Davila-Bardales v. INS
Petitioner's Brief
1st Cir. (Jan. 1994)
Author: Victoria LewisThe case involves the coerced statement of an unrepresented minor who did not understand his
rights in deportation proceedings or the consequences of his admissions in court. The brief
argues that the BIA violated 8 C.F.R. § 242.16(b), which forbids accepting an admission of
deportability from an unrepresented minor under the age of sixteen and requires a hearing on the issues. The hearing by the immigration judge (IJ) was inadequate because he only asked if the statements in the I-213 were correct. The brief argues that the minor's statements to the INS
officer were not admissible. It discusses previous unpublished BIA cases where admissions by unaccompanied minors were treated as inherently suspect. Additionally, it argues that the BIA's interpretation of the regulation is not entitled to deference because recognized exceptions to the principle of deference apply. It argues that violating a regulation designed to benefit the respondent renders inadmissible the statements obtained in violation of the regulation. The brief also discusses the clear, unequivocal and convincing evidence standard, concluding that the standard was not met because the circumstances surrounding the admissions of the minor were not examined; an unauthenticated I-213 does not satisfy the standard. It analyzes the right to due process and argues that due process requires either that out-of-court admissions of unaccompanied minors be deemed per se inadmissible or that a hearing on the circumstances be held. Finally, the brief argues that it was error to admit evidence obtained in violation of a minor's fifth amendment right to be free from coercion.
Order No.: BB-93-8
60 pp; $10 for NLG and non-profits; $15 for non-NLGDe Gonzalez, in the Matter of
Respondent's Brief
BIA (February 1992)
Author: Steve BlantonRespondent was convicted of two drug offenses. The IJ denied 212(c) relief. the brief argues
that the IJ did not properly conduct the balancing of positive and negative factors; the IJ
apparently ruled that since one of the positive factors did not constitute an unusual or
outstanding equity, he did not have to balance the other positive factors. The brief further argues that the IJ failed to consider the hardship deportation would impose on Respondent and her children and found mitigating factors to hardship that were unsupported by evidence in the
record. The brief additionally that the IJ failed to consider all of the positive factors as required by Matter of Marin. The brief finally argues that the IJ improperly required Respondent to establish rehabilitation as an absolute prerequisite to relief and then erroneously concluded that she had failed to do so, because she maintained that she was unaware of the drug transaction until the time of her arrest. The brief also contends that the record in this case requires a transcript of the testimony in Spanish due to inadequate and incomplete translation by the court interpreter.
Order No.: BB-92-5
26 pp; $10 for NLG and non-profits; $15 for non-NLGDe Jesus Blanco v. INS
Brief for Amicus Curiae
2nd Cir. (July 1994)
Authors: James J. Garrett, Lynn M. Haug and Lucas GuttentagThe amicus brief by the ACLU discusses the significance of a petitioner's status as an ABC
class member where the BIA denied her motion to reopen and remand for purposes of applying for suspension of deportation. The brief reviews the history and development of the ABC litigation and settlement and argues that membership in the ABC class is a relevant factor in weighing her motion to reopen. It further argues that the BIA abused its discretion by relying on consequences flowing from a pre-ABC asylum denial to evaluate the ABC class member's prima facie showing of extreme hardship. The remedies contained in the ABC settlement were based on the presumption that, because of systematic discrimination against Salvadoran and Guatemalan asylum seekers, such denials were neither reliable nor final asylum determinations. Amicus requests that the Circuit Court remand the case to the BIA, instructing it to consider as a factor the ABC settlement, its implementation or membership in the ABC class when exercising discretion over motions to reopen and to not disregard equities acquired after an ABC class member's original asylum denial.
Order No.: BB-94-6
20 pp; $5 for NLG and non-profits; $10 for non-NLG.DeMelo v. Cobb
Brief for Petitioner
Federal District Court for MA (May 1996)
Authors: Judy Rabinovitz and Lucas GuttentagThe brief argues that the mandatory detention provisions of § 440(c) of the AEDPA does not
extend to convictions occurring prior to the date of enactment of the statute. The brief further
argues that the statute cannot be applied to those released from incarceration prior to the date of enactment. The brief raises statutory and constitutional arguments and discusses the principles of statutory interpretation as applied to this statute.
Order No.: BB-96-5
36 pp; $10 for NLG and non-profits; $15 for non-NLGDe Osorio, In the Matter of
Respondent's Brief
BIA (September 1992)
Authors: Lory Rosenberg and Dawn MartinThe brief argues that a pre-ADAA conviction cannot be an aggravated felony nor can the 5 year imprisonment bar to § 212(c) relief be applied because of a strong presumption against
retroactivity in the absence of explicit statutory language to the contrary, a principle which has
been conceded by the BIA in other types of cases. The brief also reviews the history and scope
of 212(c) to demonstrate the broad applicability of the waiver. The brief demonstrates that
Matter of A-A- was wrongly decided as contrary to the language of the statute and the principles of statutory construction.
Order No.: 92-6
20 pp; $5.00 for NIP members and non-profits; $7.00 for non-membersDe Pina, in the Matter of
Brief for Appellant
BIA (1992)
Author: Harvey KaplanThis brief argues that an IJ has jurisdiction to review an application for a waiver to file a joint
petition to remove conditional status when the Regional Service Center Director has rejected
the application as late filed and without good cause for late filing. The brief reviews the history of IMFA and describe the requirements for removal of conditional status. The brief contends that under the regulations, the waiver is not limited to the 90 day window required for the joint petition. The brief also discusses the establishment of jurisdiction and argues that due process requires a hearing. The brief finally argues that the IJ has the same discretion as the Regional Service Center Director once the application has been presented to the RSC.
Order No.: BB-92-12
12 pp; $5 for NLG members and non-profits; $7 for non-membersDiaz-Lainez v. INS
Reply Brief of Petitioner
9th Cir. (December 1987)
Author: Elizabeth ThompsonThis brief addresses whether specific threats made against a respondent by the same political
group which assassinated his brother merely represents a fear of the general level of violence in El Salvador or persecution under the INA. The brief disputes INS arguments that persecution by a guerilla group is not persecution for purposes os asylum and that threats by unknown persons do not constitute persecution. The brief also asserts that the BIA erred in concluding that, in order to show persecution, respondent had to know the reason his brother was killed. The brief rejects the government's argument that respondent suffered no prejudice from his lack of representation at the original hearing. The brief finally argues that the filing period for appeal to the circuit is not jurisdictional, and that the receipt of the appeal by mail one day after the filing deadline caused no prejudice to the government. Moreover, it is a further example of prejudice to the respondent resulting from ineffective assistance of counsel. The brief concludes that respondent may recover attorneys fees under the Equal Access to Justice Act if he prevails in the Court of Appeals.
Order No.: BB-87-34
24 pp; $5 for NLG members and non-profits; $7 for non-membersDiaz-Resendez v. INS
Brief For Petitioner
5th Cir. (March 1991)
Author: Lisa S. BrodyagaThe brief discusses the standard of review, statutory scheme and applicable law for 212(c)
relief. The brief argues that the BIA erred in not finding Respondent's equities outstanding and in holding that he did not demonstrate rehabilitation. The brief further argues that the BIA erred in failing to meaningfully consider all of the evidence and in not articulating the factors
considered. The brief finally applies the facts of the case to the applicable law and concludes
that relief must be granted.
Order No.: BB-90-13
54 pp.: $10 for NLG members and non-profits; $15 for non-membersDoherty v. INS
Brief of Amici Curiae
2nd Cir. (November, 1989)
Authors: Kevin Johnson and Carolyn Patty BlumAmici, 46 members of Congress, argue that by denying Mr. Doherty a full and fair hearing on his asylum and withholding of deportation claims, the Attorney General improperly denied his
request for asylum on discretionary grounds. The AG's extraordinary intervention in Doherty's
case, and his reversal of the BIA's decision are contrary to the purpose of the Refugee Act of
1980. The brief reviews administrative practice in the era of unbridled discretion before the Refugee Act and Congressional intent to reassert its role in establishing eligibility standards for asylum with the passage of the Refugee Act of 1980.
Order No.: BB-89-20
28 pp,: $10 for NLG members and non-profits; $15 for non-membersDominguez-Perez v. Reno
Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief
S.D. Texas (July 1996)
Authors: Mary Kenney, Lynn Coyle and Lisa BrodyagaThis class action was filed on behalf of foreign born U.S. citizens who had pending applications for a Certificate of Citizenship. The complaint charges that defendants' refusal to grant plaintiffs evidence of a right to work in the United States during the pendency of their application deprives them of their rights under the equal protection and due process clauses of the U.S. Constitution. The complaint also charges that defendants have violated the Social Security Act by denying plaintiffs social security cards based on their refusal to accept evidence of U.S. citizenship outside the documents enumerated in 20 C.F.R. 422.107(f).
Order No.: BB-96-8
20pp; $5 for NLG and non-profits; $7 for non-NLGDuane v. Government Employees Insurance Co.
Brief of Amici Curiae: ACLU, MALDEF, Public Citizen
4th Cir. (Aug. 1992)
Authors: Lucas Guttentag and Eileen B. HershenovThe brief addresses whether discrimination against a legal permanent resident who sought
insurance is prohibited by 42 U.S.C. § 1981 which provides that all persons shall have the same right to make and enforce contracts as white citizens. The brief analyzes the statute and argues that the plain language and structure of the statute clearly prohibits private alienage
discrimination. The brief reviews the legislative history of section 1981 and concludes that it
shows congressional intent to include both public and private alienage discrimination. The brief further argues that the reach of the Act was to be coextensive with the 1866 Civil Rights Act, as the identical language in the Acts was deliberately chosen to ensure that the alien protection provisions would be interpreted in the same way as the civil rights bill. It contends that the state action limitations of the equal protection clause and the fourteenth amendment do not apply to the Act. The brief also reviews the legislative history of IRCA and argues that the
anti-discrimination provisions of IRCA supplement the protections of section 1981 and that
Congress was aware that section 1981 had been interpreted to prohibit private alienage
discrimination. The brief argues that the Fifth Circuit's decision in Bhandari limiting section
1981 to public alienage discrimination relied on faulty reasoning and improper policy making. The brief finally argues that the policy of refusing to insure non-citizens has no rational basis.
Order No.: BB-92-26
58 pp; $10 for NLG and non-profits; $15 for non-NLGDuvalierism since Duvalier
Report by the National Coalition for Haitian Refugees and Americas Watch (October 1986)
Author: National Coalition for Haitian RefugeesThis investigation charges that, in the eight months since president Jean-Claude Duvalier was
ousted and the National Governing Council took control of Haiti's destiny, a large gap has
developed between officially stated goals and actual actions of the government. The report finds that the colonels who dominated the current provisional government in Haiti are in the majority Duvalier loyalists and represent no change from the past. The findings in this report indicated that there has been scant progress in halting human rights violations by the security forces, in investigating past abuses and in bringing to trial corrupt officials and military officers responsible for past and present abuses. The report cites the restriction of the press and political parties and the continuation of repressive laws imposed by the Duvaliers as examples of the lack of effort to create an atmosphere conducive to the development of democratic institutions. The report is critical of the U.S. for rushing to give the Duvalier-appointed junta its blessing and to offer it substantial military aid, rather than encouraging an effort to investigate past and current human rights abuses. The U.S. has promoted the forms of democracy - i.e. elections - without significant efforts to promote the democratic institutions required to give substance to the forms.
Order No: BB-86-27
38 pp; $5 for NLG members and non-profits; $10 for non-members