Practice Before the Board of Immigration Appeals April 30, 2013

Practice Before the Board of
Immigration Appeals
April 30, 2013
• Karen Grisez, Public Service Counsel, Fried, Frank,
Harris, Shriver & Jacobson LLP.
• David Neal, Chairman, Board of Immigration
• 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
• Appeals from decisions on visa petitions (approx
• 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
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
• 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
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
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
• Beware of boilerplate and model briefs
• Individualize your brief
• Allocated space should correspond to significance of
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
Bender’s Immigration Bulletin
Department of State Country Reports
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?
•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:
(Use the chat box on the right of your screen to ask questions.)
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IAN Pro Bono Resource Center
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immigrants on a pro bono basis
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as specialized content for pro bono attorneys
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bono projects
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