (30) days of notification that it is available and subscribe in writing to the deposition, indicating in writing any changes in form or substance, unless such review is waived by the witness and the parties by stipulation.
(c) Motion to terminate or limit examination. During the taking of a deposition, a party or deponent may request suspension of the deposition on grounds of bad faith in the conduct of the examination, oppression of a deponent or party, or improper questions asked. The deposition will then be adjourned. However, the objecting party or deponent must immediately move the Administrative Law Judge for a ruling on his or her objections to the deposition conduct or proceedings.
(a) If a deponent fails to answer a question asked, or a party upon whom a discovery request is made pursuant to §§ 68.18 through 68.22 fails to respond adequately or objects to the request or to any part thereof, or fails to permit inspection as requested, the discovering party may move the Administrative Law Judge for an order compelling a response or inspection in accordance with the request. A party who has taken a deposition or has requested admissions or has served interrogatories may move to determine the sufficiency of the answers or objections thereto. Unless the objecting party sustains his or her burden of showing that the objection is justified, the Administrative Law Judge may order that an answer be served. If the Administrative Law Judge determines that an answer does not comply with the requirements of the rules in this part, he or she may order either that the matter is admitted or that an amended answer be served.
(b) The motion shall set forth and include:
(1) The nature of the questions or request;
(2) The response or objections of the party upon whom the request was served;
(3) Arguments in support of the motion; and
(4) A certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure information or material without action by the Administrative Law Judge.
(c) If a party, an officer or an agent of a party, or a witness, fails to comply with an order, including, but not limited to, an order for the taking of a deposition, the production of documents, the answering of interrogatories, a response to a request for admissions, or any other order of the Administrative Law Judge, the Administrative Law Judge may, for the purposes of permitting resolution of the relevant issues and disposition of the proceeding and to avoid unnecessary delay, take the following actions:
(1) Infer and conclude that the admission, testimony, documents, or other evidence would have been adverse to the non-complying party;
(2) Rule that for the purposes of the proceeding the matter or matters concerning which the order was issued be taken as established adversely to the non-complying party;
(3) Rule that the non-complying party may not introduce into evidence or otherwise rely upon testimony by such party, officer, or agent, or the documents or other evidence, in support of or in opposition to any claim or defense;
(4) Rule that the non-complying party may not be heard to object to introduction and use of secondary evidence to show what the withheld admission, testimony, documents, or other evidence would have shown;
(5) Rule that a pleading, or part of a pleading, or a motion or other submission by the non-complying party, concerning which the order was issued, be stricken, or that a decision of the proceeding be rendered against the non-complying party, or both;
(6) In the case of failure to comply with a subpoena, the Administrative Law Judge may also take the action provided in § 68.25(e); and
(7) In ruling on a motion made pursuant to this section, the Administrative Law Judge may make and enter a protective order such as he or she is authorized to enter on a motion made pursuant to § 68.42.
(d) Evasive or incomplete response. For the purposes of this section, an evasive or incomplete response to discovery may be treated as a failure to respond.
(a) Generally. At the hearing, any part or all of a deposition, so far as admissible, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness;
(2) The deposition of an expert witness may be used by any party for any purpose, unless the Administrative Law Judge rules that such use would be unfair or a violation of due process;
(3) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or duly authorized agent of a public or private corporation, partnership, or association which is a party, may be used by any other party for any purpose;
(4) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the Administrative Law Judge finds:
(i) That the witness is dead;
(ii) That the witness is out of the United States or more than 100 miles from the place of hearing unless it appears that the absence of the witness was procured by the party offering the deposition;
(iii) That the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment;
(iv) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(v) Upon application and notice, that such exceptional circumstances exist to make it desirable, in the interest of justice, and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used;
(5) If only part of a deposition is offered in evidence by a party, any other party may require him or her to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts; and
(6) Substitution of parties does not affect the right to use depositions previously taken; and, when a proceeding in any hearing has been dismissed and another proceeding involving the parties or their representatives or successors in interest has been brought (or commenced), all depositions lawfully taken and duly filed in the former proceeding may be used in the latter if originally taken therefor.
(7) A party offering deposition testimony may offer it in stenographic or nonstenographic form, but if in nonstenographic form, the party shall also be responsible for providing a transcript of the portions so offered.
(b) Objections to admissibility. Except as provided in this paragraph, objections may be made at the hearing to receiving in evidence any deposition or part thereof for any reason that would require the exclusion of the evidence if the witness were then present and testifying.
(1) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one that might have been obviated or removed if presented at that time.
(2) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.
(a) An Administrative Law Judge, upon his or her own initiative or upon request of an individual or entity before a complaint is filed or by a party once a complaint has been filed, may issue subpoenas as authorized by statute, either prior to or subsequent to the filing of a complaint. Such subpoena may require attendance and testimony of witnesses and production of things including, but not limited to, papers, books, documents, records, correspondence, or tangible things in their possession and under their control and access to such things for the purposes of examination and copying. A subpoena may be served by overnight courier service or overnight mail, certified mail, or by any person who is not less than 18 years of age. A witness, other than a witness subpoenaed on behalf of the Federal Government, may not be required to attend a deposition or hearing unless the mileage and witness fee applicable to witnesses in courts of the United States for each date of attendance is paid in advance of the date of the proceeding. Mileage and witness fees need not be paid to a witness at the time of service of the subpoena if the witness is subpoenaed by the Federal Government.
(b) The subpoena shall identify the person or things subpoenaed, the person to whom it is returnable and the place, date, and time at which it is returnable; or the subpoena shall identify the nature of the evidence to be examined and copied, and the date and time when access is requested. Where a non-party is subpoenaed, the requestor of the subpoena must give notice to all parties, or if no complaint has been filed, then notice shall be given to individuals or entities who have been charged with an unfair immigration-related employment practice under section 274B of the INA, the individual initiating the alleged unfair immigration-related employment practice, and the Office of Special Counsel. For purposes of this subsection, the receipt of the subpoena or a copy of the subpoena shall serve as the notice.
(c) Any person served with a subpoena issued by an Administrative Law Judge who intends not to comply with it shall, within ten (10) days after the date of service of the subpoena upon such person or within such other time the Administrative Law Judge deems appropriate, petition the Administrative Law Judge to revoke or modify the subpoena. A copy of the petition shall be served on all parties. If a complaint has not been filed in the matter, a copy of the petition shall be served on the individual or entity that requested the subpoena. The petition shall separately identify each portion of the subpoena with which the petitioner does not intend to comply and shall state, with respect to each such portion, the grounds upon which the petitioner relies. A copy of the subpoena shall be attached to the petition. Within eight (8) days after receipt of the petition, the individual or entity that applied for the subpoena may respond to such petition, and the Administrative Law Judge shall then make a final determination upon the petition. The Administrative Law Judge shall cause a copy of the final determination of the petition to be served upon all parties, or, if a complaint has not been filed, upon the individuals or entities requesting and responding to the subpoena.
(d) A party shall have standing to challenge a subpoena issued to a non-party if the party can claim a personal right or privilege in the discovery sought.
(e) Failure to comply. Upon the failure of any person to comply with an order to testify or a subpoena issued under this section, the Administrative Law Judge may, where authorized by law, apply through appropriate counsel to the appropriate district court of the United States for an order requiring compliance with the order or subpoena.
Hearings shall be held before an Administrative Law Judge appointed under 5 U.S.C. 3105 and assigned to the Department of Justice. The presiding judge in any case shall be initially designated by the Chief Administrative Hearing Officer. The Chief Administrative Law Judge may reassign a case previously assigned to an Administrative Law Judge to promote administrative efficiency. In unfair-immigration-related employment practice cases, only Administrative Law Judges specially designated by the Attorney General as having special training respecting employment discrimination may be chosen by the Chief Administrative Hearing Officer or Chief Administrative Law Judge to preside.
(a) When granted. Continuances shall only be granted in cases where the requester has a prior judicial commitment or can demonstrate undue hardship, or a showing of other good cause.
(b) Time limit for requesting. Except for good cause arising thereafter, requests for continuances must be filed not later than fourteen (14) days prior to the date of the scheduled proceeding.
(c) How filed. Motions for continuances shall be in writing, unless made during the prehearing conference or the hearing. Copies shall be served on all parties. Any motions for continuances filed fewer than fourteen (14) days before the date of the scheduled proceeding shall, in addition to the written request, be telephonically communicated to the Administrative Law Judge or a member of the Judge's staff and to all other parties.
(d) Ruling. Time permitting, the Administrative Law Judge shall enter a written order in advance of the scheduled proceeding date that either grants or denies the request. Otherwise, the ruling shall be made orally by telephonic communication to the party requesting the continuance, who shall be responsible for telephonically notifying all other parties. Oral orders shall be confirmed in writing by the Administrative Law Judge.
(a) General powers. In any proceeding under this part, the Administrative Law Judge shall have all appropriate powers necessary to conduct fair and impartial hearings, including, but not limited to, the following:
(1) Conduct formal hearings in accordance with the provisions of the Administrative Procedure Act and of this part;
(2) Administer oaths and examine witnesses;
(3) Compel the production of documents and appearance of witnesses in control of the parties;
(4) Compel the appearance of witnesses by the issuance of subpoenas as authorized by law;
(5) Issue decisions and orders;
(6) Take any action authorized by the Administrative Procedure Act;
(7) Exercise, for the purpose of the hearing and in regulating the conduct of the proceeding, such powers vested in the Attorney General as are necessary and appropriate therefore; and
(8) Take other appropriate measures necessary to enable him or her to discharge the duties of the office.
(b) Enforcement. If any person in proceedings before an Administrative Law Judge disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the Administrative Law Judge responsible for the adjudication may, where authorized by statute or law, apply through appropriate counsel to the Federal District Court having jurisdiction in the place in which he/she is sitting to request appropriate remedies.
In the event the Administrative Law Judge designated to conduct the hearing becomes unavailable, the Chief Administrative Law Judge, may designate another Administrative Law Judge for the purpose of further hearing or other appropriate action.
(a) When an Administrative Law Judge deems himself or herself disqualified to preside in a particular proceeding, such judge shall withdraw therefrom by notice on the record directed to the Chief Administrative Law Judge.
(b) Whenever any party shall deem the Administrative Law Judge for any reason to be disqualified to preside, or to continue to preside, in a particular proceeding, that party shall file with the Administrative Law Judge a motion to recuse. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The Administrative Law Judge shall rule upon the motion.
(c) In the event of disqualification or recusal of an Administrative Law Judge as provided in paragraph (a) or (b) of this section, the Chief Administrative Law Judge shall refer the matter to another Administrative Law Judge for further proceedings.
(d) In the event of disqualification or recusal of the Chief Administrative Law Judge as provided in this section, the Chief Administrative Hearing Officer shall refer the matter to another Administrative Law Judge for further proceedings.
(e) The disqualification procedures in this section apply to reviews by the Chief Administrative Hearing Officer conducted under § 68.53 or § 68.54. In the event of disqualification or recusal of the Chief Administrative Hearing Officer as provided in this section, the review shall be referred to the Director for further proceedings. For a case referred to the Director under this paragraph (e), the Director shall exercise delegated authority from the Attorney General identical to that of the Chief Administrative Hearing Officer as described in § 68.53 or 68.54.
No officer, employee, or agent of the Federal Government engaged in the performance of investigative or prosecutorial functions in connection with any proceeding shall, in that proceeding or a factually related proceeding, participate or advise in the decision of the Administrative Law Judge, except as a witness or counsel in the proceedings.
Hearings shall proceed with all reasonable speed, insofar as practicable and with due regard to the convenience of the parties.
(a) Participation of parties. Any party shall have the right to appear in a proceeding and may examine and cross-examine witnesses and introduce into the record documentary or other relevant evidence, except that the participation of any intervenor shall be limited to the extent prescribed by the Administrative Law Judge.
(b) Person compelled to testify. Any person compelled to testify in a proceeding in response to a subpoena may be accompanied, represented, and advised by an individual meeting the requirements of paragraph (c) of this section.
(c) Representation for parties other than the Department of Justice. Persons who may appear before the Administrative Law Judges on behalf of parties other than the Department of Justice include:
(1) An attorney at law who is admitted to practice before the federal courts or before the highest court of any state, the District of Columbia, or any territory or commonwealth of the United States, may practice before the Administrative Law Judges. An attorney's own representation that the attorney is in good standing before any of such courts shall be sufficient proof thereof, unless otherwise ordered by the Administrative Law Judge.
(2) A law student, enrolled in an accredited law school, may practice before an Administrative Law Judge. The law student must seek advance approval by filing a statement with the Administrative Law Judge proving current participation in a legal assistance program or clinic conducted by the law school. Practice before the Administrative Law Judge shall be under direct supervision of a faculty member or an attorney. An appearance by a law student shall be without direct or indirect remuneration. The Administrative Law Judge may determine the amount of supervision required of the supervising faculty member or attorney.
(3) An individual who is neither an attorney nor a law student may be allowed to provide representation to a party upon a written order from the Administrative Law Judge assigned to the case granting approval of the representation. The individual must file a written application with the Administrative Law Judge demonstrating that the individual possesses the knowledge of administrative procedures, technical expertise, or other qualifications necessary to render valuable service in the proceedings and is otherwise competent to advise and assist in the presentation of matters in the proceedings.
(i) Application. A written application by an individual who is neither an attorney nor a law student for admission to represent a party in proceedings shall be submitted to the Administrative Law Judge within ten (10) days from the receipt of the Notice of Hearing and complaint by the party on whose behalf the individual wishes to file the application. This period of time for filing the application may be extended upon approval of the Administrative Law Judge. The application shall set forth in detail the requesting individual's qualifications to represent the party.
(ii) Inquiry on qualifications or ability. The Administrative Law Judge may, at any time, inquire as to the qualifications or ability of any non-attorney to render assistance in proceedings before the Administrative Law Judge.
(iii) Denial of authority to appear. Except as provided in paragraph (c)(3)(iv) of this section, the Administrative Law Judge may enter an order denying the privilege of appearing to any individual who the Judge finds does not possess the requisite qualifications to represent others; is lacking in character or integrity; has engaged in unethical or improper professional conduct; or has engaged in an act involving moral turpitude.
(iv) Exception. Any individual may represent him or herself or any corporation, partnership or unincorporated association of which that individual is a partner or general officer in proceedings before the Administrative Law Judge without prior approval of the Administrative Law Judge and without filing the written application required by this paragraph. Such individuals must, however, file a notice of appearance in the manner set forth in paragraph (f) of this section.
(d) Representation for the Department of Justice. The Department of Justice may be represented by the appropriate counsel in these proceedings.
(e) Proof of authority. Any individual acting in a representative capacity in any adjudicative proceeding may be required by the Administrative Law Judge to show his or her authority to act in such capacity. Representation of a respondent shall be at no expense to the Government.
(f) Notice of appearance. Except for a government attorney filing a complaint pursuant to section 274A, 274B, or 274C of the INA, each attorney shall file a notice of appearance. Such notice shall indicate the name of the case or controversy, the case number if assigned, and the party on whose behalf the appearance is made. The notice of appearance shall be signed by the attorney, and shall be accompanied by a certification indicating that such notice was served on all parties of record. A request for a hearing signed by an attorney and filed with the Department of Homeland Security pursuant to section 274A(e)(3)(A) or 274C(d)(2)(A) of the INA, and containing the same information as required by this section, shall be considered a notice of appearance on behalf of the respondent for whom the request was made.
(g) Withdrawal or substitution of a representative. Withdrawal or substitution of an attorney or representative may be permitted by the Administrative Law Judge upon written motion. The Administrative Law Judge shall enter an order granting or denying such motion for withdrawal or substitution.
The Office of the Chief Administrative Hearing Officer does not have authority to appoint counsel.
(a) All persons appearing in proceedings before an Administrative Law Judge are expected to act with integrity, and in an ethical manner.
(b) The Administrative Law Judge may exclude from proceedings parties, witnesses, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications. The Administrative Law Judge shall state in the record the cause for barring an attorney or other individual from participation in a particular proceeding. The Administrative Law Judge may suspend the proceeding for a reasonable time for the purpose of enabling a party to obtain another attorney or representative.
(a) General. Except for other employees of the Executive Office for Immigration Review, the Administrative Law Judge shall not consult any person, or party, on any fact in issue unless upon notice and opportunity for all parties to participate. Communications by the Office of the Chief Administrative Hearing Officer, the assigned judge, or any party for the sole purpose of scheduling hearings, or requesting extensions of time are not considered ex parte communications, except that all other parties shall be notified of such request by the requesting party and be given an opportunity to respond thereto.
(b) Sanctions. A party or participant who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to any appropriate sanction or sanctions, including but not limited to, exclusion from the proceedings and adverse ruling on the issue which is the subject of the prohibited communication.
(a) Waiver of right to appear. If all parties waive in writing their right to appear before the Administrative Law Judge or to present evidence or argument personally or by representative, it shall not be necessary to give notice of and conduct an oral hearing. A waiver of the right to appear and present evidence and allegations as to facts and law shall be made in writing and filed with the Chief Administrative Hearing Officer or the Administrative Law Judge. Where such a waiver has been filed by all parties and they do not appear before the Administrative Law Judge personally or by representative, the Administrative Law Judge shall make a record of the relevant written evidence submitted by the parties, together with any pleadings they may submit with respect to the issues in the case. Such documents shall be considered as all of the evidence in the case and decision shall be based on them.
(b) Dismissal—Abandonment by party. A complaint or a request for hearing may be dismissed upon its abandonment by the party or parties who filed it. A party shall be deemed to have abandoned a complaint or a request for hearing if:
(1) A party or his or her representative fails to respond to orders issued by the Administrative Law Judge; or
(2) Neither the party nor his or her representative appears at the time and place fixed for the hearing and either
(i) Prior to the time for hearing, such party does not show good cause as to why neither he or she nor his or her representative can appear; or
(ii) Within ten (10) days after the time for hearing or within such other period as the Administrative Law Judge may allow, such party does not show good cause for such failure to appear.
(c) Default—Failure to appear. A default decision, under § 68.9(b), may be entered, with prejudice, against any party failing, without good cause, to appear at a hearing.
(a) A complainant, not fewer than thirty (30) days after receipt by respondent of the complaint, may move with or without supporting affidavits for summary decision on all or any part of the complaint. Motions by any party for summary decision on all or any part of the complaint will not be entertained within the twenty (20) days prior to any hearing, unless the Administrative Law Judge decides otherwise. Any other party, within ten (10) days after service of a motion for summary decision, may respond to the motion by serving supporting or opposing papers with affidavits, if appropriate, or countermove for summary decision. The Administrative Law Judge may set the matter for argument and/or call for submission of briefs.
(b) Any affidavits submitted with the motion shall set forth such facts as would be admissible in evidence in a proceeding subject to 5 U.S.C. 556 and 557 and shall show affirmatively that the affiant is competent to testify to the matters stated therein. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of such pleading. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing.
(c) The Administrative Law Judge shall enter a summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision.
(d) Form of summary decisions. Any final order entered as a summary decision shall conform to the requirements for all final orders. A final order made under this section shall include a statement of:
(1) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and
(2) Any terms and conditions of the final order.
(e) Hearings on issue of fact. Where a genuine question of material fact is raised, the Administrative Law Judge shall set the case for an evidentiary hearing.
(a) Public. Hearings shall be open to the public. The Administrative Law Judge may order a hearing or any part thereof closed, where to do so would be in the best interests of the parties, a witness, the public, or other affected persons. Any order closing the hearing shall set forth the reasons for the decision. Any objections thereto shall be made a part of the record.
(b) Jurisdiction. The Administrative Law Judge shall have jurisdiction to decide all issues of fact and related issues of law.
(c) Rights of parties. Every party shall have the right of timely notice and all other rights essential to a fair hearing, including, but not limited to, the right to present evidence, to conduct such cross-examination as may be necessary for a full and complete disclosure of the facts, and to be heard by objection, motion, and argument.
(d) Rights of participation. Every party shall have the right to make a written or oral statement of position. At the discretion of the Administrative Law Judge, participants may file proposed findings of fact, conclusions of law, and a post hearing brief.
(e) Amendments to conform to the evidence. When issues not raised by the request for hearing, prehearing stipulation, or prehearing order are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence may be made on motion of any party at any time; but failure to so amend does not affect the result of the hearing of these issues. The Administrative Law Judge may grant a continuance to enable the objecting party to meet such evidence.
(a) Applicability of Federal rules of evidence. Unless otherwise provided by statute or these rules, the Federal Rules of Evidence will be a general guide to all proceedings held pursuant to these rules.
(b) Admissibility. All relevant material and reliable evidence is admissible, but may be excluded if its probative value is substantially outweighed by unfair prejudice or confusion of the issues, or by considerations of undue delay, waste of time, immateriality, or needless presentation of cumulative evidence. Stipulations of fact may be introduced in evidence with respect to any issue. Every party shall have the right to present his/her case or defense by oral or documentary evidence, depositions, and duly authenticated copies of records and documents; to submit rebuttal evidence; and to conduct such reasonable cross-examination as may be required for a full and true disclosure of the facts. The Administrative Law Judge shall have the right in his/her discretion to limit the number of witnesses whose testimony may be merely cumulative and shall, as a matter of policy, not only exclude irrelevant, immaterial, or unduly repetitious evidence but shall also limit the cross-examination of witnesses to reasonable bounds so as not to prolong the hearing unnecessarily, and unduly burden the record. Material and relevant evidence shall not be excluded because it is not the best evidence, unless its authenticity is challenged, in which case reasonable time shall be given to establish its authenticity. When only portions of a document are to be relied upon, the offering party shall prepare the pertinent excerpts, adequately identified, and shall supply copies of such excerpts, together with a statement indicating the purpose for which such materials will be offered, to the Administrative Law Judge and to the other parties. Only the excerpts, so prepared and submitted, shall be received in the record. However, the original document should be made available for examination and for use by opposing counsel for purposes of cross-examination. Compilations, charts, summaries of data, and photostatic copies of documents may be admitted in evidence if the proceedings will thereby be expedited, and if the material upon which they are based is available for examination by the parties.
(c) Objections to evidence. Objections to the admission or exclusion of evidence shall be in short form, stating the grounds of objections relied upon, and to the extent permitted by the Administrative Law Judge, the transcript shall include argument or debate thereon. Rulings on such objections shall be made at the time of objection or prior to the receipt of further evidence. Such ruling shall be a part of the record.
(d) Exceptions. Formal exceptions to the rulings of the Administrative Law Judge made during the course of the hearing are unnecessary. For all purposes for which an exception otherwise would be taken, it is sufficient that a party, at the time the ruling of the Administrative Law Judge is made or sought, makes known the action he/she desires the Administrative Law Judge to take or his/her objection to an action taken, and his/her grounds therefor.
(e) Offers of proof. Any offer of proof made in connection with an objection taken to any ruling of the Administrative Law Judge rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony, and, if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall constitute the offer of proof.
Official notice may be taken of any material fact, not appearing in evidence in the record, which is among the traditional matters of judicial notice. Provided, however, that the parties shall be given adequate notice, at the hearing or by reference in the Administrative Law Judge's decision, of the matters so noticed, and shall be given adequate opportunity to show the contrary.
(a) Privileged communications. Upon application of any person, the Administrative Law Judge may limit discovery or introduction of evidence or enter such protective or other orders as in the Judge's judgment may be consistent with the objective of protecting privileged communications and of protecting data and other material the disclosure of which would unreasonably prejudice a party, witness, or third party.
(b) Classified or sensitive matter. (1) Without limiting the discretion of the Administrative Law Judge to give effect to any other applicable privilege, it shall be proper for the Administrative Law Judge to limit discovery or introduction of evidence or to enter such protective or other orders as in the Judge's judgment may be consistent with the objective of preventing undue disclosure of classified or sensitive matter. When the Administrative Law Judge determines that information in documents containing sensitive matter should be made available the Judge may direct the producing party to prepare an unclassified or nonsensitive summary or extract of the original. The summary or extract may be admitted as evidence in the record.
(2) If the Administrative Law Judge determines that this procedure is inadequate and that classified or otherwise sensitive matter must form part of the record in order to avoid prejudice to any party, the Judge may so advise the parties and provide an opportunity for arrangements to permit a party or a representative to have access to such matter. Such arrangements may include obtaining security clearances or giving counsel for a party access to sensitive information and documents subject to assurances against further disclosure.
(a) Identification. All exhibits offered in evidence shall be numbered and marked with a designation identifying the party or intervenor by whom the exhibit is offered.
(b) Exchange of exhibits. When written exhibits are offered in evidence, one copy must be furnished to each of the parties at the hearing, and two copies to the Administrative Law Judge, unless the parties previously have been furnished with copies or the Administrative Law Judge directs otherwise. If the Administrative Law Judge has not fixed a time for the exchange of exhibits, the parties shall exchange copies of exhibits at the earliest practicable time, preferably before the hearing or, at the latest, at the commencement of the hearing.
(c) Substitution of copies for original exhibits. The Administrative Law Judge may permit a party to withdraw original documents offered in evidence and substitute true copies in lieu thereof.
In case any portion of the record in any other proceeding or civil or criminal action is offered in evidence, a true copy of such portion shall be presented for the record in the form of an exhibit unless the Administrative Law Judge directs otherwise.
Where relevant and material matter offered in evidence is embraced in a document containing other matter not material or relevant and not intended to be put in evidence, the participant offering the same shall plainly designate the matter so offered, segregating and excluding insofar as practicable the immaterial or irrelevant parts. If other matter in such document is in such bulk or extent as would necessarily encumber the record, such document will not be received in evidence, but may be marked for identification, and if properly authenticated, the relevant and material parts thereof may be read into the record, or if the Administrative Law Judge so directs, a true copy of such matter in proper form shall be received in evidence as an exhibit, and copies shall be delivered by the participant offering the same to the other parties or their attorneys appearing at the hearing, who shall be afforded an opportunity to examine the entire document and to offer in evidence in like manner other material and relevant portions thereof.
The authenticity of all documents submitted as proposed exhibits in advance of the hearing shall be deemed admitted unless written objection therto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection.
The parties may by stipulation in writing at any stage of the proceeding, or by stipulation made orally at the hearing, agree upon any pertinent facts in the processing. It is desirable that the facts be thus agreed upon so far as and whenever practicable. Stipulations may be received in evidence at a hearing or prior thereto, and when received in evidence, shall be binding on the parties thereto.
(a) General. A verbatim written record of all hearings shall be kept, except in cases where the proceedings are terminated in accordance with § 68.14. All evidence upon which the Administrative Law Judge relies for decision shall be contained in the transcript of testimony, either directly or by appropriate reference. All exhibits introduced as evidence shall be marked for identification and incorporated into the record. Transcripts may be obtained by the parties and the public from the official court reporter of record. Any fees in connection therewith shall be the responsibility of the parties.
(b) Corrections. Corrections to the official transcript will be permitted upon motion. Motions for correction must be submitted within ten (10) days of the receipt of the transcript by the Administrative Law Judge or such other time as may be permitted by the Administrative Law Judge. Corrections of the official transcript will be permitted only when errors of substance are involved and only upon approval of the Administrative Law Judge.
(a) When there is a hearing, the record shall be closed at the conclusion of the hearing unless the Administrative Law Judge directs otherwise.
(b) If any party waives a hearing, the record shall be closed on the date set by the Administrative Law Judge as the final date for the receipt of submissions of the parties to the matter.
(c) Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record. However, the Administrative Law Judge shall make part of the record any motions for attorney's fees authorized by statutes, and any supporting documentation, any determinations thereon, and any approved correction to the transcript.
Documents submitted for the record after the close of the hearing will not be received in evidence except upon ruling of the Administrative Law Judge. Such documents when submitted shall be accompanied by proof that copies have been served upon all parties, who shall have an opportunity to comment thereon. Copies shall be received not later than twenty (20) days after the close of the hearing except for good cause shown, and not less than ten (10) days prior to the date set for filing briefs. Exhibit numbers should be assigned by counsel or the party.
Cite this law
RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD (U.S.C.). Retrieved via LawPlayer, https://lawplayer.com/us/act/cfr-title-28-part-68
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