Jurisdiction of BIA• Appeals from most Immigration Judge decisions

on the merits• Denials of motions to reopen• Bond appeals• Interlocutory appeals (i.e., change of venue

denied)• Appeals from decisions on visa petitions (approx

4,000)• Appeals from denials of INA § 212 waivers of

inadmissibility for nonimmigrants• Decisions on fines and penalties• Decisions on BIA recognition/accreditation• Attorney Discipline matters

Most Common Appeal Types

•Asylum, withholding, CAT• Criminal issues• Cancellation of removal – LPR or non-LPR• Termination of removal proceedings•IJ denial of motions – such as motion to reopen or motion to change venue

Preparing For Possible AppealPRACTICE POINTER

What to Do Before the Immigration Judge:•Make and preserve your Record: objections, requests for continuances, interpreter issues, request to supplement the record

•Memorialize off-the-record agreements, restrictions and rulings in the record

• Give a solid Closing Argument• Take near-verbatim notes of Oral

Decisions• Do not waive appeal unless decision fully favorable

PRACTICE POINTER – SUBPOENAS-LAYING FOUNDATION

•Affirmatively ask IJ to enforce subpoena8 CFR § 1003.35(b)(6) requires the IJ to enforce their subpoena (emphasis added): (6) Invoking aid of court. If a witness neglects or refuses to appear and testify as directed by the subpoena served upon him or her in accordance with the provisions of this section, the Immigration Judge issuing the subpoena shall request the United States Attorney for the district in which the subpoena was issued to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and testify and to produce the books, papers or documents designated in the subpoena.

• Timing (Received at BIA within 30 days of service of decision whether by hand or mail.No Mailbox Rule.)

• Notice of Appeal (EOIR-26)

• Remember to Request Oral Argument

(can be waived later)

• Notice of Appearance (EOIR-27) – Required even if you were the attorney before the IJ

• Filing Fee ($110 payable to U.S. Dept. of Justice) Or Fee Waiver (EOIR – 26A)

• Proof of Service on all forms• All forms available at www.justice.gov/eoir

How do you file an appeal before the BIA?

What happens next?• BIA issues Receipt• File FOIA to the BIA for the full record if:

a. Case has a very large record –paginated record is easier to work with and search electronically; or b. Case came from another attorney – ensures you have the full record: every exhibit, motion, filing, etc…

• BIA will send Transcript and IJ Decision with Briefing Schedule. • Exception: appealing denial of Motion to

Reopen - listen to tapes at court for MTR appeals; FOIA; you can cite to hearing recording (BIA Practice Manual 4.6). In brief, make motion for tapes to be transcribed.

Detained cases• Simultaneous 21-day briefing schedule• Response briefs accepted – try to file within14 days • Board will not delay adjudication to wait for response

brief.Non-detained cases

• Filing party: 21 days• Other party: 21 days to file response brief•Cross appeals? Simultaneous 21-day briefing schedule• BIA will accept additional reply brief –try to file w/in 14 days

• Extensions of Time – BIA Practice Manual 4.7(c)• One 21 day extension readily granted•Additional extensions RARE. Require serious medical emergency, death or similar reason.

Briefing schedules: Detained vs. non-detained

Avoid Affirmance Without Opinion8 C.F.R. § 1003.1(e)(4)(ii): a decision will be affirmed without opinion if:

•IJ decision was correct; error was harmless; issues squarely controlled by case law/statute; or

• Factual/legal issues not “substantial” (no definition in 8 C.F.R.)

• Less of an issue than in past.

Strategies to avoid summary affirmance:• Argue that issues not squarely controlled by existing precedent

• Argue errors made not harmless• Argue that issues are substantial and novel•Or argue that remand is necessary to require further fact-finding under the proper legal standard

MOTIONS IN YOUR BIA BRIEF -1

PRACTICE POINTER• OPPOSITION TO SUMMARY AFFIRMANCE

MOTION THAT DHS WILL INEVITABLY MAKE• MOTION FOR ORAL ARGUMENT• MOTION TO REMAND IF ALIEN QUALIFIES FOR

NEW RELIEF, EG USC BABY BORN AND NOW QUALIFIES FOR CANCELLATION

• MOTION TO REMAND IF CLIENT GETS TRAVEL DOCUMENTS AND VOLUNTARY DEPARTURE WAS DENIED DUE TO LACK OF TRAVEL DOCS.

MOTIONS IN YOUR BIA BRIEF – 2PRACTICE POINTER

• MOTION FOR ADMINISTRATIVE CLOSURE (IS CLIENT ELIGIBLE FOR 601A PROVISIONAL WAIVER? CLIENT DACA ELIGIBLE OR DACA GRANTEE?)

• MOTION TO REMAND IF I-130 IS FILED (HASHMI) OR I-130 IS APPROVED WHILE APPEAL IS PENDING

• MOTION TO REMAND IF PRIORITY DATE BECOMES CURRENT.

• MOTION TO REMAND IF ALIEN QUALIFIES FOR NEW RELIEF, EG USC BABY BORN AND NOW QUALIFIES FOR CANCELLATION

• MOTION FOR 3-MEMBER PANEL (NEXT SLIDE)

Getting Three-Member Panel Review•Single Judge Review permitted unless appeal qualifies for 3-member review under 8 C.F.R. §1003.1(e)(6)

• MOVE FOR PANEL REVIEW AT BEGINNING OF BRIEF Identify ALL applicable reasons for 3 member review:

• To settle inconsistencies among the rulings of different immigration judges;

• To establish a precedent construing the meaning of laws, regulations, or procedures;

• To review decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents;

• To resolve a case or controversy of major national import;• To review a clearly erroneous factual determination by

an immigration judge; or• To reverse the decision of an immigration judge or the

Service, other than a reversal under Section 1003.1(e)(5).•Remember to argue against 3 Member Review if you won in Immigration Court

GETTING READY TO WRITE-1 PRACTICE POINTER

• OUTLINE IJ DECISION AND CITE TO IJ DECISION PAGE NUMBERS:– FACTS RECAP– EACH REASON FOR FINDING ADVERSE

CREDIBILITY AND ITS BASIS IN RECORD THAT IJ INDICATED SHE/HE RELIED ON

– EACH FINDING OF LAW/FACT AND IJ’S BASIS• OUTLINE KEY PARTS OF TRANSCRIPT – TR. AT ?

PAGE• CROSS-REFERENCE TRANSCRIPT REFERENCES

WITH THINGS THAT IJ RELIED ON• DID IJ FAIRLY RE-CAP TESTIMONY• DID IJ LEAVE OUT HELPFUL CORROBORATING

TESTIMONY

GETTING READY TO WRITE-2 PRACTICE POINTER

• LOOK IN THE RECORD OF EXHIBITS FOR EXCERPTS THAT SUPPORT YOUR POINTS OR REBUT IJ’S FINDINGS OF LAW AND FACTS

• MAKE A LIST OF THE EXCERPTS AND CITATIONS TO RECORD

• OUTLINE YOUR POINTS• AFTER YOU WRITE UP POINTS, MAKE A SUMMARY

OF ARGUMENT AND PUT IT AT FRONT OF BRIEF• FOR BIA, YOU CAN USE LISTS IN ADDITION TO

STRAIGHT PROSE.

GETTING READY TO WRITE-2 PRACTICE POINTER

• DON’T THROW AWAY ANY ISSUES - SOMETIMES THE BIA “HANGS THEIR HAT” ON AN ISSUE THAT YOU MAY HAVE CONSIDERED MINOR.

• STAY ABREAST OF NEW LAW IN AND OUT OF YOUR CIRCUIT [BENDERS IMMIGRATION DAILY IS FREE!]. ASK FOR REMAND BASED ON NEW LAW IF APPLICABLE. IF OUTSIDE CIRCUIT NEW LAW IS FAVORABLE, WRITE MOTION TO REMAND AND EXPLAIN WHY THE REASONING OF THAT OPINION IS SOUND.

Tips for Brief WritingUnderstand BIA Structure and Operations

•Staff Attorneys do first level review and a draft decision

•Case loads are heavy – Make it easy to understand your issues/arguments

• Highlight important quotations• Cite to/Quote from key documents• Append any “Silver Bullet” Transcript pages or Exhibits

• Use the Practice Manual• Parts of Brief in order – 4.6(c)(iv)• Formatting Guidance and Length

Practioner’s Tips for Brief WritingAvoid Common Pitfalls

•Choose issues wisely; relegate minor points to footnotes

•Beware of boilerplate and model briefs

•Individualize your brief•Allocated space should correspond to significance of issue

Be Clear About Remedy• Affirmance• Outright Reversal• Remand

Does Record Support Your Request?

BIA decisionsWhen are they issued?• Generally a few months after briefing completed, but can be up to a year or more.

• BIA tries to expedite detained cases.• Served on client and attorney by regular

mail.

How to you keep track of your Board case/get updates?• EOIR hotline:(800) 898-7180• Recorded procedural information and

clerk’s office: (703) 605-1007

What comes next?• If you win, can DHS appeal? No• If you lose, can you appeal? Yes

•To Circuit Court, within 30 days of BIA decision•File a Petition for Review.•Procedure varies depending on rules of Circuit Court.

•Note: Circuit Court does not always have jurisdiction

• Some limitations on discretionary opinions by BIA•No jurisdiction over aliens removable for committing certain criminal offenses (INA § 242(a)(2)(C)), but Circuit has jurisdiction to determine its own jurisdiction.

Additional Resources - 1BIA Directory http://www.justice.gov/eoir/vll/qapracmanual/apptmtn4.htm

Bender’s Immigration Bulletin (free subscription)http://www.bibdaily.com

AILAhttp://www.aila.org

EOIR VIRTUAL LAW LIBRARYhttp://www.justice.gov/eoir/vll/libindex.html

Additional Resources - 2

EOIR VIRTUAL LAW LIBRARYhttp://www.justice.gov/eoir/vll/libindex.html• BIA precedent decisions• Country conditions research-more than country

reports!• Federal Register• Immigration Law Advisor – DOJ newsletter- has

many interesting articles and roundup of BIA and Federal Decisions; about 10 issues/year