Elizondo-Garza v. INS
Brief for Petitioner
5th Cir. (November 1995)
Author: Lisa Brodyaga

This is a brief to the Fifth Circuit challenging the BIA's denial of a § 212(c) application. The brief reviews the applicable law for 212(c) cases. The brief also discusses credibility determinations and distinguishes between deference to a finding based on demeanor and a finding based on content. It is also argued that the Board must exercise independent judgment and not merely defer to the findings of the immigration judge. The brief finally discusses the role of rehabilitation in 212(c) determinations.
Order No.: BB-95-4
54pp; $10 for NLG and non-profits; $15 for non-NLG

El Rescate Legal Services, Inc., et al. v. EOIR et al.
(a) Plaintiff's Memorandum of Points and Authorities in Support of Motion for Summary Judgment
C.D.CA. (November 1989)
Authors: Sandra Pettit, Francisco Garcia Rodriguez, Nancy Cowen, Michael Ortiz amd Darline Alvarez
(b) Amicus Curiae Brief
9th Cir. (August 1989)
Author: Maureen B. Callahan

(a) Plaintiffs' motion was based on the failure of EOIR to provide complete interpretation of immigration court proceedings. Plaintiffs' memorandum argues that it is EOIR's policy and practice not to interpret significant portions of the hearing that the failure to provide complete interpretation of the proceedings violates the due process clause of the constitution and the INA and analyzes the criteria for both. The district court granted the plaintiffs' motion.

(b) The Amicus brief argues that the granting of partial summary judgement to the plaintiffs, regarding the failure of EOIR to provide complete interpretation in immigration proceedings, was correct. The brief discusses the Supreme Court's decision in Chevron USA, Inc. v. NRDC, which restated the rule that courts will generally defer to an agency's interpretation of a federal statute. The brief argues that Chevron is irrelevant because EOIR is not relying on an interpretation of any statute in setting its translation policy and the policy in inappropriate because it is contrary to the holding in Cardoza-Fonseca and to express provisions in the INA. The brief also analyzes the effect of Cardoza-Fonseca on the Chevron principles. The brief additionally argues that deference is improper where the agency position is contrary to the clear Congressional intent to provide procedural safeguards in deportation and exclusion proceedings. The brief finally argues that plaintiffs were entitled to proceed under the judicial review procedures of the Administrative Procedure Act, discussing the applicability of the APA to immigration proceedings.
Order No.: BB-89-24
(a) 97 pp; $15 for NLG members and non-profits; $20 for non-members
(b) 26 pp; $10 for NLG members and non-profits; $15 for non-members

Emile v. INS
Motion to Reopen and Reconsider and to Terminate Deportation Proceedings
BIA (October 1991)
Author: Rhonda Berkower

Respondent was convicted of possession of cocaine. The conviction was vacated by the state court because the defendant had not received the required warning regarding immigration consequences of a guilty plea. The judge wrote "allowed" on defendant's motion. The INS argued that this was not an official court document and that the state court had failed to order a new trial. The IJ agreed. Respondent then submitted the docket sheet showing that the conviction was vacated. The IJ stated that the docket indicated the defendant had entered a plea of not guilty and was found guilty after a trial, so that the warning was not required and the court had no jurisdiction to grant the motion. He therefore refused to terminate proceedings. The BIA upheld the decision of the IJ and failed to address the issue of the state court's jurisdiction to vacate. The brief argues that all material evidence regarding the vacation of the conviction must be considered. Because the BIA failed to do so, deportability cannot be established. The brief argues that the vacation was valid and must be given full faith and credit; the INS has the burden of proving the court lacked jurisdiction to vacate by convincing and affirmative evidence. The brief discusses the limits of inquiry into the jurisdiction of the court to enter an order. The IJ cannot attack the factual findings of the court. The brief also argues that the statute does not require a new trial and, therefore, failure to hold one does not invalidate jurisdiction to vacate. Vacation is not an expungement and is valid for immigration purposes. The brief to the first circuit, moving that the court to hold the petition for review in abeyance pending the BIA's decision on the motion to reopen is attached.
Order No: BB-91-7
27 pp: $10 for NLG members and non-profits; $15 for non-members

Equal Employment Opportunity Commission (EEOC) v. Tortilleria "La Mejor"
(a) Defendant's Motion to Dismiss
(b) Amici-Curiae Brief in Opposition to Motion to Dismiss
(c) EEOC's Opposition to Motion for More Definite Statement and Motion to Dismiss
EDCA (1987-1988)
Author: Francisco Cancino

This is a suit by the EEOC against an employer who refused to rehire an undocumented worker after a pregnancy leave in 1985. The defendant's motion to dismiss claims that IRCA modified the definition of "employees" protected by the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 to exclude undocumented workers. Citing the post-IRCA case, In Re Reyes, 814 F.2d 168 (5th Cir. 1987) the EEOC argues that undocumented workers are employees and individuals within the plain meaning of the definition of Title VII and that EEOC's construction has been consistent with Title VII protection of undocumented workers. The EEOC also argues that Congress expressly stated its intent to maintain existing labor standards protection in IRCA, that immigration policy and labor law protection of undocumented workers do not conflict, and that labor standards laws involving sanctions for employers of undocumented workers nevertheless protect the undocumented.
Amici, who include the International Ladies' Garment Workers' Union, the Service Employees International Union, the ACLU and the ACLU of Northern California, and the Mexican-American Legal Defense & Education Fund, argue that Congress intended to maintain in effect Title VII and the court cases upholding the coverage of undocumented workers. Amici also argue that great deference should be given to EEOC's consistent construction of Title VII as protecting undocumented workers from unlawful discrimination. Finally, their brief analyzes the legislative purposes of Title VII and IRCA to prove that Congress intended to maintain Title VII coverage for undocumented workers.
Order no.: BB-87-22
(a) 9 pp; $5 for NLG and non-profits; $7 for non-NLG
(b) 23 pp; $5 for NLG and non-profits; $7 for non-NLG
(c) 38 pp; $16 for NLG and non-profits; $15 for non-members

Eskite v. District Director
Memorandum in Support of Petitioner's Application for a Writ of Habeas Corpus
E.D.N.Y. (June 1994)
Author: Douglas Baruch

Petitioner argues that the BIA's retroactive application of the statutory bar to asylum for aggravated felons contradicts the Supreme Court's recent Landgraf decision. The memorandum analyzes the statutory scheme and argues that a conviction predating the passage of the Anti-Drug Abuse Act of 1988 does not bar eligibility for asylum because Congressional silence or ambiguity regarding a statute's applicability mandates a prospective application. Moreover, Mr. Eskite's full and unconditional pardon removes the aggravated felony bar to applying for asylum and withholding of deportation, negating the deportation and other consequences of his drug conviction. Petitioner also argues that a drug conviction does not constitute a per se bar to eligibility for asylum and withholding of deportation absent its classification as an aggravated felony and that the BIA should have made a separate inquiry into danger to the community before ruling that conviction for a particularly serious crime precludes eligibility for withholding of deportation. Finally, he argues that INS should be estopped from barring him from applying for asylum and withholding of deportation and deporting him to Haiti because of its affirmative missconduct in detaining him indefinitely on Guantanamo Bay until this court ordered INS to bring him to the United States.
Order No.: BB-94-5
35 pp; $10 for NLG and non-profits; $15 for non-NLG

Estay-Wolleter v. INS
Memorandum in Support of Motion for Stay of Deportation
9th Cir. (July 1992)
Authors: Nancy-Jo Merritt, Charles H. Kuck

Petitioner requested a stay of deportation upon appeal to the circuit court of the BIA's finding that he was deportable as an aggravated felon. The motion argues that four serious and novel issues raised by the appeal establish the petitioner's eligibility for the stay. The BIA held that imprisonment for more than five years bars relief under section 212(c) regardless of when the conviction occurred. The brief argues that, since IMMACT90 and the Miscellaneous and Technical Amendments (MTINA) did not change the effective date or retroactivity of 212(c), the five-year bar does not apply to a conviction prior to the Anti-Drug Abuse Act of 1988. The BIA's inconsistent interpretation of retroactivity should be given no deference. In addition, the BIA's extension of the 212(c) bar to applications for relief in deportation proceedings is incorrect; the five-year bar applies only to an "admission" after Nov. 29, 1990, caused by a physical entry into the United States with permission. Finally, the brief argues that the BIA's decision in Matter of A-A- violates both statutory construction and due process because it holds that an application for 212(c) relief is "continuing" and that, therefore, an applicant loses eligibility when five years elapses, regardless of the cause of the delay in the final resolution of the case. The Ninth Circuit granted the stay.
Order No.: BB-92-19
19pp; $5 for NLG and non-profits; $7 for non-NLG