“GANG OF 14” FORMER IMMIGRATION JUDGES AND BIA APPELLATE IMMIGRATION JUDGES (INCLUDING ME) FILE AMICUS BRIEF IN SUPPORT OF ADMINISTRATIVE CLOSING! – Matter of Castro-Tum

HERE’S “OUR HERO” STEVEN H. SCHULMAN OF AKIN GUMP’S DC OFFICE WHO DID ALL THE “HEAVY LIFTING” OF DRAFTING THE BRIEF:

HERE’S THE “CAST OF CHARACTERS” (A/K/A “GANG OF 14”):

Amici curiae are retired Immigration Judges and former members of the Board of Immigration Appeals, who seek to address the Attorney General’s certified questions regarding administrative closure. Amici were appointed to serve at immigration courts around the United States and with the Board, and at senior positions with the Executive Office of Immigration Review. From their many combined years of service, amici have intimate knowledge of the operation of the immigration courts, including the importance of various procedural mechanisms to maintain efficient dockets. As explained in detail, administrative closure, when used judiciously, is a critical tool for immigration judges in managing their dockets. Without tools like administrative closure, immigration judges would be hampered, unable to set aside those matters that do not yet require court intervention and thus prevented from focusing on the removal cases that demand immediate attention.

In particular, the Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and Page 2 of 32 is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.

The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003-2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Page 3 of 32 Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.

The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War. Page 4 of 32

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Edward Kandler was appointed as an Immigration Judge in October 1998. Prior to his appointment to the Immigration Court in Seattle in June 2004, he served as an Immigration Judge at the Immigration Court in San Francisco from August 2000 to June 2004 and at the Immigration Court in New York City from October 1998 to August 2000. Judge Kandler received a Bachelor of Arts degree in 1971 from California State University at San Francisco, a Master of Arts degree in 1974 from California State University at Hayward, and a Juris Doctorate in 1981 from the University of California at Davis. Judge Kandler served as an assistant U.S. trustee for the Western District of Washington from 1988 to 1998. He worked as an attorney for the law firm of Chinello, Chinello, Shelton & Auchard in Fresno, California, in 1988. From 1983 to 1988, Judge Kandler served as an assistant U.S. attorney in the Eastern District of California. He was also with the San Francisco law firm of Breon, Galgani, Godino from 1981 to 1983. Judge Kandler is a member of the California Bar.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Page 5 of 32 Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Prop Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association. Page 6 of 32

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.

The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. She has also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School. Page 7 of 32

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review until he retired in 2011, helping manage FOIA, Privacy and Security as EOIR Records Manager. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket 1990-95. Mr. Villageliu was a member of the Iowa, Florida and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, Iowa he joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT………………………………………………………………………………………………………………… 7

I. Immigration Judges and the Board have inherent and delegated authority to order administrative closure in a case ……………………………………………………………………………… 7

A. Federal courts have recognized that judges possess an inherent authority to order administrative closure………………………………………………………………………… 8

B. Regulations establishing and governing Immigration Judges ratify their inherent authority to order administrative closure. …………………………………………. 9

II. The Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure……………………………………………………………………….. 13

A. The legal standard set forth in Avetisyan and W-Y-U- gives the Immigration Judge the correct degree of independence in deciding motions for administrative closure. ……………………………………………………………………………… 13

B. The facts and disposition of the case at bar show that the legal standard under Avetisyan and W-Y-U- is working correctly. ………………………………………………… 16

III. Fundamental principles of administrative law hold that the Attorney General cannot change the regulations that grant this authority without proper notice and comment rulemaking. ……………………………………………………………………………………………………….. 18

A. Practical docket management considerations weigh in favor of retaining administrative closure. ……………………………………………………………………………… 19

B. Due process considerations also weigh in favor of retaining administrative closure. …………………………………………………………………………………………………… 21

IV. Options such as continuances, dismissal without prejudice, and termination without prejudice, are suboptimal as compared to administrative closure. …………………………….. 22

V. There is no reason to attach legal consequences to administrative closure. ………………… 25

FINALLY, HERE’S THE COMPLETE BRIEF FOR YOUR INFORMATION AND READING PLEASURE:

Former IJs and Retired BIA Members – FINAL Castro-Tum Brief

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  • Thanks again to all retired my colleagues. What a great opportunity to “reunite online” in support of a critically important cause affecting the American Justice System!
  • Special thanks to Judge Jeffrey Chase for spearheading the effort and getting all of us together!
  • “Super Special Thanks” to the amazing Steven H. Schulman, Partner at Akin Gump DC and to Akin Gump for donating your valuable time and expertise and making this happen!

PWS

02-17-18

 

 

 

 

HON. JEFFREY CHASE COMMENTS ON THE BIA’S RECENTLY WITHDRAWN AMICUS INVITATION ON THE ONE-YEAR BAR!

https://www.jeffreyschase.com/blog/2017/11/16/the-bias-withdrawn-amicus-invitation

Jeffrey writes:

The BIA’s Withdrawn Amicus Invitation

The BIA recently withdrew as moot its invitation for amicus briefs on the following issue: whether an applicant who filed a late application for asylum based on two separate grounds (i.e. religion and coercive population control), and who demonstrated changed conditions as to the religion-based claim to allow for late filing, could have their asylum claim considered as to both grounds.  My question is why the Board felt the need to invite briefing on this issue in the first place?

In the 1990s, several high profile events caused Congress to address the issue of asylum reform.  An early version of a House bill addressing the subject would have required an asylum application to be filed within 30 days of arrival in this country.  The bill’s sponsors believed that asylum applications filed by individuals who had been in this country several years lacked legitimacy, and were being filed as a dilatory tactic in removal proceedings, or affirmatively simply as a way to obtain employment authorization.   I remember explaining to members of Congress (including one of the three sponsors of the bill) that it took potential asylum seekers well in excess of 30 days just to get an initial appointment with pro bono groups such as the one I volunteered with at the time.  If the organization accepted the case, it would take additional time to place it with a law firm (which would usually have to first determine that representation was free of any conflicts of interest).  That was all before the pro bono attorney had even met with the client for the first time.  Furthermore, the filing deadline was being considered in conjunction with a sped-up asylum adjudication process under which asylum officers would issue a final decision on asylum claims within 60 days of receipt.  This meant that asylum applicants really needed to file their documentation along with the application.  But for a refugee forced to suddenly flee their country, compiling supporting documentation from overseas can take time.  Advocacy efforts succeeded in persuading Congress to extend the original 30-day filing deadline to the present one year.

However, an additional concern remained.  When meeting with members of Congress on this issue in the 1990s, I raised the following hypothetical: what if a lawful F-1 student receives a call from home during their third year of college, informing the student that their brother was arrested, the police were asking about the student’s own whereabouts, and warning the student to not return home.  The student in this scenario is a legitimate refugee, but the one-year deadline has long passed.  Congress therefore created an exception to the one-year deadline for changed conditions that give rise to a well-founded fear of persecution.  And in the case before the BIA, the respondent satisfied this exception by establishing changed conditions arising more than one year after the last entry to this country that gave rise to a fear of persecution on account of the respondent’s religion.

Apparently, in addition to the new religion claim, the respondent had a preexisting basis for claiming asylum based on China’s coercive population control policies.  Having been allowed to apply for asylum, the respondent sought to include the older basis for asylum as well as the new ground.  It is not clear what the argument might be for not allowing this.  As the respondent was already found eligible to file an asylum application based on the religion claim, allowing the coercive population control claim would not bestow on the respondent any additional benefits beyond those already obtained through the accepted religion-based asylum claim.  Thus, allowing both grounds to be considered would not encourage the late filing of fraudulent applications for the purpose of obtaining employment authorization.  Furthermore, as the respondent was already pursuing the religion-based asylum claim in removal proceedings, allowing consideration of the additional ground would not serve any dilatory purpose.  The length of time required to complete the removal proceedings before the immigration judge would be the same whether the claim was based on one or two grounds.  Thus, allowing both grounds to be considered would not run afoul of either of the concerns that Congress meant to address in establishing the one year filing deadline.  It is thus entirely unclear why the BIA would consider barring the second ground from consideration.

There are legitimate reasons why one might not file an asylum claim within one year of entry.  In some instances, the refugee was simply not aware of the filing deadline; it is possible that he or she did not even learn of the relief of asylum until well after arrival.  Some refugees may be forced to stay with family or friends living in remote areas where legal advice is not readily available.  But even in urban centers, pro bono resources are presently stretched to their limits, and many lack the funds upon arrival to retain private attorneys.  Some with legitimate fears of persecution might have chosen not to apply due to unfavorable case law, a lack of supporting documentation, or a variety of other legal considerations.

The decision as to whether or not to come forward and apply for asylum, and possibly expose oneself to the risk of deportation, is a complicated one.  But once the decision has been made, it is to the advantage of all to hear any and all bases for asylum at once.  Besides from the administrative efficiency of such an approach, the Board needs to realize that a person’s fears and risks of harm are not so clearly compartmentalized.  An asylum claim begins with the applicant’s subjective fear of persecution.  Various fears may overlap or provide context.  For example, would an asylum claimant who had already experienced traumatic persecution at the hands of China’s government for violating the family planning policies be more likely to possess a genuine subjective fear of future persecution by the same governmental authorities on account of their religion?  Or would the applicant be objectively more likely to be singled out for religious persecution where the government had previously targeted them on population control grounds?

Although it became moot in the case presently before the Board, the issue is likely to be a recurring one.  As the Board’s recent asylum decisions have left much to be desired, it is hoped that when its members eventually consider this issue in a precedential decision, they will reach the correct result.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED BY PERMISSION

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I believe that Jeffrey and I have both consistently made the point that the BIA’s precedent decisions all to often fail to reflect a practical understanding of how asylum practice works from the private sector perspective.  That’s probably because none of the BIA’s current Appellate Immigration Judges has any recent experience representing asylum applicants.

PWS

11-16-17

BIA REQUESTS AMICUS BRIEFS ON “ONE YEAR BAR” ISSUE FOR ASYLUM ELIGIBILITY!

“Amicus Invitation No. 17-10-17
AMICUS INVITATION (EXCEPTION TO THE 1-YEAR ASYLUM BAR), DUE November 16, 2017

OCTOBER 17, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUE PRESENTED:

(1) Whether respondents who file an asylum application based on religion and coercive population control grounds more than 1 year after their arrival in the United States and demonstrate that they filed within a reasonable period of the changed circumstances as to their religion claim would be eligible to seek asylum based on both grounds, or whether they must also demonstrate that they filed within a reasonable period of the changed circumstances relating to their coercive population control claim in order to be eligible to seek asylum on that ground.

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-10-17. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-10-17. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by November 16, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

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Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.”

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PWS

10-18-17

BIA Requests Amicus Briefing On Modified Categorical Approach & CIMT — Deadline Is July 12, 2017

https://www.justice.gov/eoir/page/file/972601/download

June 12, 2017, Amicus Invitation Amicus Invitation No. 17-06-12 AMICUS INVITATION (MODIFIED CATEGORICAL APPROACH & CIMTS) DUE [JULY 12, 2017] JUNE 12, 2017 The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s): ISSUE(S) PRESENTED: (1) Is the Board precluded from applying a modified categorical analysis for an indivisible or means-based statute within the context of crime involving moral turpitude (CIMT) determinations, when the requirement in question is whether the involved conduct is reprehensible, which is a subjective determination that is not an element of the state offense? (2) Do the “three basic reasons for adhering to an elements-only inquiry,” Mathis v. United States, 136 S. Ct. 2243, 2252-53 (2016), have force in the CIMT context? (3) Do the answers to the first two questions require modification of the Board’s decision in Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), and if so, how? Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual. Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation. Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear and brief. Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

June 12, 2017, Amicus Invitation Amicus Invitation No. 17-06-12 AMICUS INVITATION (MODIFIED CATEGORICAL APPROACH & CIMTS) DUE [JULY 12, 2017] JUNE 12, 2017 The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s): ISSUE(S) PRESENTED: (1) Is the Board precluded from applying a modified categorical analysis for an indivisible or means-based statute within the context of crime involving moral turpitude (CIMT) determinations, when the requirement in question is whether the involved conduct is reprehensible, which is a subjective determination that is not an element of the state offense? (2) Do the “three basic reasons for adhering to an elements-only inquiry,” Mathis v. United States, 136 S. Ct. 2243, 2252-53 (2016), have force in the CIMT context? (3) Do the answers to the first two questions require modification of the Board’s decision in Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016), and if so, how? Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual. Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appeal must explicitly identify that it is responding to Amicus Invitation No. 17-06-12. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation. Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear and brief. Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

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PWS

06-14-17 Continue reading BIA Requests Amicus Briefing On Modified Categorical Approach & CIMT — Deadline Is July 12, 2017

EOIR Embroiled In Controversy On Several Fronts!

Few agencies in the U.S. Government are as publicity and conflict averse as the Executive Office for Immigraton Review (“EOIR,” pronounced “Eeyore”), a division of the U.S. Department of Justice that houses the U.S. Immigration Court system. So, officials at EOIR and their DOJ handlers must be “going bananas” (when they aren’t preoccupied with the Comey firing) about several recent news items that cast an unwelcome spotlight on the agency.

First, super-sleuth NPR reporter Beth Fertig smoked out the story of ex-con Carlos Davila (12 years in prison for first-degree manslaughter and  sexual abuse while on parole) who is using the EOIR “recognition and accreditation” program to practice law (without a license) under the guise of being a “nonprofit charitable organization.” Davila is apparently under investigation by EOIR, but continues to practice.

As a result of Beth’s story, New York Congresswoman Nydia Velázquez  has asked the House Judiciary Committee to investigate the program.

As noted in the article, the “R&A” program, allows well-qualified non-attorneys working at reputable nonprofit charitable organizations to represent migrants in Immigration Court and/or before the DHS. The R&A program fills a critically important role in providing due process in the U.S. Immigration Courts. This is particularly true today, in light of increased enforcement and very limited pro bono and “low bono” immigration attorney resources.

The Davila situation, as described by Beth, sounds like a scam to me.  Under the regulations, “accredited representatives” are supposed to be working for “recognized organizations” — nonprofits that provide legal services (usually along with other types of social services) on a largely pro bono basis.

Only “nominal fees” can be charged. But the term “nominal fees” has never been defined. We worked on it, off an on, for most of my tenure as BIA Chair in the late 1990s and never could come up with a specific definition that was acceptable to both NGOs and bar associations.

From the article, it appears to me that Davila is actually running a profit-making law firm for himself and his staff under the “shell” of a non-profit.  For example, charging someone $200 for a piece of paper that basically restates their rights under the Constitution, the INA, and the regulations seems far beyond a “nominal fee.” The research is simple, and the card itself could be printed off for a few cents a copy. So, $200 seems grossly excessive.

Also, fees of $1,000 to $3,500 for asylum applications seem to be beyond “nominal fees.”  If fact, that’s probably close to what some legitimate “low bono” law firms would charge. So, it seems like Davila is really practicing law for a living without a license, rather than providing essentially pro bono services for a charitable organization.

I agree that there should be more thorough investigation and vetting of organizations and accredited representatives by EOIR. This seems like something that should be right up Attorney General Sessions’s alley.

To my knowledge, EOIR does not currently employ any “investigators” who could be assigned to the EOIR staff working on the recognition and accreditation program. But there are tons of retired FBI agents and DHS agents out there who could be hired on a contract basis to do such investigations. Given the money that this Administration is planning to throw at immigration enforcement, finding funds for a needed “upgrade” to this program should not be a problem.

Here are link’s to Beth’s initial article and the follow-up:

http://www.wnyc.org/story/felon-has-federal-approval-represent-immigrants-and-now-hes-selling-this-id

http://www.wnyc.org/story/congresswoman-calls-more-oversight-non-lawyers-representing-immigrants

The second controversial item concerns an ongoing dispute between the Federation for American Immigration Reform (“FAIR”) and the Immigration Reform Law Institute (“IRLI”) on one side and the Southern Poverty Law Center (“SPLC”)  and other immigrants’ rights groups on the other. In  2014, the SPLC and other advocacy groups requested that the BIA “strike” an amicus brief filed by FAIR and IRLI because, among other things, FAIR was a “hate group.” FAIR responded by asking EOIR to discipline the SPLC and other advocacy group attorneys involved for “unprofessional conduct.”

On March 28, 2016, the EOIR Disciplinary Counsel issued a confidential letter finding that the SPLC and related attorneys had engaged in professional misconduct. However, in lieu of formal disciplinary proceedings, the Disciplinary Counsel issued a “reminder” to the concerned attorneys “that practitioners before EOIR should be striving to be civil and professional in their interactions with each other, the public, and the Board and Immigration Courts.”

But, that was not the end of the matter. On May 8, 2017, the IRLI published the “confidential” letter of discipline on the internet, stating:

“Although the SPLC’s utter lack of ethics was thoroughly condemned by the DOJ, the agency inexplicably requested that FAIR keep their conclusions confidential. FAIR and IRLI have complied with the request for more than a year; however, in that time, the SPLC has continued and escalated its attacks on both FAIR and IRLI, likely in part in retaliation for FAIR and IRLI filing a complaint with DOJ regarding its conduct. At this time, IRLI has decided it must release the letter to defend itself and protect its charitable purposes.”

So, now, the EOIR “confidential” letter is sitting smack dab in the middle of what looks like the “Hundred Years War” between FAIR and the SPLC.  Not the kind of “stuff” that EOIR and DOJ like to be involved in!

On the plus side, perhaps in response to this situation, the BIA in 2015 changed its amicus procedures to publicly request briefing from any interested party in matters of significant importance that likely will lead to precedent decisions. Indeed, a number of such notices have been published on this blog.

Here’s a copy of the IRLI posting which contains a link to the 2014 “confidential” letter from the EOIR Disciplinary Counsel.

http://www.prnewswire.com/news-releases/irli-releases-obama-justice-department-reprimand-of-the-southern-poverty-law-center-over-its-derogatory-tactics-frivolous-behavior-300453406.html

Stay tuned.

PWS

05-10-17

 

 

 

 

 

AMICUS INVITATION (PROTECTED CLASS OF VICTIMS), DUE MARCH 6, 2017

Amicus Invitation No. 17-02-02
AMICUS INVITATION (PROTECTED CLASS OF VICTIMS), DUE MARCH 6, 2017

FEBRUARY 2, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUE PRESENTED:

(1) Whether, in light of the decision of the United States Court of Appeals for the Ninth Circuit in Ortega-Lopez v. Lynch, 834 F.3d 1015 (9th Cir. 2016), a conviction under 7 U.S.C. § 2156(a)(1), constitutes a crime involving moral turpitude under the Immigration and Nationality Act. In this regard, discuss whether a crime involving moral turpitude requires a protected class of victims and, if so, whether animals may constitute a protected class of victims.

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-02-02. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-02-02. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by March 6, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

1

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

 

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PWS

02/03/17

Opportunity Knocks: Amicus Invitation No. 17-01-26 AMICUS INVITATION (ATTEMPT TO TRANSPORT A NARCOTIC DRUG FOR SALE), DUE FEBRUARY 27, 2017

Amicus Invitation No. 17-01-26
AMICUS INVITATION (ATTEMPT TO TRANSPORT A NARCOTIC DRUG FOR SALE), DUE FEBRUARY 27, 2017

JANUARY 26, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

  1. (1)  Whether, assuming that Arizona prohibits at least one narcotic drug that is not within the Federal controlled substances schedules and that its statute is not divisible, a conviction for attempt to transport a narcotic drug for sale under Ariz. Rev. Stat. §§ 13-3408(A)(7) and 13-3408(B)(7) is a crime involving moral turpitude. Please discuss in this regard Matter of Khourn, 21 I&N Dec. 1041 (BIA 1997), and Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016).
  2. (2)  Whether the respondent is removable under section 212(a)(2)(A)(i)(II) or section 212(a)(2)(C) of the Immigration and Nationality Act based on a conviction for attempt to transport a narcotic drug for sale under Ariz. Rev. Stat. §§ 13-3408(A)(7) and 13- 3408(B)(7), in light of Mathis v. United States, ___U.S.___, 136 S.Ct. 2243 (2016); Lopez-Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015); and Matter of Chairez, 26 I&N Dec. 819 (BIA 2016).

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-26. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-26. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages. 1

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by February 27, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

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Once again, kudos and thanks to the BIA for asking for public input on these “sure to be precedent” issues!

PWS

01/27/17

Another BIA Amicus Opportunity — This Time On Marriage Fraud In Visa Petitions — Deadline Feb. 13, 2017

Amicus Invitation No. 17-01-12
AMICUS INVITATION (MARRIAGE FRAUD IN VISA PETITIONS), DUE FEBRUARY 13, 2017

JANUARY 12, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

(1) Is a determination of marriage fraud in a prior visa petition proceeding alone sufficient to deny a subsequent visa petition submitted on behalf of the same beneficiary in a subsequent visa petition proceeding, or is the USCIS District Director obligated to conduct an independent determination as to whether there was a prior fraudulent marriage?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-12. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-12. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by February 13, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and

provide parties time to respond.

1

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

*************************************

Go for it!

PWS

01/12/17

 

Attention Advocates: Another Chance To Change The Course Of the Law — BIA Requests Amicus Briefs On “Material Support Bar!”

Amicus Invitation No. 17-01-09
AMICUS INVITATION (MATERIAL SUPPORT BAR), DUE FEBRUARY 8, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

  1. (1)  Does the word “material” in section 212(a)(3)(B)(iv)(VI) of the Immigration and nationality Act have an independent meaning, or is the phrase a term of art in which “material” has no independent meaning?
  2. (2)  Assuming there is a de minimis exception to the material support bar, does that exception apply to contributions of money?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-09. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-09. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information is not available in this case.
Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by February 8, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

1

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

2

********************************

The deadline is February 8, 2017 and the above posting contains complete instructions on how to file.

Kudos to the BIA for seeking public input on these important issues!

PWS

01/10/17

Advocates: Here’s Your Opportunity To Shape The Future Of American Immigration Law — Don’t Blow It! — BIA Asks For Amicus Briefing On Whether “Misprision Of A Felony” Is A “Crime Involving Moral Turpitude!”

Amicus Invitation No. 17-01-05
AMICUS INVITATION (MISPRISION OF A FELONY), DUE FEBRUARY 6, 2017

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

  1. (1)  Does the offense of misprision of a felony under 18 U.S.C. § 4 categorically qualify as a crime involving moral turpitude? Please see in that regard and address Matter of Robles- Urrea, 24 I&N Dec. 22 (BIA 2006), reversed, Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012); and Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002).
  2. (2)  Assuming the Board should decide to adhere to Matter of Robles-Urrea, supra, in circuits other than the Ninth, is the application of such precedent impermissibly retroactive to convictions for acts committed prior to the publication of Matter of Robles- Urrea inasmuch as that decision overruled a prior precedent holding that misprision of a felony was not a crime involving moral turpitude?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-05. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 17-01-05. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by February 6, 2017. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply

1

to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus briefs.

**********************************

The key case to read is Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), where the Ninth Circuit rejected the BIA’s conclusion in Matter of Robles- Urrea, 24 I&N Dec. 22 (BIA 2006) that misprision of a felony is “categorically” a “crime involving moral turpitude” for removal purposes.

In  simple terms, among other things, the BIA is now considering whether to “blow off” the reasoning of the Ninth Circuit in other circuits and adhere to its prior interpretation which the Ninth Circuit found to be wrong and which, of course, is must less favorable to respondents.

So, anybody who thinks that the BIA is about to “bark up the wrong tree” here (and, not for the first time, ignore the well reasoned decision of an Article III Court under the so-called “Chevron doctrine”) better get their group together and get crackin’ on a brief to convince the BIA that the Ninth Circuit got it right.

The deadline is February 6, 2017, (WARNING:  The BIA seldom extends amicus deadlines) and everything you need to know about how to file the brief is in the BIA’s notice, reproduced above.

Here are links to Robles-Urrea v. Holder:  https://casetext.com/case/roblesurrea-v-holder

and Matter of Robleshttps://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3542.pdf to help you get started.

Good luck!

PWS

01/06/17