BIA – Page 115 – immigrationcourtside.com

Law You Can Use — Arlington Immigration Court Attorney Advisor Roberta Oluwaseun Roberts Explains How Possible Document Fraud Can Be Examined In Immigration Court While Respecting Due Process!

From the February 2017 edition of EOIR’s Immigration Law Advisor:

“The Board of Immigration Appeals has long emphasized that “no decision should ever rest, or even give the slightest appearance of resting, upon generalizations derived from evaluations of the actions of members of any group of aliens. Every adjudication must be on a case-by-case basis.” Matter of Blas, 15 I&N Dec. 626, 628 (BIA 1974). But what if counsel for the Department of Homeland Security (“DHS”) or the Immigration Judge notices significant similarities between the documents submitted in an applicant’s proceedings and the proceedings of another applicant with a similar claim? How can officers of the court raise these types of concerns about possible indications of fraud without compromising confidentiality or the due process rights of the applicant? In 2007, the United States Court of Appeals for the Second Circuit encouraged the Board to provide a framework for addressing inter-proceeding similarities and provide “expert guidance as to the most appropriate way to avoid mistaken findings of falsity, and yet identify instances of fraud.” Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 524 (2d Cir. 2007). The Board provided this guidance in a 2015 decision, Matter of R-K-K-, 26 I&N Dec. 658 (BIA 2015), which has thus far been cited approvingly in published and unpublished decisions by two circuit courts of appeals. See, e.g., Wang v. Lynch, 824 F.3d 587, 591–92 (6th Cir. 2016); Zhang v. Lynch, 652 F. App’x 23, 24 (2d Cir. 2016).

This article analyzes the procedural framework articulated by the Board in Matter of R-K-K- for considering document similarities in immigration proceedings. First, the article will briefly discuss the need for such a framework. Second, the article will provide examples of what may—or may not—constitute each step that must be met in the three-step framework. Finally, the article will discuss due process and confidentiality concerns that arise when considering inter-proceeding similarities in making credibility determinations.”

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My friend Roberta is one of the all-star Attorney Advisors and Judicial Law Clerks who help the U.S. Immigration Judges at the U.S. Immigration Court in Arlington, VA with their most difficult decisions. Working with Roberta and others like her, both present and past, was one of the true high points of being an Immigration Judge. I’m sure that their intellectual engagement, enthusiasm, and overall positive outlook helped extend my career. Thanks again to Roberta for passing along this terrific scholarly contribution. Due process forever!

PWS

03/01/17

New From 4th Cir: BIA Applied Wrong Standard In Determining Bona Fides Of Marriage — Upatcha v. Sessions, 02-22-17

https://drive.google.com/file/d/0B_6gbFPjVDoxS2F5M2NJYkFMbURsWmxkMWFRMWJYdGdSSHR3/edit

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The “good faith marriage standard” for waiver is a legal determination subject to de novo (rather than “clear error”) review.

PWS

02/27/17

Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

https://www.buzzfeed.com/zoetillman/backlogged-immigration-courts-pose-problems-for-trumps-plans?utm_term=.pokrzE6BW#.wcMKevdYG

Zoe Tillman reports:

“ARLINGTON, Va. — In a small, windowless courtroom on the second floor of an office building, Judge Rodger Harris heard a string of bond requests on Tuesday morning from immigrants held in jail as they faced deportation.
The detainees appeared by video from detention facilities elsewhere in the state. Harris, an immigration judge since 2007, used a remote control to move the camera around in his courtroom so the detainees could see their lawyers appearing in-person before the judge, if they had one. The lawyers spoke about their clients’ family ties, job history, and forthcoming asylum petitions, and downplayed any previous criminal record.
In cases where Harris agreed to set bond — the amounts ranged from $8,000 to $20,000 — he had the same message for the detainees: if they paid bond and were set free until their next court date, it would mean a delay in their case. Hearings set for March or April would be pushed back until at least the summer, he said.
But a couple of months is nothing compared to timelines that some immigration cases are on now. Judges and lawyers interviewed by BuzzFeed News described hearings scheduled four, five, or even six years out. Already facing a crushing caseload, immigration judges are bracing for more strain as the Trump administration pushes ahead with an aggressive ramp-up of immigration enforcement with no public commitment so far to aid backlogged courts.
Immigration courts, despite their name, are actually an arm of the US Department of Justice. The DOJ seal — with the Latin motto “qui pro domina justitia sequitur,” which roughly translates to, “who prosecutes on behalf of justice” — hung on the wall behind Harris in his courtroom in Virginia. Lawyers from the US Department of Homeland Security prosecute cases. Rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
As of the end of January, there were more than 540,000 cases pending in immigration courts. President Trump signed executive orders in late January that expanded immigration enforcement priorities and called for thousands of additional enforcement officers and border patrol officers. But the orders are largely silent on immigration courts, where there are dozens of vacant judgeships. And beyond filling the vacancies, the union of immigration judges says more judges are needed to handle the caseload, as well as more space, technological upgrades, and other resources.
Homeland Security Secretary John Kelly acknowledged the immigration court backlog in a memorandum released this week that provided new details about how the department would carry out Trump’s orders. Kelly lamented the “unacceptable delay” in immigration court cases that allowed individuals who illegally entered the United States to remain here for years.
The administration hasn’t announced plans to increase the number of immigration judges or to provide more funding and resources. It also isn’t clear yet if immigration judges and court staff are exempt from a government-wide hiring freeze that Trump signed shortly after he took office. There are 73 vacancies in immigration courts, out of 374 judgeships authorized by Congress.
“Everybody’s pretty stressed,” said Paul Schmidt, who retired as an immigration judge in June. “How are you going to throw more cases into a court with 530,000 pending cases? It isn’t going to work.”

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Zoe Tillman provides a well-reaserched and accurate description of the dire situation of justice in the U.S. Immigration Courts and the poorly conceived and uncoordinated enforcement initiatives of the Trump Administration. Sadly, lives and futures of “real life human beings” are at stake here.

Here’s a “shout out” to my good friend and former colleague Judge Rodger Harris who always does a great job of providing due process and justice on the highly stressful Televideo detained docket at the U.S. Immigration Court in Arlington, VA. Thanks for all you do for our system of justice and the cause of due process, Judge Harris.

PWS

02/24/17

BREAKING: WashPost: DHS Memos Detail Ramped Up Enforcement — Key Provisions: 15,000 More Agents, More Detention, Expanded Expedited Removal, Return To Mexico Pending Hearings, Target U.S. Parents Of Smuggled Kids, More Use Of Locals To Enforce Immigration Laws, PD Restricted, More IJ Televideo To Border, More Scrutiny of Credible Fear — Border Patrol Union Happy — DACA Remains (For Now) — David Nakamura Reports — Read Memos Here!

https://www.washingtonpost.com/politics/memos-signed-by-dhs-secretary-describe-sweeping-new-guidelines-for-deporting-illegal-immigrants/2017/02/18/7538c072-f62c-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-top-table-main_dhs815pm%3Ahomepage%2Fstory&utm_term=.bcdb7a1851e0

“Homeland Security Secretary John F. Kelly has signed sweeping new guidelines that empower federal authorities to more aggressively detain and deport illegal immigrants inside the United States and at the border.

In a pair of memos, Kelly offered more detail on plans for the agency to hire thousands of additional enforcement agents, expand the pool of immigrants who are prioritized for removal, speed up deportation hearings and enlist local law enforcement to help make arrests.

The new directives would supersede nearly all of those issued under previous administrations, Kelly said, including measures from President Barack Obama aimed at focusing deportations exclusively on hardened criminals and those with terrorist ties.

. . . .

The memos don’t overturn one important directive from the Obama administration: a program called Deferred Action for Childhood Arrivals that has provided work permits to more than 750,000 immigrants who came to the country illegally as children.”

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Here are the two memos signed by Secretary Kelly (thanks to Professor Alberto Benitez):

http://www.mcclatchydc.com/news/politics-government/white-house/article133607784.ece/BINARY/DHS%20enforcement%20of%20immigration%20laws

http://www.mcclatchydc.com/news/politics-government/white-house/article133607789.ece/BINARY/DHS implementation border security policies

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Looks like everything is a “priority,” almost everyone will be detained, and DHS Assistant Chief Counsel won’t be offering PD or other negotiated “deals” except in extraordinary situations.

It’s not even clear from this whether the ACCs will still have authority to “waive appeal” in cases where the DHS loses. If not, that means that the BIA could also be overwhelmed with marginal DHS appeals.

While one of the memos notes the 534,000 Immigration Court backlog, there is a total disconnect in putting all these new priorities into Immigration Court without any plan for dealing with the 534,000 already there. (Most folks already here arrived at least two years ago, so even the greater use of expedited removal will leave hundreds of thousands of potential new filings for the Immigration Courts.)

When everything is a priority, nothing is a priority! Looks to me like another ill-conceived, “built to fail,” scheme. Over time, these plans are likely to be taken apart by the Article III Courts, bit by bit, piece by piece, until we have total chaos in the immigration enforcement system. Haste makes waste.

PWS

02/18/17

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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As noted in this article, in addition to being leading academic “immigration gurus,” both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

What Are The Odds Of The US Immigration Courts’ Surviving The Next Four Years?

What Are The Odds Of The U.S. Immigration Courts’ Survival?

by Paul Wickham Schmidt

Despite the campaign promises to make things great for the American working person, the Trump Administration so far has benefitted comedians, lawyers, reporters, and not many others. But there is another group out there reaping the benefits — oddsmakers. For example, Trump himself is 11-10 on finishing his term, and Press Secretary Sean “Spicey” Spicer is 4-7 to still be in office come New Year’s Day 2018.

So, what are the odds that the U.S. Immigration Courts will survive the next four years. Not very good, I’m afraid.

Already pushed to the brink of disaster, the Immigration Courts are likely to be totally overwhelmed by the the Trump Administration’s mindless “enforcement to the max” program which will potentially unleash a tidal waive of ill-advised new enforcement actions, detained hearings, bond hearings, credible fear reviews, and demands to move Immigration Judges to newly established detention centers along the Southern Border where due process is likely to take a back seat to expediency.

While Trump’s Executive Order promised at least another 15,000 DHS immigration enforcement officers, there was no such commitment to provide comparable staffing increases to the U.S. Immigration Courts. Indeed, we don’t even know at this point whether the Immigration Courts will be exempted from the hiring freeze.

At the same time, DHS Assistant Chief Counsel are likely to be stripped of their authority to offer prosecutorial discretion (“PD”), stipulate to grants of relief in well-documented cases, close cases for USCIS processing, and waive appeals.

Moreover, according to recent articles from the Wall Street Journal posted over on LexisNexis, individual respondents are likely to reciprocate by demanding their rights to full hearings, declining offers of “voluntary departure” without hearing, and appealing, rather than waiving appeal of, most orders of removal. Additionally, the Mexican government could start “slow walking” requests for documentation necessary to effect orders of removal.

Waiting in the wings, as I have mentioned in previous posts, are efforts to eliminate the so-called “Chevron doctrine” giving deference to certain BIA decisions, and constitutional challenges that could bring down the entire Federal Administrative Judiciary “house of cards.”

The sensible way of heading off disaster would be to establish an independent Article I Court outside the Executive Branch and then staff it to do its job. Sadly, however, sensibility so far has played little role in the Trump Administration. Solving the problem (or not) is likely to fall to the Article III Courts.

So, right now, I’m giving the U.S. Immigration Courts about 2-3 odds of making it through 2020. That’s a little better chance than “Spicey,” but worse than Trump himself.

To read the WSJ articles on the “clogging the courts” strategy, take this link over to LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/02/13/will-strong-defensive-tactics-jam-immigration-jails-clog-immigration-courts-wsj.aspx?Redirected=true

PWS

02/14/17

Judge Edward F. Kelly Was Just Appointed To The “High Court Of Immigration” — Who Knew?

The answer is that “almost nobody knew” outside of the insular “tower” world of EOIR Headquarters in Falls Church, VA. It took some super sleuthing by ace Legal Reporter Allissa Wickham over at Law 360 to smoke this one out.

With a little help from her friends, the fabulous “AWick” came upon Judge Kelly’s name in the Roster of Board Members in The Board of Immigration Appeals (“BIA”) Online Practice Manual. (As the BIA Practice Manual was instituted during my tenure as BIA Chair, I’m gratified that someone out there is actually reading it.)

Armed with that tidbit of information, AWick was able to get confirmation of Judge Kelly’s appointment from EOIR spokesperson Kathryn Mattingly on Friday evening. Interestingly, Judge Kelly’s biography no longer appears in the online listing for the Office of Chief Immigration Judge, where he had served for a number of years as a Deputy Chief Immigration Judge. Nor has his name or biography appeared under the online listing for the BIA. In other words, Judge Kelly is somewhat “lost in EOIR space” — close to being a bureaucratic “non-person.”

For those who don’t know, the BIA is the highest administrative tribunal in the filed of immigration. With an authorized membership of 16 Appellate Immigration Judges (Judge Kelly became #15, leaving one vacancy), the BIA received more than 29,000 cases and completed more than 34,000 cases in FY 2015 and had nearly 17,000 pending at the end of that year. By comparison, for the same period, the U.S. Supreme Court received 6,475 cases and took only 81 for oral argument.

The Board also issues nationwide precedents that are binding on the U.S. Immigration Courts and the DHS. Although a part of the Executive, not the Judicial Branch, the BIA effectively occupies a position in our justice system just below that of a U.S. Court of Appeals.

Moreover, as I have pointed out in other blogs, because of the idiosyncrasies of the Supreme Court’s so called “Chevron doctrine,” the Courts of Appeals actually are required to “defer” to the BIA’s interpretation of ambiguous questions of law. Indeed, under the Supreme Court’s remarkable “Brand X doctrine” (“Chevron on steroids”) under some circumstances the BIA can reject the legal reasoning of a Court of Appeals and apply its own interpretation instead.

In other words, notwithstanding their rather cloistered existence, and attempt to remain “below the radar screen,” BIA Appellate Immigration Judges are some of the most powerful judges in the entire Federal Justice system. That makes the lack of publicity about Judge Kelly’s elevation to the appellate bench even more curious.

For those who don’t know him, Judge Kelly started moving “up the ladder” at EOIR when I appointed him to a newly created staff supervisory position at the BIA in the mid-1990s. He was selected because of his reputation for fairness, scholarship, strong writing, collegiality, and ability to teach and inspire others. In other staff positions at the BIA, Judge Kelly became a master of understanding, explaining, and recommending improvements to the case management system. I believe it was those skills and understanding of the mechanics of the Immigration Court System that made him rise to a Deputy Chief Judge position within the Office of Chief Immigration Judge in Falls Church.

Judge Kelly was at the BIA in the late 1990s when the EOIR Executive Group developed the “EOIR Vision” of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Although over the years, Department of Justice and EOIR management have essentially downplayed and moved away from any public expression or reinforcement of this noble vision, I’m confident that Judge Kelly remains committed to the due process mission we all embarked upon together several decades ago.

From his prior vantage point as a Deputy Chief Immigration Judge, Judge Kelly saw first-hand the docket and due process disaster caused by the DOJ’s politicized meddling in the daily case management practices of the U.S. Immigration Courts over the past several years. He also witnessed the general failure of the BIA to step up and stand up for the due process rights of individuals being hustled through the system with neither lawyers nor any realistic chance of effectively presenting their claims for potential life saving protection.

I hope that as the “new Appellate Immigration Judge on the block,” Judge Kelly will bring a forceful voice for due process and fairness to his colleagues’ deliberations. By doing so, perhaps he can persuade them to face and address some of the important due process and fairness issues in the Immigration Courts that they have been avoiding.

Judge Kelly’s professional bio (taken from his appointment as Deputy Chief Judge, in the absence of a formal announcement from DOJ/EOIR) is reprinted here:

“FALLS CHURCH, Va. – The Executive Office for Immigration Review (EOIR) today announced the appointment of a second deputy chief immigration judge (DCIJ). Effective March 10, 2013, Assistant Chief Immigration Judge (ACIJ) Edward F. Kelly will become a DCIJ. Judge Kelly will assume direct supervision of the program components in the Office of the Chief Immigration Judge (OCIJ), including the legal unit, the language service unit, the organizational results unit, the chief clerk, and the executive officer.

“Judge Kelly’s appointment as deputy chief immigration judge is in recognition of his tremendous contributions to OCIJ’s efficiencies and services,” said Chief Immigration Judge Brian M. O’Leary. “With his expanded role, I am confident OCIJ will continue to improve our operations and inspire our staff.”

Biographical information follows:

Attorney General Holder appointed Judge Kelly as an ACIJ in March 2011. He received a bachelor of arts degree in 1982 and a juris doctorate in 1987, both from the University of Notre Dame. From November 2009 to March 2011, Judge Kelly served as senior counsel and chief of staff for OCIJ. From 2007 to 2009, he was counsel for operations for OCIJ at EOIR. From 1998 to 2007, Judge Kelly was a senior legal advisor for the Board of Immigration Appeals (BIA), EOIR. From 1995 to 1998, he served as a supervisory attorney and team leader for the BIA. From 1989 to 1993 and again from 1994 to 1995, Judge Kelly was an attorney advisor for the BIA. From 1987 to 1989, he served as an assistant counsel, Subcommittee on Immigration, Refugees, and International Law, U.S. House of Representatives, Washington, D.C. From 1982 to 1984, he served in the U.S. Peace Corps in Gabon, Africa. Judge Kelly is a member of the Virginia State Bar.”

Perhaps, eventually, EOIR will announce Judge Kelly’s appointment. Who knows?

Additionally, those of you with full Law 360 access (which I don’t have) can read AWick’s full article at the Lexis link below.

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/02/03/board-of-immigration-appeals-gains-new-member.aspx?Redirected=true

PWS

02/04/17

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.

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

New From BIA — Matter of Kim, 26 I&N Dec. 912 (BIA 2017) — CA Mayhem A COV

https://www.justice.gov/eoir/page/file/933996/download

BIA headnote:

“The crime of mayhem in violation of section 203 of the California Penal Code, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. § 16(a) (2012).”

PANEL: JUDGES PAULEY, MALPHRUS, MULLAINE

Decision by Judge Malphrus

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PWS

01/31/17

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) 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) 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.

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.

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

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