Abbay, in the Matter of
Respondent's Brief
BIA (December 1988)
Author: Lory RosenbergThis brief discusses the standards of proof to be applied in asylum and withholding cases and analyzes the persecution of respondent under the standards set forth in Acosta. It argues that the Immigration Judge improperly held that since some churches were tolerated in Ethiopia, respondent did not establish persecution on account of religion. The judge erred in characterizing respondent's two incarcerations as no proof of persecution. The brief also contrasts the difference between persecution and prosecution to show respondent was imprisoned because he held unpopular religious beliefs. The brief discusses credibility findings and argues that the Immigration Judge erred in ruling that testimony which supports respondent's claim of asylum is not credible and impermissibly treated respondent's flight through a third country in which he did not apply for asylum as an adverse factor. The brief discusses the factors to consider in determining whether a refugee has firmly resettled in another country. Finally, it argues that the circumvention of orderly refugee procedures is an insufficient basis for a discretionary denial of asylum.
Order No.: BB-88-15
40 pp; $10 for NLG members and non-profits; $15 for non-members
Acosta Modesto, in the Matter of
Respondent's Brief
BIA (September 1992)
Author: Harvey KaplanThe case challenges the immigration judge's denial of a waiver of the joint petition requirements for removing of the conditional basis for permanent residence. The immigration judge concluded that there was not a sufficient level of commitment in the marriage. The brief reviews the requirements for a waiver and argues that the immigration judge applied an incorrect standard in considering whether the marriage was entered into in good faith. It details the legal requirements for a good faith marriage and argues that the immigration judge substituted his own moral judgments for the requirements of the law. The brief further argues that the judge's failure to meaningfully evaluate the evidence in the record is a violation of due process.
Order No: BB-92-24
24pp: $10 for NLG members and non-profits; $15 for non-members
AEDPA and 212(c)
Amici Curiae Brief
BIA (May 1996)
Author: Nadine WettsteinThis brief was filed by AILA and the NATIONAL IMMIGRATION PROJECT at the request of the BIA. It discusses the effects of the AEDPA on § 212(c) relief. 1The brief argues that the temporal reach of § 440(d) of the AEDPA does not extend to conduct occurring prior to the date of enactment of the statute and raises several arguments in support of that contention. The brief also argues that the Board is bound to follow the two-part approach set out in Landgraf and analyzes § 440(d) of the AEDPA in light of that approach. The brief also discusses constitutional and other legal implications of a retroactive application of the statute. The brief further argues that the statute does not apply to individuals in exclusion proceedings and therefore, denying relief to individuals in deportation proceedings violates the Equal Protection clause of the Fifth Amendment. In addition, the brief argues that the Attorney General's ruling in Hernandez-Casillas upholding the equal application of § 212(c) in deportation and exclusion proceedings controls the Board's resolution of this question. The brief raises several other arguments in opposition to applying the statute to pending cases.
Order No.: BB-96-3
44 pp; $10 for NLG and non-profits; $15 for non-NLG
Aggravated Felonies and Withholding of Deportation
Amici Curiae Brief
BIA (May 1996)
Author: Dan KesselbrennerThis brief, filed by AILA at the BIA's request, was written by Amy M. Nice. It discusses the bar to withholding of deportation to aggravated felons in light of § 413(f) of the AEDPA. The brief discusses the law governing the right of refugees to withholding and the implementation of the protocol under United States law. The brief reviews the rules of statutory interpretation and argues that the new provision compels a conclusion that Congress meant to void the absolute bar to withholding. The brief further argues that the Protocol requires an individualized determination of the right to withholding and that Congress has expressed its intent not to abrogate U.S. treaty obligations. The brief finally argues that the absolute bar violates due process because it fails to provide for an individualized determination of a right to withholding.
Order No.: BB-96-6
48 pp; $10 for NLG and non-profits; $15 for non-NLG
Agbai Agbai, in the Matter of
Supplementary Brief On Appeal
BIA (May 1993)
Author: AILFThis brief discusses the proper role of the immigration judge in proceedings. The brief challenges the fairness of the hearing where the immigration judge assumes an investigatory and prosecutory function. The immigration judge conducted an investigation to locate an INS officer whom neither party had called as a witness. The brief argues that the IJ crossed the line of impartiality and assumed the role of investigator, thus forfeiting his impartiality. The brief also argues that an IJ compromises his impartiality when he engages in extensive cross examination. It analyzes the requirement of an impartial adjudicator, arguing that recusal is appropriate when the IJ is unable to conduct an impartial hearing. The brief also analyzes the Fleuti doctrine in arguing that the applicant was improperly placed in exclusion proceedings.
Order No.: BB-93-12
28pp; $10 for NLG and non-profits; $15 for non-NLG
Ahmad v. Russell
Decision
D. Colo. (March 1989)
Author: Nancy ElkindFollowing a denial of political asylum by an Immigration Judge and the BIA, petitioner filed a Petition for a Writ of Habeas Corpus in federal district court. The district court held that it had the power under 28 USC §2243 to hold evidentiary hearings and review INS decisions de novo in the context of a hearing on a petition for a writ of habeas corpus. The court found that the denial was not based on substantial evidence and disputed the IJ's finding that petitioner lacked credibility. It granted the writ of habeas corpus and also granted asylum to the petitioner.
Order No.: BB-89-2
16 pp; $5 for NLG members and non-profits; $7 for non-members.
Akrap v. INS
(a) Petitioner's Brief
(b) Reply Brief 7th Cir. (January 1992)
(c) Motion to Reopen and Memorandum in Support BIA (April 1992)
Author: Mary Sfasciotti(a) Petitioner, a native of Yugoslavia, was convicted of five counts of a drug offense. His application for 212(c) relief was denied as a matter of discretion. Following the denial of his appeal by the BIA, Petitioner filed a motion to reopen based on newly discovered evidence and for asylum based on the war between Serbia and Croatia. The BIA denied the motion on the ground that he was statutorily ineligible because his lawful domicile terminated when the BIA denied the appeal. The Board also ruled he was ineligible for asylum because he was convicted of an aggravated felony.
(b) The brief argues that Petitioner's LPR status did not terminate with the BIA's denial and reviews and distinguishes the cases which define when the seven years of domicile to establish eligibility for relief must be accrued. It also argues that the requirements for eligibility for a motion to reopen were satisfied and that the BIA's refusal to consider the motion impinges on the doctrine of the exhaustion of administrative remedies. Finally, Petitioner argues that he is not an aggravated felon because his conviction was prior to the passage of the Anti-Drug Abuse Act of 1988. The reply brief argues that the appeals court had jurisdiction to rule on the motion to reopen denied subsequent to the filing of the petition for review.
(c) The motion requests that Respondent be permitted to change the designation of the country of deportation from Yugoslavia to Croatia and requests Respondent be allowed to introduce new evidence in connection with an application for 212(c) relief denied by the BIA. The memorandum analyzes Section 243(a) regarding designation of country of deportation and argues that United States recognition that Croatia is a separate country from its avowed enemy, Serbian Yugoslavia, mandates a new designation. The brief also challenges the Board's decision that eligibility for 212(c) relief ceased when it denied relief of the original appeal.
Order No.: BB-92-2
(a) 60 pp; $10 for NLG members and non-profit; $15 for non-members
(b) 30 pp; $10 for NLG members and non-profit; $15 for non-members
(c) 107 pp; $20 for NLG members and non-profits; $25 for non- members
Al-Kilani v. Barr
Appellant's Brief
9th Cir. (Oct. 1992)
Authors: Donald L. Ungar, Terry J. HelbushThe case involved the procedures followed by INS in adjudicating visa petitions filed by U.S. citizens (USC) on behalf of immigrant spouses. The issue before the court concerned procedures to be followed in cases where the INS suspects a previous marriage of the alien spouse was a sham marriage to obtain immigration benefits. Such a sham marriage would bar the approval of a subsequent spousal petition under section 204(c) of the Act. INS had coerced a statement from the alien spouse regarding the first marriage when he applied to extend his employment authorization during the pendency of his adjustment application. The USC argued that she was entitled to an impartial evidentiary hearing on the validity of the first marriage with the burden on the INS to prove it was a sham marriage. The brief distinguishes between procedural due process rights and the right to decide who may enter the United States; procedural due process rights allow a heightened scrutiny of government restrictions. The brief discusses the due process factors described in Mathews v. Eldridge and applies them to this case, arguing that the burden should be on the INS to prove by clear, unequivocal and convincing evidence in a hearing that it may revoke an approved petition because it is trying to deprive a USC of a legally protected interest in her marriage. The brief finally argues that revoking the petition was an abuse of discretion because it departed from precedent and ignored favorable evidence.
Order No.: BB-92-27
32 pp; $10 for NLG and non-profits; $15 for non-NLGAlleyne v. INS
(a)Petitioner's Brief
(b) Petitioner's Reply Brief
1st Cir. (May 1988)
(c) Motion to the BIA to Reopen and Reconsider and to Remand to the Immigration Judge with Memorandum of Law
BIA (August 1988)
Author: Lory RosenbergThe brief discusses the statutory scheme for relief from deportation under Section 212(c) of the Act and the standard of review on appeal. Petitioner claims that the BIA abused its discretion in excluding his witness and in failing to consider each of the positive equities in the record. He contends that the IJ and the BIA did not distinguish but considered, as adverse factors, arrests for which there were no convictions and ignored mitigating factors and evidence of his rehabilitation. The brief argues that petitioner was prejudiced by ineffective assistance of counsel and was thereby denied due process of law because his former counsel failed to file a brief on appeal and to properly present, in a motion to reopen and remand, his marriage to a U.S. citizen which occurred during the pendency of the appeal to the BIA. the reply brief analyzes in detail the preclusion and dismissal of evidence of positive equities that constitute an abuse of discretion.
Petitioner later moved that the First Circuit hold in abeyance its decision, or that it remand it to the BIA to consider new factors. The motion to the BIA to reopen and reconsider and to remand it to the IJ describes the new circumstances resulting from ineffective assistance of counsel, as well as evidence of rehabilitation, family ties and hardship. The memorandum includes extensive documentation describing these new factors.
Order No.: BB-88-8
(a) 45 pp; $10 for NLG members and non-profits; $15 for non-members
(b) 21 pp; $5 for NLG members and non-profits; $7 for non-members
(c) 92 pp; $15 for NLG members and non-profits; $20 for non-members
Almario v. A.G. and INS
(a) Appellant's Opening Brief
(b) Appellant's Reply Brief
Sixth Circuit (May 1988)
Author: Lucas GuttentagThis case addresses whether the two year foreign residency requirement of Section 5 of the Marriage Fraud Amendment of 1986 violates the due process and equal protection rights of United States citizens and their non-citizen spouses. The district court dismissed the suit for declaratory judgment, applying a minimal rationality standard of review. The brief argues that marriage is a fundamental interest protected by the due process clause and that the right is recognized in the immigration context. It also challenges the district court's conclusion that Section 5 does not burden the right to marry since the two year rule applies precisely because the couple marries. It asserts that a meaningful hearing is required when a fundamental right is abridged, and analyzes the requirements of due process in this context. Section 5 creates an invalid irrebuttable presumption that all marriages which occur during the pendency of proceedings are fraudulent. It also violates equal protection by classifying persons based on the exercise of a fundamental right. The government could use equally effective means to detect marriage fraud which would not unduly burden the exercise of a fundamental right.
The reply brief counters the government's and the court's reliance on Fiallo v. Bell, citing the Abourezk decision, which reached the Constitutional question in a non-immigrant visa denial case Under the Francis standard, Section 5 cannot even survive rational basis scrutiny because it is not rationally related to a legitimate government goal. It irrationally distinguishes between aliens who leave the country and those who do not. It also imposes the two year penalty on twice as many valid marriages as on fraudulent ones.
Order No: BB-88-1
(a) 48 pp; $10 for NLG members and non-profits; $15 for non-members
(b) 33 pp; $10 for NLG members and non-profits; $15 for non-members
Alvarado Guevara et al. v. INS
Brief for Appellants
5th Cir. (October 1989)
Authors: M. David Gelfand & Terry Allbritton
Richard Renner
Mark SchneiderThis is an appeal of the denial of a complaint asserting that INS' practice of paying its detainees $1.00 per day for work performed at the detention center violates the minimum wage provisions of the Fair Labor Standards Act (FLSA). The brief analyzes the language, legislative history and purpose of the FLSA and argues that detainees are not specifically exempted from the statutory definition of employee and are therefore included. The brief further argues that the district court misinterpreted and misapplied the Economic Dependency Test, thus wrongly excluding plaintiffs from the provisions of the FLSA, and incorrectly analogized plaintiffs' status as pretrial detainees to that of prisoners, who have been found not to be covered by the FLSA by some courts. Finally, the brief argues 8 U.S.C. §1555(d), which authorizes INS to pay aliens for services they perform while in custody, cannot override the FLSA and is unconstitutional as a justification for failing to pay minimum wage.
Order No.: BB-89-26
53 pp; $10 for NLG members and non-profits; $15 for non-members
Alvarez v. INS
Unpublished Per Curiam Decision
4th Cir. (January 1986)
Author: William Van WyckThe Circuit Court found that the Immigration Judge abused his discretion in denying a reasonable extension of time to supplement the petitioner's motion to reopen. It reversed, granting an extension for ten days, and directed that the motion to reopen be reconsidered after it is supplemented. Because of ineffective counsel this Salvadoran petitioner stated at his deportation hearing that he did not fear returning to his country and did not, therefore, seek asylum. The court found the combination of the allegations of inadequate assistance of counsel and a general claim of eligibility for asylum or withholding of deportation warranted the grant of a reasonable opportunity to supplement the application and complete proofs for the claim with new counsel.
Order No.: BB-86-17
9 pp; $5.00 for NIP members and non-profits; $7.00 for non-members
Alvarez-Velasquez, in the Matter of
Respondent's Brief
BIA (October 1992)
Author: Edward CoghlanRespondent was charged with misprison of a felony and entry without inspection (EWS). The immigration judge agreed that misprison of a felony was not a deportable offense in the ninth Circuit but found the respondent deportable for EWI. Counsel argued that there was no EWI and, in the alternative, that the absence was brief, casual and innocent and did not meaningfully interrupt residence. The Service failed to meet its burden of proving deportability and, because respondent is an LPR, the Service must prove the EWI by clear, convincing and unequivocal evidence. The brief analyzes the factors determining if an absence is meaningfully interruptive and concludes that any possible absence could not be meaningfully interruptive. It discusses the right to argue in the alternative and refutes the judge's analogy to the entrapment defense, which he erroneously concluded forbids argument in the alternative.
Order No: BB-92-25
28pp; $10 for NLG members and non-profits; $15 for non-members
Amanullah and Wahidullah v. Cobb
Decision on Petition for Writ of Habeas Corpus
D. Mass. (May 1987)
Author: Regina LeePetitioners, two detained Afghan asylum seekers who were denied asylum and faced exclusion and deportation to India (the country of embarkation to the U.S.), petitioned the District Court for a writ of habeas corpus. INS had represented to petitioners' counsel that they would not be returned to Afghanistan if they withdrew their appeals of the denial of asylum. Petitioners agreed and INS designated India as the country of deportation. Counsel subsequently learned from UNHCR that India does not allow the return of refugees. Counsel requested a stay of deportation until INS obtained assurances from India that petitioners would be readmitted. INS refused. The question before the court was whether the requirements of 8 USC 1227(a)(2)(D) that the Attorney General may deport excluded aliens who are refused admission to the country of embarkation to a country "which is willing to accept" them 10 require advance assurances and 2) if so, does that requirement apply to the country of embarkation as well? Judge Tauro answered both parts in the affirmative. The decision analyzes the statute and concludes that aliens may only be deported to a country that will accept them. The decision analyzes the statute and concludes that aliens may only be deported to a country that will accept them. The court traces the legislative history of section 1227 to show that the procedure for excludable aliens was intended to track the procedure for deportable aliens under 8 USC 1253(a). The court then ordered INS to undertake inquire of the Indian government prior to deportation.
Order No: BB-87-6
20 pp; $5 for NLG members and non-profits; $7 for non-members
Amanullah et al. v. Nelson
(a) Brief of Petitioners-Appellants
(b) Decision
1st Cir. (1987)
Author: Regina LeePetitioners, four detained Afghan asylum seekers, appealed a decision by the district court denying them habeas corpus relief. The brief provides a chronology of the events leading up to the arrival of these refugees to the United States and their subsequent detention by the INS, in November 1986. They have remained in detention since that time, charged with fraudulent entry into to the United States. The argument for the refugees states that their continued detention violates their right to apply for political asylum under the Refugee Act of 1980, their fifth amendment right to due process rights, and the U.N. Protocol Relating to the Status of Refugees, as incorporated in the Refugee Act.
Petitioners assert that the punitive regulations imposed by the INS are designed to coerce these refugees into abandoning their asylum claims and to use them as examples of what will happen to others who contemplate coming to the U.S. to seek asylum. Thus, they charge that their continuing detention violates their fifth amendment rights because it constitutes punishment without any finding of guilt and lacks any other semblance of due process of law. In addition, the denial of parole to these petitioners constitutes an abuse of discretion and the courts erred in refusing to permit evidentiary hearings to resolve the petitioners' constitutional, statutory and abuse of discretion claims.
The First Circuit held that petitioners were legally detained; that they have not been wrongfully deprived of parole; that their fifth amendment rights have not been breached, and that the INS, in administering its powers with regard to excludable aliens, has not violated the Refugee Act of 1980. The court reviews the history of detention and parole regulations which permit the detention of immigrants who attempt fraudulent entry into the U.S. or who lack valid documentation. It asserts that immigrants seeking initial admission to the U.S. have no constitutional rights regarding their applications, and must therefore be content to accept whatever statutory rights and privileges they are granted by Congress. It found that petitioners failed to show that the District Director abused his discretion in any way. It accepted the reasons advanced by the District Director for refusing parole to the appellants, including the risk of flight and the increased law enforcement problem that freeing them would cause. Further, the court found that entitlement to asylum is wholly separate from the Attorney General's statutory authority to afford or refuse parole; thus, denial of parole does not conflict with the right to apply for asylum. Finally, the First Circuit held that none of the appellants, as a matter of right, was entitled to an evidentiary hearing in the district court, and that each petitioner received all the process that was due, both administratively and in the court below. It concluded that all petitions for habeas corpus relief had been correctly denied.
Order No: BB-86-31
(a) 62 pp; $10 for NLG members and non-profits; $15 for non-members
(b) 47 pp; $10 for NLG members and non-profits; $15 for non-members
Amaral v. INS
(a) Petitioner's Brief and (b) Reply Brief
1st Cir. (1992)
Author: Victoria LewisThese briefs challenge the holding in Matter of Cerna that the permanent residence of an alien who concedes deportability terminates when the Board issues its final order. The briefs argue that an alien who established his eligibility prior to the commencement of proceedings maintains his permanent residence on appeal of an adverse BIA decision because the alien may remain in the US as a matter of right rather than grace. The briefs argue that the Board's interpretation of the statute is not entitled to deference because of its conflict with congressional intent, and the Board's inconsistency. The reply brief reviews the legislative history of the phrase "such status not having changed" to demonstrate the fallacy of the Board's reasoning. The briefs also argue that merely noting the evidence while ignoring it in assessing the application for a waiver, is not adequate consideration of the equities and constitutes an abuse of discretion. The brief challenges the Board's refusal to allow a motion to reopen to submit newly available evidence in support of an existing application where the appeal period of the original decision has not expired or an appeal has been timely filed. The brief analyzes the Board's interpretation of the statute and rejects it as unreasonable, inconsistent and contrary to law.
Order No.: BB-92-11
(a) 60 pp; $10 for NLG members and non-profits; $15 for non-NLG
(b) 12 pp; $5 for NLG members and non-profits; $10 for non-NLG
Anabtawi, in the Matter of
Applicant's Memorandum of Law
EOIR (May 1992)
Author: Denyse SabaghThe brief argues that the applicant, a stateless Palestinian, is a refugee under the law. The brief argues that the applicant is not firmly resettled and that his Jordanian passport serves only as a travel document, not as documentation of citizenship. The brief also argues that the Applicant's status as a stateless Palestinian would subject him to persecution in any Middle East country because Arab countries refuse to grant citizenship to Palestinians. This refusal constitutes a per se threat to Palestinians' basic human rights and freedoms and forms the basis for a well-founded fear of persecution.
Order No.: BB-92-16
41 pp; $10 for NLG members and non-profits; $15 for non-NLG.
Arana-Cabrera v. INS
Appellant's Opening Brief
9th Cir. (1992)
Authors: Judith L. Wood & Jesse A. MoormanThe brief argues that attempted or actual forced conscription into military organizations which commit illegal acts of war is persecution under international and domestic law. The brief demonstrates that under international law, illegal acts of war are practiced regularly in El Salvador. The brief further argues that conscientious objectors and those who refuse to serve in illegal warfare are refugees under both international and domestic law. The brief contends that imputed political opinion remains a valid basis for relief, even after Elias-Zacarias. The brief then reviews the definition of a well-founded fear of persecution and concludes that the appellant was persecuted on account of imputed political opinion. The brief challenges the standard of proof used by the BIA and that the erroneous standard used violates due process. The brief also argues that a non-political motive for avoiding conscription does not negate a political motive or disprove the case for asylum. The brief challenges the interpretation applied to Elias-Zacarias requiring decisions to be upheld absent evidence so compelling that no reasonable fact finder could fail to find the requisite fear, contending that it violates the standards in the INA. The brief reviews the principle of separation of powers and concludes that to the degree the Elias-Zacarias decision establishes such a test, it usurps the function of the legislative branch by rewriting the standard set forth in the statute.
Order No.: BB-92-7
36 pp; $10 for NLG members and non-profits; $15 for non-members
Arevalo-Gondora v. INS
Brief for Petitioner
5th Cir. (January 1990)
Authors: Lisa Brodyaga
Thelma GarciaThe petitioner initiated deportation proceedings by filing his OSC with the EOIR within seven days of apprehension, after entering the United States without inspection. The Court was aware that he had counsel, and had affirmatively brought his case forward.
The Immigration Judge erred in: (1) proceeding with the deportation hearing, in absentia, precisely at nine a.m., to teach counsel "a lesson"; (2) refusing to reopen proceedings on his own motion, or that of petitioner, when "reasonable cause" explained petitioner and counsel's tardiness. The BIA should have reversed the decision of the IJ, reopened proceedings, and remanded the case with instructions that venue be changed to New York, to allow petitioner to pursue his applications for asylum, withholding of deportation, in the alternative, voluntary departure.
Order No.: BB-90-2
30 pp; $10 for NLG members and non-profits; $15 for non-members
Artiga-Turcios v. INS
Response to Petition for Rehearing and Suggestion for Rehearing En Banc
9th Cir. (June 1987)
Authors: Carolyn P. Blum, Kate McGrath, Susan RasconThis brief argues against the petition of the INS for a rehearing following the decision of the Court to reverse a BIA denial of relief from deportation of a Salvadoran soldier who had a proven likelihood of persecution by the guerrillas. The brief reasons that since the panel applied the correct standard of review in finding that the BIA drew unreasonable inferences from the facts and that its decision was not supported by substantial evidence, a rehearing would be inappropriate. The brief reviews the standards for requesting a rehearing and argues that the purpose is not merely reargument but to direct attention to an overlooked or misapplied issue of fact or law. The brief argues that the Court's review of the entire record does not constitute a de novo review but is a fulfillment of its obligation to ascertain if the agency's findings were supported by substantial evidence. The brief analyzes the decision in light of the evidentiary standards established by the Court in asylum and withholding of deportation decisions to show that it comports with previous decisions. Finally, the brief reviews the Court's application of the substantial evidence test to show it was properly applied.
Order No: BB-87-14
19 pp; $5 for NLG members and non-profits; $7 for non-members
Arunan, in the Matter of
Brief for the Applicant/Appellant
BIA (July, 1989)
Authors: Vera Weisz, Helen SklarThe applicant/appellant is a Tamil citizen from Sri Lanka. He applied for, and was denied, asylum and withholding of deportation. He argues that the IJ's decision to deny withholding is not supported by substantial evidence of persecution based on political opinion, social group, nationality and race by police and military authorities in Sri Lanka and by Tamil guerillas. The IJ's decision to deny asylum is not supported by the evidence and constitutes an abuse of discretion.
Order No.: BB-89-18
19 pp; $5 for NLG members and non-profits; $7 for non-members
Asylum Based on Opposition to PRC Reproductive Policies
Sample Brief by Center for Reproductive Policies
EOIR (August 1993)
Authors: Rachael N. Pine, Anika Rahman, Center for Reproductive Policies
Sharon J. PhillipsThis brief is designed for applicants whose asylum claims are based on fear of forced sterilization as a result of his opposition to and violation of the PRC's family planning policies. The brief analyzes international law and the U.S. Constitution and argues that reproductive self-determination is a constitutionally protected right as well as an international human right. It discusses when punishment for non-compliance with a law constitutes political persecution; government measures which enforce compliance with a restrictive family planning policy are such persecution. The brief also examines the doctrine of imputed political opinion as it applies to a case involving these issues. Finally, it argues that the political nature of family planning policies has been recognized by the Bush Administration as well as by the Chinese government.
Order No.: BB-93-5
28 pp; $10 for NLG members and non-profits; $15 for non-members
Avila-Lituma, in the Matter of
Respondent's Brief and Amicus Brief
BIA (October 1995 and January 1996)
Authors: Lucas Guttentag and Judy Rabinovitz, ACLURespondent's brief argues that the right to counsel is so fundamental that its denial requires reversal of the IJ's decision. The amicus brief provides an in-depth discussion of the right to counsel in deportation proceedings and argues that this right must be protected in prison deportation proceedings. The amicus brief also argues that deprivation of counsel to incarcerated permanent residents who are statutorily eligible for relief is per se prejudicial.
Order No.: BB-96-4
37 pp; $10 for NLG and non-profits; $15 for non-NLG
Azadmanesh v. Hall
Decision
10th Cir. (February 1987)
Author: Kenneth SternThis case originated from a declaratory judgement against INS for violating plaintiff's 4th amendment rights during Operation Jobs. After obtaining the declaratory judgment in his favor, plaintiff filed a Bivens action against Hall, who had been in charge of the illegal search. After a one-week trial, the jury awarded Mr. Azadmanesh $10,000 to compensate him for the deprivation of his constitutional rights (there were no actual damages). Plaintiff successfully applied for partial summary judgment based on the declaratory judgment, arguing that Hall was precluded by the previous decision from relitigating the issue of whether plaintiff's constitutional rights had been violated. The
government could not relitigate this issue because it had been fully and fairly litigated in the previous case and Hall was sufficiently in privity with the defendants in that action. Given the broad discretion granted by the Supreme Court to district courts in determining when to apply offensive collateral estoppel, the circuit court found that the lower court had not abused its discretion.
Order No: BB-87-1
7 pp; $5 for NLG members and non-profits; $7 for non-members