Prepare – Prepare – Prepare
Pre-hearing briefs are typically filed in the context of affirmative asylum applications that were or, will be filed, with the U.S. Citizenship and Immigration Services (“USCIS”) and cases pending before Immigration Judges. Having a pre-hearing brief is the optimal way to prepare for an asylum office interview or an immigration court individual hearing. This is particularly true where credibility is a key factor, i.e., affirmative applications, defensive applications for relief or challenges to the charge(s) of removability.
Preparation of a pre-hearing brief necessarily requires review of all evidence in support of the claim, including any prior statements by the applicant that might reflect inconsistencies with later statements. Pre-hearing briefs are an excellent way to get ahead of alleged inconsistencies and discrepancies in the record and to prevent an adverse credibility determination. It is also an excellent way to be prepared for impeachment evidence regarding the applicant’s credibility.
Asylum Office Pre-Hearing Briefs
- whether the application is timely filed or meets an exception to the one-year bar,
- the applicant’s credibility and any issues that may affect an applicant’s ability to testify at his or her interview such as post-traumatic stress disorder,
- past persecution suffered by the applicant or, if no past persecution, how past experiences and other evidence establishes a well-founded fear of future persecution,
- the protected ground(s) upon which the asylum claim is based and the existence of a nexus between the protected ground(s) and the persecution,
- particular social group definitions, if needed,
- whether the home government is unable or unwilling to protect the applicant
- whether the applicant can internally relocate, and
- whether the application should be granted asylum in the exercise of discretion.
The drafting process will also include development of particular social group definitions, if needed, additional research of background country condition evidence, and discussion of all corroborating evidence provided in support of the claim.
Immigration Court Pre-Hearing Briefs
- Challenging the charge(s) of removability,
- Addressing eligibility for relief, i.e., 212(c), 237(a)(1)(H), Cancellation of Removal (continuous physical presence, possible criminal bar(s) to relief, exceptional and extremely unusual hardship), Adjustment of Status (was applicant “admitted”?, is
applicant otherwise admissible or in need of a waiver or a request to reapply for admission?), or Asylum (one-year bar, particularly serious crime), or
- Setting forth a full discussion of an asylum claim as indicated above.
In Immigration Court, the need for a “pre-hearing” brief may arise at any time throughout the proceeding. For instance, you could appear for an individual hearing where DHS argues for the first time that your client is not eligible for the relief sought. It would be prudent at that point to ask the Immigration Judge for time to research and brief the issue. Thus, the need for a brief arises after a hearing, but before the final hearing on the matter, hence a “pre-hearing” brief.