Presentation 1

Report
Jurisdiction of BIA
• Appeals from most Immigration Judge decisions
on the merits
• Denials of motions to reopen
• Bond appeals
• Interlocutory appeals (i.e., change of venue
denied)
• Appeals from decisions on visa petitions (approx
4,000)
• Appeals from denials of INA § 212 waivers of
inadmissibility for nonimmigrants
• Decisions on fines and penalties
• Decisions on BIA recognition/accreditation
• Attorney Discipline matters
Most Common Appeal Types
•Asylum, withholding, CAT
• Criminal issues
• Cancellation of removal – LPR or non-LPR
• Termination of removal proceedings
•IJ denial of motions – such as motion to
reopen or motion to change venue
Preparing For Possible Appeal
PRACTICE POINTER
What to Do Before the Immigration Judge:
•Make and preserve your Record: objections,
requests for continuances, interpreter issues,
request to supplement the record
•Memorialize off-the-record agreements,
restrictions and rulings in the record
• Give a solid Closing Argument
• Take near-verbatim notes of Oral Decisions
• Do not waive appeal unless decision fully
favorable
PRACTICE POINTER – SUBPOENASLAYING FOUNDATION
•Affirmatively ask IJ to enforce subpoena
8 CFR § 1003.35(b)(6) requires the IJ to enforce
their subpoena (emphasis added):
(6) Invoking aid of court. If a witness neglects or
refuses to appear and testify as directed by the
subpoena served upon him or her in accordance
with the provisions of this section, the Immigration
Judge issuing the subpoena shall request the
United States Attorney for the district in which the
subpoena was issued to report such neglect or
refusal to the United States District Court and to
request such court to issue an order requiring the
witness to appear and testify and to produce the
books, papers or documents designated in the
subpoena.
How do you file an appeal before the BIA?
• Timing (Received at BIA within 30 days of service
of decision whether by hand or mail.
No Mailbox Rule.)
• Notice of Appeal (EOIR-26)
• Remember to Request Oral Argument
(can be waived later)
• Notice of Appearance (EOIR-27) – Required
even if you were the attorney before the IJ
• Filing Fee ($110 payable to U.S. Dept. of
Justice) Or Fee Waiver (EOIR – 26A)
• Proof of Service on all forms
•All forms available at www.justice.gov/eoir
What happens next?
• BIA issues Receipt
• File FOIA to the BIA for the full record if:
a. Case has a very large record –paginated
record is easier to work with and search
electronically; or
b. Case came from another attorney – ensures
you have the full record: every exhibit, motion,
filing, etc…
• BIA will send Transcript and IJ Decision with
Briefing Schedule.
• Exception: appealing denial of Motion to
Reopen - listen to tapes at court for MTR
appeals; FOIA; you can cite to hearing
recording (BIA Practice Manual 4.6). In
brief, make motion for tapes to be
transcribed.
Briefing schedules: Detained vs. non-detained
Detained cases
• Simultaneous 21-day briefing schedule
• Response briefs accepted – try to file within14 days
• Board will not delay adjudication to wait for response
brief.
Non-detained cases
• Filing party: 21 days
• Other party: 21 days to file response brief
•Cross appeals? Simultaneous 21-day briefing schedule
• BIA will accept additional reply brief –try to file w/in 14
days
• Extensions of Time – BIA Practice Manual 4.7(c)
• One 21 day extension readily granted
•Additional extensions RARE. Require serious medical
emergency, death or similar reason.
Avoid Affirmance Without Opinion
8 C.F.R. § 1003.1(e)(4)(ii): a decision will be affirmed
without opinion if:
•IJ decision was correct; error was harmless; issues
squarely controlled by case law/statute; or
• Factual/legal issues not “substantial” (no definition in 8
C.F.R.)
• Less of an issue than in past.
Strategies to avoid summary affirmance:
• Argue that issues not squarely controlled by existing
precedent
• Argue errors made not harmless
• Argue that issues are substantial and novel
•Or argue that remand is necessary to require further factfinding under the proper legal standard
MOTIONS IN YOUR BIA BRIEF -1
•
•
•
•
PRACTICE POINTER
OPPOSITION TO SUMMARY AFFIRMANCE
MOTION THAT DHS WILL INEVITABLY MAKE
MOTION FOR ORAL ARGUMENT
MOTION TO REMAND IF ALIEN QUALIFIES FOR
NEW RELIEF, EG USC BABY BORN AND NOW
QUALIFIES FOR CANCELLATION
MOTION TO REMAND IF CLIENT GETS TRAVEL
DOCUMENTS AND VOLUNTARY DEPARTURE
WAS DENIED DUE TO LACK OF TRAVEL DOCS.
MOTIONS IN YOUR BIA BRIEF – 2
PRACTICE POINTER
• MOTION FOR ADMINISTRATIVE CLOSURE (IS
CLIENT ELIGIBLE FOR 601A PROVISIONAL
WAIVER? CLIENT DACA ELIGIBLE OR DACA
GRANTEE?)
• MOTION TO REMAND IF I-130 IS FILED (HASHMI)
OR I-130 IS APPROVED WHILE APPEAL IS
PENDING
• MOTION TO REMAND IF PRIORITY DATE
BECOMES CURRENT.
• MOTION TO REMAND IF ALIEN QUALIFIES FOR
NEW RELIEF, EG USC BABY BORN AND NOW
QUALIFIES FOR CANCELLATION
• MOTION FOR 3-MEMBER PANEL (NEXT SLIDE)
Getting Three-Member Panel Review
• Single
Judge Review permitted unless appeal qualifies for 3member review under 8 C.F.R. §1003.1(e)(6)
• MOVE FOR PANEL REVIEW AT BEGINNING OF BRIEF
Identify ALL applicable reasons for 3 member review:
• To settle inconsistencies among the rulings of
different immigration judges;
• To establish a precedent construing the meaning of
laws, regulations, or procedures;
• To review decision by an immigration judge or the Service
that is not in conformity with the law or with applicable
precedents;
• To resolve a case or controversy of major national import;
• To review a clearly erroneous factual determination by
an immigration judge; or
• To reverse the decision of an immigration judge or the
Service, other than a reversal under Section 1003.1(e)(5).
•Remember to argue against 3 Member Review if you won in
Immigration Court
GETTING READY TO WRITE-1
PRACTICE POINTER
• OUTLINE IJ DECISION AND CITE TO IJ DECISION
PAGE NUMBERS:
– FACTS RECAP
– EACH REASON FOR FINDING ADVERSE
CREDIBILITY AND ITS BASIS IN RECORD THAT IJ
INDICATED SHE/HE RELIED ON
– EACH FINDING OF LAW/FACT AND IJ’S BASIS
• OUTLINE KEY PARTS OF TRANSCRIPT – TR. AT
?PAGE
• CROSS-REFERENCE TRANSCRIPT REFERENCES
WITH THINGS THAT IJ RELIED ON
• DID IJ FAIRLY RE-CAP TESTIMONY
• DID IJ LEAVE OUT HELPFUL CORROBORATING
TESTIMONY
GETTING READY TO WRITE-2
PRACTICE POINTER
• LOOK IN THE RECORD OF EXHIBITS FOR EXCERPTS
THAT SUPPORT YOUR POINTS OR REBUT IJ’S
FINDINGS OF LAW AND FACTS
• MAKE A LIST OF THE EXCERPTS AND CITATIONS
TO RECORD
• OUTLINE YOUR POINTS
• AFTER YOU WRITE UP POINTS, MAKE A
SUMMARY OF ARGUMENT AND PUT IT AT FRONT
OF BRIEF
• FOR BIA, YOU CAN USE LISTS IN ADDITION TO
STRAIGHT PROSE.
GETTING READY TO WRITE-2
PRACTICE POINTER
• DON’T THROW AWAY ANY ISSUES - SOMETIMES
THE BIA “HANGS THEIR HAT” ON AN ISSUE THAT
YOU MAY HAVE CONSIDERED MINOR.
• STAY ABREAST OF NEW LAW IN AND OUT OF
YOUR CIRCUIT [BENDERS IMMIGRATION DAILY IS
FREE!]. ASK FOR REMAND BASED ON NEW LAW
IF APPLICABLE. IF OUTSIDE CIRCUIT NEW LAW IS
FAVORABLE, WRITE MOTION TO REMAND AND
EXPLAIN WHY THE REASONING OF THAT OPINION
IS SOUND.
Tips for Brief Writing
Understand BIA Structure and Operations
•Staff Attorneys do first level review and a draft
decision
•Case loads are heavy – Make it easy to
understand your issues/arguments
• Highlight important quotations
• Cite to/Quote from key documents
• Append any “Silver Bullet” Transcript pages or
Exhibits
• Use the Practice Manual
• Parts of Brief in order – 4.6(c)(iv)
• Formatting Guidance and Length
Practioner’s Tips for Brief Writing
Avoid Common Pitfalls
•Choose issues wisely; relegate
minor points to footnotes
•Beware of boilerplate and model briefs
•Individualize your brief
•Allocated space should correspond to
significance of issue
Be Clear About Remedy
• Affirmance
• Outright Reversal
• Remand
Does Record Support Your Request?
BIA decisions
When are they issued?
• Generally a few months after briefing
completed, but can be up to a year or more.
• BIA tries to expedite detained cases.
• Served on client and attorney by regular mail.
How to you keep track of your Board
case/get updates?
• EOIR hotline:(800) 898-7180
• Recorded procedural information and
clerk’s office: (703) 605-1007
What comes next?
• If you win, can DHS appeal? No
• If you lose, can you appeal? Yes
•To Circuit Court, within 30 days of BIA decision
•File a Petition for Review.
•Procedure varies depending on rules of Circuit
Court.
•Note: Circuit Court does not always have
jurisdiction
• Some limitations on discretionary opinions by BIA
•No jurisdiction over aliens removable for
committing certain criminal offenses (INA §
242(a)(2)(C)), but Circuit has jurisdiction to
determine its own jurisdiction.
Additional Resources - 1
BIA Directory
http://www.justice.gov/eoir/vll/qapracmanual/
apptmtn4.htm
Bender’s Immigration Bulletin (free subscription)
http://www.bibdaily.com
AILA
http://www.aila.org
EOIR VIRTUAL LAW LIBRARY
http://www.justice.gov/eoir/vll/libindex.html
Additional Resources - 2
EOIR VIRTUAL LAW LIBRARY
http://www.justice.gov/eoir/vll/libindex.html
• BIA precedent decisions
• Country conditions research-more than
country reports!
• Federal Register
• Immigration Law Advisor – DOJ newsletterhas many interesting articles and roundup of
BIA and Federal Decisions; about 10
issues/year

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