B.A., in the Matter of
(a) Respondent's Brief and Reply Brief in Support of Claim for Asylum and Withholding of Deportation
(b) Supplemental Brief
BIA (January 1992)
Author: Pamela Goldberg, Supervising Attorney

The respondent is an Albanian moslem woman from the former Yugoslavia who fears persecution on account of her membership in a particular social group. She refused to submit to her husband's violence and domination and fatally shot her husband in self-defense. As a result of her defiance of traditional and cultural norms of behavior for Albanian moslem women, she argues that she will be subject to the custom of blood feuding, which requires vengeance for a killing and which will be especially enforced against her as a woman who violated her defined social role.

The respondent pled guilty to manslaughter and served four years in prison. The Immigration Judge found that she was ineligible for asylum and withholding of deportation because he found she had been convicted of a particularly serious crime. The brief argues that no crime is particularly serious per se unless so designated by Congress, and that Congress limited this per se determination to aggravated felonies. Even if a crime is particularly serious, the brief argues that Congress required judges to make a separate finding of danger to the community before denying withholding of deportation. In the respondent's case, the Immigration Judge failed to consider the underlying circumstances of her conviction or to determine whether she poses a danger to the community.

The brief argues that the regulation barring asylum to an applicant convicted of a particularly serious crime is ultra vires and conflicts with the Congressional mandate that only aggravated felons be barred from asylum. Even if the regulation is valid, a separate showing of danger to the community is required. Furthermore, since asylum is discretionary, the respondent should have been allowed to present evidence of favorable equities in her case, including the abuse she suffered from her husband that led to her crime, her rehabilitation and stable lifestyle, and the finding by the BHRHA and the Immigration Judge that her fear of persecution was reasonable.

The brief discusses the standards of eligibility for asylum based on social group persecution and argues that Albanian Moslems in Yugoslavia constitute such a group. The respondent also fears persecution based on political opinion and she argues that she need not show past persecution to establish her claim. The reply brief argues that a conviction for a crime of moral turpitude is irrelevant to determining eligibility for asylum or withholding; the issue is whether the conviction is for a particularly serious crime, and her status as a battered woman is relevant to this determination. The reply brief also refutes the government's position that persecution must be the result of governmental action. The supplemental brief addresses changed circumstances in Yugoslavia, contending that the changes strengthen the respondent's claim.
Order No.: BB-92-20
(a) 53pp; $10 for NLG and non-profits; $15 for non-NLG
(b) 14pp; $5 for NLG and non-profits; $7 for non-NLG

Bahadori, in the Matter of
Respondent's Brief
Authors: Daniel Wolf
Robert Jobe

This brief supports the appeal of an Iranian man who was denied both political asylum in the United States and withholding of deportation to Iran. Having converted from Islam to Christianity, the respondent fears persecution based on his religious beliefs. In addition, the respondent claims that his political beliefs conflict with those of the current Iranian regime, and that government authorities have persecuted his family still living in Iran.
Although the Immigration Judge found that the respondent did meet the criterion of having a well-founded fear of persecution, asylum was denied as a matter of discretion. Negative factors in the decision include the respondent's convictions for burglary and possession of cocaine for sale, and his misstatement of the circumstances surrounding his burglary crime. In addition, the IJ held that the respondent was ineligible for withholding of deportation because he had committed a "particularly serious crime," and he could not show "clear probability" of persecution.

The brief to the BIA argues that the IJ abused his discretion in denying asylum, and erred in that he underestimated the probability of persecution, failed to take into consideration favorable supporting factors of the respondent's claim, and wrongly labelled the respondent's crime as a "particularly serious crime." The brief concludes that the Board should reverse the decision of the IJ on these grounds.

The Board heard the appeal and upheld the decision of the IJ to deny asylum and withholding of deportation. The U.S. Court of Appeals for the Ninth Circuit, however, granted the respondent's petition for review of the Board's decision, and remanded the case.
Order No.: BB-89-23
37 pp; $10 for NLG members and non-profits $15 for non-members

Bamondi v. INS
Appellee's Brief
9th Cir. (March 1991)
Authors: Peter Schey, Carlos Holguin, Nora E. Milner and Richard Garcia

The brief examines the EAJA statute and argues that INS' deportation of plaintiff was illegal and their position defending it in the district court was not substantially justified. The brief analyzes the statute and the standard of review in EAJA cases. The brief examines INS' litigation position and concludes that their arguments were unreasonable and lacking in justification. It also analyzes INS' position that the district court lacked subject matter jurisdiction over all legalization cases and argues that the position cannot be justified. In addition, the brief argues that INS' position could not be justified because it had already been rejected repeatedly. Finally, the brief argues that consideration of an interlocutory appeal does not constitute substantial justification for EAJA purposes.
Order No.: BB 90-10
30 pp; $10 for NLG members and non-profits; $15 for non members.

Barrera-Garcia v. INS
Brief for Petitioner
5th Cir. (December 1995)
Author: Lisa Brodyaga

This is an appeal of a denial of a § 212(c) application. The brief reviews the applicable law for 212(c) cases. The brief argues that under Matter of Burbano the Board must exercise independent judgment in deciding an application for discretionary relief. The brief also discusses rehabilitation as a key factor in determining relief under 212(c).
Order No.: BB-95-3
45pp; $10 for NLG and non-profits; $15 for non-NLG

Berhea v. Reno
a) Motion for Preliminary Injunction and Brief in Support
b) Response to Defendants' Opposition to Motion
S.D. Texas (April 1996)
Authors: Mary Kenney, Cynthia M. Cano, and Peter Williamson

This complaint was filed on behalf of refugees whose spouses were not allowed to "follow to join" them solely because they married after their preliminary or final interview for refugee status but prior to their entry into the United States as well as those who had children born after the time of the preliminary or final interview but prior to their time of entry into the United States. The plaintiffs argue that the statute compels the admission of these family members. The brief discusses the statutory and regulatory history of the Refugee Act of 1980 and the purpose of the provisions allowing the spouses and children of refugees to follow to join. The brief also discusses the standards for a preliminary injunction, analyzes the procedures for approving and admitting refugees and argues that the plaintiffs are likely to succeed on the merits. The brief also argues that defendants' policies violate the Equal Protection Clause of the U.S. Constitution.

The response brief discusses at what point a refugee qualifies for admission and argues that the INS practice violates the Due Process and Equal Protection clauses of the constitution and cause irreparable harm to a protected liberty interest. The response brief finally argues that the statute must be interpreted consistent with the U.S.' treaty obligations.
Order No.: BB-96-7
a) 33pp; $10 for NLG and non-profits; $15 for non-NLG
b) 48pp; $10 for NLG and non-profits; $15 for non-NLG

Black, in the Matter of
Memorandum in Support of Bond Redetermination
EOIR, Buffalo (Oct. 1989)
Author: Gerald Seipe

This brief examines the plain meaning of INA §242A and argues that the INS' attempt to treat offenders as aggravated felons is inconsistent with manifest Congressional intent and is ultra vires.
Order No.: BB-89-14
5 pp; $5 for NLG members and non-profits; $7 for non-members

Blanco-Lopez v. INS
(a) Petitioner's Opening Brief
(b) Petitioner's Reply Brief
9th Cir. (May 1987)
Author: Christopher J. Brelje

Petitioner admitted the allegations in the OSC, conceded deportability, requested asylum and withholding of deportation and moved for a change of venue. The IJ denied the motion. The written asylum application received a form letter advisory opinion form the Department of State which failed to respond to the particular facts of the application. Petitioner's motions to remand to the Department of State, to compel attendance of Department of State witnesses or to respond to interrogatories were also denied.

The brief argues that the refusal to grant the change of venue was an abuse of discretion since his witnesses resided at his new address and could not attend the hearing. He also had little time to prepare his case with counsel in a jurisdiction across the country from the current residence. The IJ based his decision on the fact that petitioner was originally apprehended in his district and had travelled over 3,000 miles to get to the U.S. and so should be able to travel to his hearing. The brief argues that place of residence is the determining factor and that other considerations cannot enter into the decision.

The brief also argues that a form letter advisory opinion from the Department of State does not provide an opportunity for explanation or rebuttal as required by the regulations. Further, the denial of petitioner's motions violated his right to rebut evidence against him in violation of due process. The brief also contends that petitioner's testimony, explicitly found credible by the BIA, established his well-founded fear or persecution based on political opinion. His detention and threats against him subjected him to greater risk than the general population. Finally, petitioner argues that the BIA failed to apply the correct legal standard of Cardoza-Fonseca in evaluating petitioner's claim.

The reply brief contends that the motivation of the person who threatened the petitioner is irrelevant to subsequent government persecution based of political opinion. It further asserts that it is not necessary to show an actual difference in political philosophy between persecutor and victim to establish political persecution, as long as there is a perceived difference. Petitioner argues that "prosecution" and "persecution" by the government can not be mutually exclusive since such a construction would enable a torturer to be free of the charge of political persecution merely by accusing the victim of criminal activity. An individual arrested for criminal activity who is then tortured for his political views is politically persecuted, nevertheless.

The Ninth Circuit reversed the BIA, finding it irrelevant that the anticipated persecution by security forces arose from a personal dispute. It also found that the persecution by security forces suffered by petitioner was not "a form of legitimate criminal prosecution." The court ruled that the petitioner's claim met the clear probability standard for withholding of deportation and remanded to the Attorney General to exercise discretion with regard to asylum. The Ninth Circuit decision accompanies the briefs.
Order No: BB-87-32
(a) 24 pp; $5 for NLG members and non-profits; $7 for non-members
(b) 40 pp; $10 for NLG members and non-profits; $15 for non-members


Bowman, In Re
Petition and Memorandum in Support of Motion for Habeas Corpus, TRO and other Injunctive Relief
U.S. D.C. Mass. (October 1990)
Author: Lory Rosenberg

The petition is based on the failure of the BIA to rule on a Motion to Reopen following their denial of a stay of deportation based on the conclusion that there was not a likelihood of success on the merits. The petition is also based on the District Director's denial of a stay of deportation and plaintiff's detention subject to deportation. The petition was filed in response to INS' action to deport plaintiff on a date certain. The memorandum reviews the jurisdiction issue for issuance of a TRO and writ of habeas corpus. The memorandum also argues that the District director's denial of a stay contradicts the regulations as well as administrative and judicial case precedents. The memorandum finally argues that the granting of a TRO is warranted.
Order No.: BB-89-22
52 pp; $10 for NLG members and non-profits; $15 for non-members

Bravo-Sanchez, in the Matter of
Respondent's Brief
BIA (March 1995)
Author: Mary Kenney

Deportation proceedings against the respondent, a 13-year old child, were terminated upon finding that all of the INS' evidence was inadmissible because it was based on the incompetent statements of the minor. Rather than appealing, the INS filed a second OSC stating the same allegations and grounds for deportation. The respondent's motion to terminate based on res judicata was denied by the IJ, who held that the principle did not apply in immigration hearings. A motion to reconsider was filed for the child contending that a new 5th Circuit decision, Medina v. INS, allowed for res judicata in deportation proceedings. This motion was sustained by a new IJ; the INS appeals this decision to the BIA.

On appeal, the respondent argues that, under Medina, res judicata is applicable when "the original case before the administrative agency was adjudicatory." Two Supreme Court decisions also support that principle. Given that the INS was acting in a judicial capacity, resolving conflicting issues of fact where both parties had an opportunity to litigate, res judicata should apply. Additionally, fairness requires that res judicata be applied; otherwise, INS could continue refiling the same charge upon losing a case, leading to endless relitigation.

The other major issue on appeal was whether there had been a final judgment on the merits in the first hearing precluding further litigation on those issues. The INS maintains that the IJ's finding of inadmissibility prevented it from fully litigating the issues. The respondent asserts that, under Medina, the INS only need be present, present the central issue, and waive appeal to sufficiently litigate an issue. The principle of res judicata does not require a decision on the merits of a case.
Order No.: BB-95-1
23 pp; $5 for NLG and non-profits; $7 for non-NLG.