Cabrera De Rivera v. INS
Petitioner's Brief and Reply Brief
1st Cir. (August 1994)
Author: Harvey Kaplan

This case has an extremely complicated history, and raises many issues arising under the application of the Immigration Marriage Fraud Amendments of 1986 (IMFA). The petitioner is a conditional resident, sixty-year old mother of six adult children. The joint petition deadline was February 1991 but, before that date, Ms. Cabrera moved to Boston to be close to her children and her husband disappeared. Ms. Cabrera attempted to file a waiver of the joint petition and attended an interview with INS without assistance of counsel. In 1992 INS terminated her conditional residence for failure to show termination of a good faith marriage and issued an OSC. At this point she retained counsel, sought a divorce, moved to reopen her application with the District Director and requested a battered spouse waiver. At her deportation hearing, the IJ denied her request for a continuance in order for her divorce to become final, and refused to hear evidence on the battered spouse waiver. Ms. Cabrera appealed the decision to the BIA. When the divorce became final, Ms. Rivera withdrew her appeal and filed a motion to reopen before the DD and the IJ. Both the IJ and INS refused jurisidiction over the motion to reopen; the IJ stated that Ms. Cabrera's actions were dilatory. Ms. Cabrera then filed a notice of appeal of the IJ's denial and a new motion to reopen before the DD based on her final divorce. Both the DD and the BIA denied Ms. Cabrera's motions. She appealed the BIA's decision to the First Circuit.

As background, Ms. Cabrera discusses IMFA, IMMACT90, the Violence Against Women Act and the significance of the amendments to IMFA, as well as the standard of review for motions to reopen. She argues that she presented a prima facie case in her motion to reopen and was far from dilatory, zealously pursuing legitimate legal strategies for obtaining relief. Subsequent case law has legitimized several of counsel's actions and others are governed by no clear precedent. The government argued that a waiver of filing the joint petition must be filed within the two years conditional residence period.

On the merits, Ms Cabrera argues that the IJ erroneously disregarded after-acquired equities, violating both BIA precedent and IMFA's intent. The brief also argues that due process requires a hearing on the ultimate issue of the case, the bona fides of the marriage, which can only be accomplished by granting the motion to reopen. In addition, the BIA's failure to address any of the legal issues raised on appeal violates due process.

The reply brief counters the INS argument that a good faith waiver can not be granted unless a divorce has become final within the two-year period. INS policy and practice contradict this position; the government must apply its policies consistently. The First Circuit remanded the case to the BIA to answer this latter question only.
Order No.: BB-94-10
70 pp; $10 for NLG and non-profits; $15 for non-NLG.

Camacho Perez, in the Matter of
Memorandum in Support of Bond Appeal
BIA (1991)
Authors: Polly Bone, E.J. Flynn

Respondent was released on recognizance. When he reported to the INS to give his address and telephone, he was taken into custody under a bond of $7500. He was not given a reason for the revocation of his release. The IJ declined to determine whether the summary incarceration was an abuse of discretion. The brief discusses the AG's power to detain an alien and when his discretion may be overridden because it lacks a reasonable basis. The brief also discusses the standards for determining bond and for changing previous bond determinations.
Order No: BB-91-6
9 pp; $5 for NLG members and non-profits; $7 for non-members

Camacho v. INS
(a) Motion for Stay of Deportation and (b) Emergency Motion For Reconsideration
9th Cir. (1992)
Author: Marc Van Der Hout

The emergency motion was filed to request a discretionary stay of deportation on the grounds that a petition for review filed on behalf of an aggravated felon who was convicted prior to the enactment of the Anti-Drug Abuse Act of 1988 is not subject to the shorter filing period mandated by IMMACT 90 and Technical Amendments to the 1990 Act and should not have been dismissed as untimely filed. The INS agreed that the petition was timely filed and should not have been dismissed. The Court of Appeals reversed its decision and reinstated the petition, granting the stay of deportation.
Order No.: BB-92-10
(a) 27 pp; $10 for NLG and non-profits; $15 for non-members
(b) 36 pp; $10 for NLG and non-profits; $15 for non-members

Campos-Guardado v. INS
Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit Supreme Court (October 1987)
Author: Carol Wolchok

This is a petition for certiorari from the denial of political asylum. The decision collapsed the claim of persecution because of group membership into the category of political opinion and upheld the BIA's finding that the record was insufficient to demonstrate persecution based on political opinion. The BIA had used the clear probability standard which the court had agreed was erroneous. Nevertheless, the court accepted the Board's finding. The petition discusses the scope of the Refugee Act, and argues that the court's decision was inconsistent with Cardoza-Fonseca. The petition challenges the finding of the court and the BIA that witnessing the political execution of family members, being raped by the murderers and threatened because of her knowledge of these events, was only the result of general conditions of civil strife which beset El Salvador and not persecution. The petition argues that a claim of persecution may cross several categories and the events at issue must be analyzed cumulatively. The appendices include the decision below.
Order No: BB-87-26
53 pp; $5 for NLG members and non-profits; $7 for non-members

Campos v. INS
(a) Amici Curiae Brief in Support of Petitioner
1st Cir. (September 1991)
Authors: Harvey Kaplan
Monica Conyngham
(b) Brief in Support of Petitioner (September 1991)
(c) Decision (April 1992) 1st Cir.
Authors: Daniel Kanstroom, Rhonda Berkower

(a) The brief argues that barring 212(c) relief for those convicted of possession of a firearm because there is no comparable ground of exclusion is against Congressional intent and is not rationally related to a legitimate government interest. Those convicted for more serious offenses related to firearms are eligible for relief; Congress legislated a hierarchy of firearms crimes according to their seriousness and provided harsher penalties for the more egregious offenses. The brief discusses the history of 212(c) relief and argues that the legislative, judicial and administrative history of 212(c) evinces a desire to provide broad, ameliorative relief to LPRs who make a mistake. The brief further argues that recent Congressional amendments to the INA demonstrate an intent to make available 212(c) relief for aliens convicted of simple possession of a handgun. The brief finally argues that barring eligibility for relief to those convicted of simple possession while extending it to more serious firearms offenses violates equal protection because it is not rationally related to any legitimate government purpose or policy.

(b) The Campos brief challenges the Board of Immigration Appeals' denial of section 212(c) eligibility to a long-time lawful permanent resident of the United States convicted of unlawful possession of a firearm. Tracing the legislative, administrative and judicial history of section 212(c), the brief argues that the denial of section 212(c) eligibility to LPRs convicted of unlawful possession of a firearm violates the longstanding ameliorative purposes of the statute. The brief further argues that the statutory scheme developed by Congress in its 1988 and 1990 amendments to the INA, which grants all but the most serious aggravated felons the opportunity to apply for section 212(c) relief, demonstrates that Congress did not intend to preclude those convicted of the less serious offense of unlawful possession of a firearm from seeking section 212(c) relief. Finally, the brief asserts that the BIA's denial of section 212(c) eligibility to thsoe convicted of firearm possession offenses violates the equal protection guarantees of the fifth and fourteenth amendments. The Board's position irrationally penalizes less serious criminal conduct without furthering any conceivable government interest. Moreover, following the analysis set forth in the Second Circuit's 1976 decision in Francis v. INS, the denial of section 212(c) relief to Petitioner in deportation proceedings violates equal protection because, were petitioner seeking to re-enter the United States in exclusion proceedings, he would be excludable under the former section 212(a)(10) for multiple convictions and would be eligible to seek a 212(c) waiver for all of the convictions encompassed in his Order to Show Cause, including his firearm possession conviction.

Based upon a reading of the statute, the Court of Appeals for the First Circuit rejected Campos' arguments that precluding section 212(c) eligibility to LPRs charged with deportability under 241(a)(19) for unlawful possession of a handgun violates the intent of Congress and the constitutional guarantees of equal protection.

(c) The decision, however, does not address Petitioner's argument that section 212(a)(10) for multiple convictions is comparable to the individual deportation grounds which together form the basis of his deportability. See Fields-Lee v. INS.
Order No: BB-91-1
(a) 26 pp: $10 for NLG members and non-profits; $15 for non-members
(b) 48 pp; $10 for NLG members and non-profits; $15 for non-members
(c) 20 pp; $5 for NLG members and non-profits; $7 for non-members

Cañas-Segovia and Cañas-Segovia, In the Matter of
(a) Brief for Respondents
BIA (June 1987)
Authors: Karen Musalo, Jodie Berger
(b) Petitioner's Opening Brief
9th Cir. (March 1989)
Author: Karen Musalo

(a) This is a brief in support of the appeal of two Salvadorans whose claims to political asylum based on religious grounds stemming from their conscientious objection to military service were denied. The brief argues that the IJ incorrectly determined that forced recruitment and prosecution of conscientious objectors did not constitute persecution. It argues that the IJ did not articulate what standard he used in reaching his decision and did not apply the proper well-founded fear standard. The brief analyzes the elements of the well-founded fear standard as developed in the Ninth Circuit and affirmed by the Supreme Court and applies it to the facts in this case to demonstrate that the standard was met. The brief also provides an analysis of how conscientious objection based upon genuine religious belief is an internationally and domestically recognized basis for asylum. In addition, the brief argues that judicial prosecution of conscientious objectors because of their refusal to serve in the military also constitutes persecution, as does forced military service when contrary to genuine religious beliefs. The brief notes the evidence submitted that the government of El Salvador believes that individuals refusing to perform military service are subversives or guerrilla sympathizers and therefore subject them to extrajudicial sanctions such as torture. The brief finally argues that conscientious objector status may also serve as a basis for withholding of deportation and that the objective standard under 243(h) is satisfied here. Attachments include affidavits, decisions, sections of the UNHCR Handbook, newspaper articles and an opinion by the Library of Congress.

(b) This brief argues that the BIA erred as a matter of law in holding that conscientious objection to military service which is based on fundamental religious beliefs cannot be the basis of an asylum claim on account of religion. The brief further argues that the BIA's refusal to apply the standard established be the UNHCR Handbook interpreting as persecution punishment suffered by religious conscientious objectors defies the legislative intent behind the Refugee Act of 1980 and contradicts both federal precedent and its own rulings.

The brief also contends that the BIA erred in requiring proof that the Salvadoran government was motivated by the desire to harm members of the religion and in disregarding the motivation of the victims of the persecution or the effect of the persecution on their ability to follow the dictates of their religion. Furthermore, the BIA is erroneous in holding that, since the conscription law is neutral and applies to everyone, it cannot result in persecution of religious individuals because forcing people to either violate core religious beliefs to obey the law or face significant punishment is persecution on account of religion.

The BIA's finding that conscientious objectors in El Salvador do not face extra-judicial sanctions is not supported by substantial evidence since it relied on a lack of evidence in a previous case rather than on the evidence presented in this case.
Order No: BB-87-12
(a) 95 pp; $15 for NLG members and non-profits; $20 for non- members
(b) 87 pp; $15 for NLG members and non-profits; $20 for non- members

Cardoza-Fonseca, Motion for Reconsideration
Respondent's Motion and Memorandum
BIA (June 1987)
Author: Iris Gomez

In this motion and supporting memorandum, Respondent moves the Board to remand his political asylum case to the Immigration Judge for reconsideration in light of the Supreme Court decision in Cardoza-Fonseca. The memorandum argues tat the Board has the power to remand the case without a final decision as may be appropriate. The memorandum also argues that since the IJ used boilerplate language to find Respondent's claim did not meet any of the applicable standards for asylum, it may be inferred that he applied the stricter standard of withholding under Section 243(h). Despite the fact that the IJ accepted Respondent's evidence as true that he belonged to opposition groups in El Salvador and was imprisoned by the authorities, he found that the fact that Respondent was released from prison precluded him from showing a well-founded fear of persecution. The IJ failed to review the reasonableness of Respondent's subjective fears in light of his experiences. The memorandum concludes that the Board should not review the entire case when the IJ has not considered it under the correct legal standard.
Order No: BB-87-13
8 pp; $5 for NLG members and non-profits; $7 for non-members

Catholic Services for Immigrants v. Barr
Complaint, Motion and Memorandum in Support of Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order
W.D. Tex. (Oct. 1992)
Authors: Barbara Hines, Lee J. Teran and Robert F. Greenblum

The complaint challenges the denial of a request by plaintiffs to allow a law graduate to represent indigent clients of Catholic Services for Immigrants (CSI) before the Immigration Court. The request was denied because the law graduate was paid a salary by CSI. The memo discusses the standards for preliminary relief for a Temporary Restraining Order or preliminary injunction and the purpose of the statute and regulations allowing legal representation in deportation proceedings. The memo discusses the requirement that there be no direct or indirect remuneration and argues that receiving a salary from the organization is not direct or indirect remuneration from the clients. It argues that denial of representation violates the due process rights of the individual plaintiffs as well as of CSI. The memo also argues that there should be no deference to administrative interpretation of the pertinent statute and to regulations because the exceptions to the rule of judicial deference apply. Finally, it discusses the principle of exhaustion of administrative remedies and argues that exhaustion is not required. The district court denied the motion.
Order No.: BB-92-28
40 pp; $10 for NLG and non-profits; $15 for non-NLG

Ceballos-Castillo v. INS
Petitioner's Brief
9th Cir. (April 1989)
Author: Carolyn Patty Blum

This brief discusses in detail the standards for determining credibility. It argues that the BIA inappropriately relied on adverse credibility findings based solely on unwarranted inferences from the testimony without giving specific reasons for disregarding the unrebutted testimony. Trivial discrepancies in testimony do not undermine a claim of persecution. The brief further argues that membership in the Guatemalan civil patrol does not automatically preclude possessing a valid fear of persecution based on subsequent detention and torture by the Guatemalan authorities. The brief also argues that the BIA should not have justified disregarding evidence of fear of persecution because the parents left their young child behind when they fled the country.
Order No: BB-89-3
108 pp; $20 for NLG members and non-profits; $25 for non-members

Ceja-Corona, in the Matter of
Brief of Amici Curiae
BIA (August 1995)
Authors: Stephen Rosenbaum and Robert Gibbs

This brief discusses the confidentiality provisions of IRCA. An applicant under § 245A of the INA was turned over to an investigations agent when he inquired of a front desk examinations agent why his legalization appeal had been denied. At a deportation hearing, respondent objected to the proceedings as a violation of the IRCA confidentiality provisions. The brief discusses the purpose of the provisions and the legislative history behind them. The brief argues that the confidentiality provisions prohibit the referral of denied applications to the INS enforcement branch. In its decision, the Second Circuit acknowledged the strength of IRCA's confidentiality provision, but held that the INS obtained sufficient evidence from an untainted source.
Order No.: BB-95-2
22pp; $5 for NLG and non-profits; $10 for non-NLG

Cobourne v. INS
Brief of Petitioner
9th Cir. (September 1994)
Author: Elizabeth M. Fielder

Petitioner is legal permanent resident of over twenty years with family in the United States, including four children. Los Angeles police arrested him because his name was on a utilities bill of the house from which they purchased and seized marijuana. After being misinformed about the consequences of his plea bargain, he was sentenced to six months in jail and three years probation, ten months before Congress passed the Anti-Drug Abuse Act of 1988 (ADAA). His appeal to the Ninth Circuit attacks the denial of 212(c) relief on several procedural and substantive grounds: the BIA erred as a matter of law in finding that Mr. Cobourne was deportable as an aggravated felon; the immigration judge abused his discretion in denying Mr. Cobourne's waiver; the IJ denied Mr. Cobourne the right to counsel; and the denial of counsel deprived Mr. Cobourne of due process.

Mr. Cobourne argues that convictions occurring prior to the passage of the ADAA can not be considered aggravated felonies for purposes of deportability. Moreover, the BIA decision cites his conviction for 50 pounds of marijuana when, in fact, he was convicted for possession of five pounds. The brief discusses factors used in determining whether 212(c) relief should be granted and the standard for reviewing a BIA decision. The IJ and BIA's use of inappropriate standards in judging factors and their refusal to consider the facts surrounding Mr. Cobourne's conviction constituted an abuse of discretion. Instead of construing Mr. Cobourne's three children with his long-term common law wife as a positive factor, the IJ criticized Mr. Cobourne's family relationships and ignored hardship to his children and partner. Instead the IJ cited "no clear evidence" of rehabilitation, although Mr. Cobourne provided ample evidence of outstanding conduct since his conviction. The IJ's conclusion that Mr. Cobourne would commit future crimes because marijuana use is part of his religious beliefs was not support by any evidence and is irrelevant to the rehabilitation inquiry. The IJ also ignored the petitioner's ability to support his family, finding that his work as a musician, artist, and seller of food and records is "no real employment at all." These conclusions were reversible error.

The IJ also failed to inform Mr. Cobourne of the availability of pro bono services when his prior counsel withdrew and violated several other INS regulations. The BIA erred in ruling that Mr. Cobourne knowingly and intelligently waived his right to counsel under these circumstances. The lack of such a knowing waiver prejudiced Mr. Cobourne and deprived him of due process. An INS motion to remand the case to the BIA for reconsideration based on its mistake that Mr. Cobourne was convicted for 50 pounds of marijuana is pending.
Order No: BB-94-8
42 pp; $10 for NLG and non-profits; $15 for non-NLG

Collins Foods International v. INS
Appellant's Appeal Brief and Reply Brief
9th Cir. (July 1990)
Authors: John B. Frank, Jon E. Pettibone, Kelly J. McDonald

The ALJ ruled that the employer failed to establish a good faith defense because it did not comply with the employer verification requirements of the INA and knowingly hired an unauthorized alien for employment. The appeal brief discusses the standards for good faith compliance with the verification requirement of IRCA. It analyzes constructive knowledge and argues that it cannot be found where the employer examines a document which appears on its face to be genuine. The reply brief provides more in-depth analysis of constructive knowledge and charges that the INS may not base its
argument on reasons beyond those stated by the ALJ in his finding. The INS brief is attached.
Order No: BB-90-14
69 pp: $10 for NLG members and non-profits; $15 for non-members.


Commonwealth v. Mahadeo
Decision
Massachusetts Supreme Judicial Court (April 1986)
Author: Dan Kesselbrenner

A resident alien charged with possession of marijuana with intent to distribute admitted to sufficient facts to warrant a finding of guilty and failed to appeal. He was sentenced without being previously informed that a criminal conviction can have serious immigration consequences for non-citizens, including deportation, exclusion or denial of naturalization. The Massachusetts' court ruled that, although such an admission was not technically the equivalent of a guilty plea, for purposes of the notice requirement , a first tier admission to sufficient facts accompanied by a failure to appeal for a trial de novo is the functional equivalent of a guilty plea. If the state does not prove that the defendant was advised that his plea might impair his immigration status, the presumption is that no notice was given. Defendants need only show that a conviction may have negative immigration consequences; they need not show that any consequence actually resulted or that they would have pleaded differently. The judgment was vacated and the defendant was given the opportunity to withdraw his admission, to plead not guilty and to obtain a trial.
Order No.: BB-86-5
9 pp; $5.00 for NIP members and non-profits; $7.00 for non-members

Cordero-Trejo v. INS
Petitioner's Brief & Decision of the First Circuit
1st Circuit (July 1994)
Authors: Maureen O'Sullivan, Harvey Kaplan, Jeremiah Friedman

The petitioner, a Guatemalan religious worker persecuted for his lay missionary work, challenged the BIA and Immigration Judge's asylum denials as based on lack of understanding of social and political conditions in Guatemala. He argued to the First Circuit that the BIA's denial was not based on substantial evidence and not due extreme deference. He contended that the BIA did not apply the Mogharrabi reasonable person standard but, instead, required him to meet a beyond-a-reasonable-doubt standard. Deference is not warranted where the Board's interpretation conflicts with previous interpretations. The BIA's decision failed the substantial evidence test because it required him to show past persecution and ignored extensive documentary evidence and its own regulations on evidence of persecution of those similarly situated. He articulated his well-founded fear of future persecution by forces the Guatemalan government is unable or unwilling to control, based on membership in a social group and imputed political opinion, and challenged the Immigration Judge's credibility findings, which were rife with factual errors and faulty assumptions.

The First Circuit agreed that the BIA's denial was not supported by substantial evidence; it's adoption of the Immigration Judge's findings and conclusions was unreasonable. The IJ's negative credibility findings were without foundation in the record and the Board's alternative ground for denial relied on this faulty foundation. Moreover, the BIA violated its own regulations by failing to consider evidence of persecution of those similarly situated and of general conditions in Guatemala. Although the court remanded the case to the BIA, it apprised the Board "that we have grave doubts whether a reasonable fact-finder . . .could deny refugee status to Cordero."
Order No.: BB-94-9
46 pp; $10 NLG and non-profits; $15 non-NLG.

Corona-Alvarez v. INS
Petitioner's Memorandum in Response to Motion to Dismiss
9th Circuit (August 1994)
Author: Daniel Levy

Petitioner, a Mexican citizen married to a lawful permanent resident, challenged a final order under INA § 274C on the grounds of insufficiency of notice. INS presented Mr. Corona with the "Civil Document Fraud -- Notice of Intent to Fine" (NIF) along with a series of other documents relating to deportation for entry without inspection. The NIF was in English, which Mr. Corona does not read, and the INS agent who presented it to him failed to inform him that it would result in deportation and permanent exclusion, merely stating that it involved a fine. Mr. Corona further argues that the INS' failure to give him adequate notice amounted to affirmative misconduct that, along with the failure of notice itself, should toll the 60-day time limit for requesting hearings until after he received actual notice by consulting an attorney. Alternatively, he argues that the INS' denial of his requests for hearings are reviewable as denials of motions to reopen. Finally, Mr. Corona argues that the severity of the order's immigration consequences, ambiguous statutory language, and the lack of contrary legislative history all support the court's jurisdiction to hear his appeal, in spite of statutory language describing section 274C orders as "final and unappealable."
Order: BB-94-11
37 pp; $10.00 for NLG and non-profits; $15.00 for non-NLG.