Preparing Your Brief on a Petition For Review of Removal Order Holly Cooper,U.C. Davis Law School Matt Adams,Northwest Immigrant Rights Project

Do a Fresh Intake Immigration law in constant evolution  Executive programs (DACA)  DAPA/DACA litigation Client’s facts may change  U visa and VAWA eligibility can change

Do a Fresh Intake Lawyers make legal errors Overlook citizenship claims Changes in the law  Ie) Dimaya v. Lynch- finding a portion of the statutory definition of crime of violence void for vagueness.

Mediation You should consider mediation if your client qualifies for new executive action, new benefits due to a change in his/her facts, or if the law changes. Don’t waste the court’s time if you and the government can come to an agreement.

Identify the Decision on Appeal Immigration judge’s decision  On review where BIA affirms the IJ’s decision Board of Immigration Appeals’ decision  On review where it provides new or additional reasoning.  Both IJ and BIA decisions may be on review (ie. if BIA affirms IJ on some issues, but provides new, additional reasoning on other claims).

Checklist for Issue Spotting Standard of proof—did IJ and BIA use the correct standard of proof or any standard of proof at all? Legal standard—did IJ and BIA use the correct legal standard applicable to your client’s case? Evidence—did the IJ and BIA weigh all relevant evidence? Proper waivers—did the IJ obtain the proper waivers from pro se respondent? (ie. waiver of right to counsel, waiver of right to present evidence).

SEC v. Chenery, 332 U.S. 194 (1947) “a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency,” 332 U.S. at 196.

Chenery Doctrine cont. First determine the basis provided by the agency  Did the BIA adopt the IJ’s rationale or replace it? If unclear, then remand may be appropriate:  “ It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.” Chenery, 322 U.S. at 196.

Chenery Doctrine cont. Reject any attempt to provide alternative or missing rationale  “Justice Department’s lawyers are not allowed to supply the agency’s missing rationale in its brief—nor are we.” Gattem v. Gonzales, 412 F.3d 758, 768 (7 th Cir. 2005) (Posner dissent).

Chevron Deference Step one: Court must analyze the plain language of statute to determine if intent is clear. If intent is clear there is no room to defer to agency interpretation. Step two: If intent is not clear, Court will defer to reasonable agency interpretation of a statutory scheme it is entrusted to administer. Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837 (1984)

Chevron Deference Step One: Is the statute clear?  Go beyond the plain language (any creative advocate can almost always argue there are alternative interpretations)  Court will apply the “traditional tools of statutory construction” to determine if statue is ambiguous  Whether the statute is ambiguous is a legal issue determined de novo by the Court of Appeals

Chevron Deference Step two—when to defer to the agency? 1. Is the statute at issue one over which the agency is responsible to administer?  E.g., is the agency interpreting the INA or a criminal statute, even one referenced in the INA?

Chevron Deference Step two (cont.)—when to defer to the agency? 2. Did agency rely on precedent decision?  “interpretations promulgated in a non-precedential manner are ‘beyond the Chevron pale.’ ”Estrada-Rodriguez v. Mukasey, 512 F.3d 517, 520 (9th Cir. 2007). 3. Is the interpretation reasonable?  Is it clear, does it contradict prior interpretations?

Retroactivity Identify the correct immigration statute, regulation, and agency decisions that will govern your case. Generally, the law in effect at the time of your client’s conviction will govern. If US citizenship claim, laws in effect at the time of birth or when the last condition precedent was fullfilled.

Case Digest Vartelas v. Holder, 132 S.Ct (2012) INS v. St. Cyr, 533 U.S. 289 (2001) Miguel Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007) Toia v. Fasano, 334 F.3d 917 (9th Cir. 2003) Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011)(en banc) Montgomery Ward v. FTC, 691 F.2d 1322 (9th Cir. 1982) Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014)

Waiver Legal issues must be raised in your opening brief or you risk waiving them. If government fails to raise an issue in its response brief, argue the issue is waived in your reply. If the issue was not raised before the agency, try and meet an exception to waiver (issue of law, etc.). Waiver is separate from exhaustion—do not confuse the two. Exhaustion is jurisdictional, but waiver is not jurisdictional and has exceptions.