Jurisdiction o f BIA Appeals from most Immigration - PowerPoint Presentation

Jurisdiction of BIA Appeals from most Immigration Judge decisions on the meritsDenials of motions to reopenBond appealsInterlocutory 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 nonimmigrantsDecisions on fines and penaltiesDecisions on BIA recognition/accreditationAttorney Discipline matters

Most Common Appeal Types Asylum, withholding, CATCriminal issuesCancellation of removal – LPR or non-LPRTermination of removal proceedingsIJ denial of motions – such as motion to reopen or motion to change venue

Preparing For Possible Appeal PRACTICE POINTERWhat to Do Before the Immigration Judge:Make and preserve your Record: objections, requests for continuances, interpreter issues, request to supplement the recordMemorialize off-the-record agreements, restrictions and rulings in the recordGive a solid Closing ArgumentTake near-verbatim notes of Oral Decisions Do not waive appeal unless decision fully favorable

PRACTICE POINTER – SUBPOENAS-LAYING FOUNDATIONAffirmatively ask IJ to enforce subpoena8 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.

• 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 How do you file an appeal before the BIA?

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.

Detained cases Simultaneou s 21-day briefing scheduleResponse briefs accepted – try to file within14 days Board will not delay adjudication to wait for response brief.Non-detained casesFiling party: 21 daysOther party: 21 days to file response briefCross appeals? Simultaneous 21-day briefin g schedul e BIA w ill accept additional reply brief –try to file w/in 14 daysExtensions of Time – BIA Practice Manual 4.7(c)One 21 day extension readily grantedAdditional extensions RARE. Require serious medical emergency, death or similar reason.Briefing schedules: Detained vs. non-detained

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; orFactual/legal issues not “substantial” (no definition i n 8 C.F.R.)Less of an issue than in past.Strategies to avoid summary affirmance:Argue that issues not squarely controlled by existing precedentArgue errors made not harmlessArgue tha t issue s are substantia l an d novel O r argue tha t reman d is nece s sar y t o require furthe r fact-finding unde r the prope r lega l standard

MOTIONS IN YOUR BIA BRIEF -1 PRACTICE POINTEROPPOSITION TO SUMMARY AFFIRMANCE MOTION THAT DHS WILL INEVITABLY MAKEMOTION FOR ORAL ARGUMENTMOTION TO REMAND IF ALIEN QUALIFIES FOR NEW RELIEF, EG USC BABY BORN AND NOW QUALIFIES FOR CANCELLATIONMOTION TO REMAND IF CLIENT GETS TRAVEL DOCUMENTS AND VOLUNTARY DEPARTURE WAS DENIED DUE TO LACK OF TRAVEL DOCS.

MOTIONS IN YOUR BIA BRIEF – 2PRACTICE 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 PENDINGMOTION TO REMAND IF PRIORITY DATE BECOMES CURRENT.MOTION TO REMAND IF ALIEN QUALIFIES FOR NEW RELIEF, EG USC BABY BORN AND NOW QUALIFIES FOR CANCELLATIONMOTION FOR 3-MEMBER PANEL (NEXT SLIDE)

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)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 construin g th e meanin g o f 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 er r oneou s factua l determinatio n b y an immigration judge; or T o revers e th e decisio n o f a n immigratio n judg e o r th e Service, othe r tha n a reversa l unde r Sectio n 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 RECAPEACH 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 BASISOUTLINE KEY PARTS OF TRANSCRIPT – TR. AT ?PAGECROSS-REFERENCE TRANSCRIPT REFERENCES WITH THINGS THAT IJ RELIED ONDID IJ FAIRLY RE-CAP TESTIMONYDID IJ LEAVE OUT HELPFUL CORROBORATING TESTIMONY

GETTING READY TO WRITE-2 PRACTICE POINTERLOOK IN THE RECORD OF EXHIBITS FOR EXCERPTS THAT SUPPORT YOUR POINTS OR REBUT IJ’S FINDINGS OF LAW AND FACTSMAKE A LIST OF THE EXCERPTS AND CITATIONS TO RECORDOUTLINE YOUR POINTSAFTER YOU WRITE UP POINTS, MAKE A SUMMARY OF ARGUMENT AND PUT IT AT FRONT OF BRIEFFOR BIA, YOU CAN USE LISTS IN ADDITION TO STRAIGHT PROSE.

GETTING READY TO WRITE-2 PRACTICE POINTERDON’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 WritingUnderstan d BIA Structure and OperationsStaff Attorneys do first level review and a draft decisionCase loads are heavy – Make it easy to understand your issues/argumentsHighlight important quotationsCite to/Quote from key documentsAppend any “Silver Bullet” Transcript pages or ExhibitsUse the Practice ManualParts of Brief in order – 4.6(c)(iv)Formatting Guidance and Length

Practioner’s Tips for Brief Writing Avoid Common PitfallsChoose issues wisely; relegate minor points to footnotesBeware of boilerplate and model briefsIndividualize your briefAllocated space should correspond to significance of issueBe Clear About RemedyAffirmanceOutright ReversalRemandDoes Record Support Your Request?

BIA decisionsWhen 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) 898-7180Recorded procedural information and clerk’s office: (703) 605-1007

What comes next?I f you win, can DHS appeal? NoIf you lose, can you appeal? YesTo Circuit Court, within 30 days of BIA decisionFile a Petition for Review. Procedure varies dependin g on rules of Circuit Court.Note: Circuit Court does not always have jurisdictionSome limitations on discretionary opinions by BIANo jurisdiction over aliens removable for committing certain criminal offense s (IN A § 242(a)(2)(C)) , bu t Circuit ha s jurisdiction t o determin e it s ow n jurisdiction.

Additional Resources - 1BIA Directory http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htmBender’s Immigration Bulletin (free subscription)http://www.bibdaily.comAILAhttp://www.aila.orgEOIR VIRTUAL LAW LIBRARYhttp://www.justice.gov/eoir/vll/libindex.html

Additional Resources - 2EOIR VIRTUAL LAW LIBRARYhttp://www.justice.gov/eoir/vll/libindex.htmlBIA precedent decisionsCountry conditions research-more than country reports! Federal RegisterImmigration Law Advisor – DOJ newsletter- has many interesting articles and roundup of BIA and Federal Decisions; about 10 issues/year