Practice Before the Board of Immigration Appeals April 30, 2013 Panelists • Karen Grisez, Public Service Counsel, Fried, Frank, Harris, Shriver & Jacobson LLP. • David Neal, Chairman, Board of Immigration Appeals • Charles Adkins-Blanch, Vice-Chairman, Board of Immigration Appeals • Lauren Sullivan, Advocacy Attorney, Catholic Legal Immigration Network, Inc. (CLINIC) What is the Board of Immigration Appeals (BIA)? 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 What to Do Before the Immigration Judge: • Make and preserve your Record • Memorialize off-the-record agreements, restrictions, rulings • Give a solid Closing Argument • Take near-verbatim notes of Oral Decisions • Do not waive appeal unless decision fully favorable Starting points: 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, Transcript and Briefing Schedule • What if you need the Record of Proceeding? Briefing schedules: Detained vs. non-detained Detained cases • Simultaneous 21-day briefing schedule • Response briefs accepted, up to 14 days before briefing deadline. • 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 (then follow rules for response briefs---not usually permitted) • Will accept additional response brief only if complies with rules. • Motion to accept reply brief • Premised on/asserts surprise • 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 it: • 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 fact-finding under the proper legal standard Getting Three Member Panel Review •Single Judge Review permitted unless appeal qualifies for 3-member review under 8 C.F.R. §1003.1(e)(6) •Six bases for 3 member review: • The need to settle inconsistencies among the rulings of different immigration judges; • The need to establish a precedent construing the meaning of laws, regulations, or procedures; • The need to review a decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents; • The need to resolve a case or controversy of major national import; • The need to review a clearly erroneous factual determination by an immigration judge; or • The need to reverse the decision of an immigration judge or the Service, other than a reversal under Section 1003.1(e)(5). •Include near front of brief •Remember to argue against 3 Member Review if you won in Immigration Court Standards of review • Appeals from CIS = de novo • Questions of law (including discretion) = de novo • IJ findings of fact (including credibility determinations) = clearly erroneous standard • Mixed questions of law and fact = de novo Note: BIA will NOT engage in fact-finding during appeal except to take administrative notice of current events or official documents Get Familiar with the Practice Manual and Virtual Law Library Practice Manual: • Tells you what the Board prefers to see • Read cover to cover ‐‐ don’t miss Chapter 3 on filing • Read appendices Virtual Law Library: • Published BIA and Attorney General precedents • Federal Register tables • Country conditions information from U.S. Government and other sources • State Department Visa Bulletin Identify Issues Up Front • Explain what went wrong below • Cite statutes/regulations/case law supporting your arguments • Make your case on the Notice of Appeal Present Arguments, Not Just Citations • Recitation of facts and basic law okay, but … • Use headings and format to focus the Board • Make arguments specific – apply the law to the facts of your case Use Logic, Not Rhetoric • Passion vs. persuasion • Logic chain (A then B then C) • What’s broken? How do we fix it? Don’t Ignore a Judge’s Adverse Credibility Finding • Credibility = finding of fact • Findings of fact must be “clearly erroneous” • Gateway to other issues on appeal Pay Attention to Circuit Court Law • Board defers to law of the circuit where case arises • Differences arise: asylum and criminal conviction issues • Learn your circuit’s law and cite to it Read the Asylum / Withholding / CAT Regulations at 8 CFR 1208.1‐ 1208.24 • Blueprint for analysis of asylum cases • Codified much of asylum case law ‐‐ but added some twists Be Candid, Not Cagey • Acknowledge and confront weaknesses in your case • If case law is not on your side, argue how to distinguish it Write Professionally • Professional = persuasive • Decorum in presentation ‐‐ organization, headings, cover page • Decorum in argument ‐‐ clear arguments, analysis, conclusion Be Judicious with New Evidence on Appeal • Board rarely takes evidence on appeal • Got new evidence? Why now? • Make remand request clear and specific RESOURCES BIA WEB PAGE: http://www.justice.gov/eoir/biainfo.htm BIA PRACTICE MANUAL: http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm EOIR VIRTUAL LAW LIBRARY: http://www.justice.gov/eoir/vll/libindex.html Practitioner’s 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 • 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 parties by regular mail. How to you keep track of your Board case/get updates? • EOIR hotline: (800) 898-7180 • Recorded procedural information (BIA TIPS line): (703) 605-1007 What comes next? • If you win, can DHS appeal? (No) • If you lose, can you appeal? (Often) • 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 BIA Directory http://www.justice.gov/eoir/vll/qapracmanual/prac manual/AppB.pdf Bender’s Immigration Bulletin http://www.bibdaily.com AILA http://www.aila.org Department of State Country Reports http://www.state.gov/g/drl/rls/hrrpt/2009/index.htm BIA Pro Bono Project Overview of the Project •Who is involved? •Executive Office for Immigration Review (EOIR) •Catholic Legal Immigration Network, Inc (CLINIC) •American Immigration Lawyers Association (AILA) •American Immigration Council (AIC) •National Immigration Project of the National Lawyers Guild (NIPNLG) •Capital Area Immigrants’ Rights Coalition (CAIR) •Who do we serve? •Detained •Non-detained •Pro Se before the IJ •Why do we do it? BIA Pro Bono Project: What do we do? What do we do? • Screen • Select • Distribute • Match • Represent BIA Pro Bono Project: Why Volunteer?  Screened cases  Mentorship  6 weeks for brief writing  Transcripts and Records  Resources Sign Up to Volunteer Sign up at: http://cliniclegal.org/programs/center-immigrantrights/bia-pro-bono-project/0811/bia-pro-bonoproject Questions (Use the chat box on the right of your screen to ask questions.) IAN Pro Bono Resource Center IAN Pro Bono Resource Center • National network of volunteer attorneys who represent low-income immigrants on a pro bono basis • Access to IAN content, trainings and technical assistance, as well as specialized content for pro bono attorneys • State-by-state guide to volunteer opportunities and IAN partner pro bono projects • Access to the IAN Community Forum Join Us! Join a community of over 5,000 advocates dedicated to protecting and promoting the rights of immigrants in the United States. To learn more, visit www.immigrationadvocates.org twitter.com/immadvocates facebook.com/immigrationadvocates