Fano v. O'Neill
Brief for Appellant
5th Cir. (June 1986)
Author: Alan Vomacka

In this appeal from a summary judgment in favor of INS by the District Court in Texas, petitioner Fano had been eligible for permanent resident status as the minor child of a pregnant resident (third preference derivative). His eligibility was jeopardized, however, by the year-end deadline for immigrant visas and, subsequent to passage of this deadline, his reaching the age of majority, thereby disqualifying him for that status. Despite an INS Operating Instruction (OI) which calls for expedited visa processing when a visa number is "urgently needed", INS failed to process his visa. It later ruled Fano ineligible because he was no longer a minor. As a result, while the rest of his family gained permanent residence in the U.S., Fano faces a waiting period of between six and fifteen years before he can live with them legally in this country. INS assurances that Fano will not be deported are ephemeral because they are based on non-binding internal operating procedures.

The Fano brief provides an argument for distinguishing between agency rules that have the force of law and those that serve merely for internal guidance. It distinguishes non-binding OIs from mandatory OIs which create substantive rights and cites decisions in other jurisdictions supporting the contention that, in some circumstances, OIs should bind INS. Fano also charged that INS had not met its burden of proof for winning summary judgment. On January 5, 1987, the Fifth Circuit rejected Fano's assertion that some OIs are binding on INS; it found, instead, that OIs serve only for internal INS guidance. It did agree with the appellant, however, that the government had not shown an absence of genuine issues of material fact, the requisite burden of proof for summary judgment. Fano alleged willful, wanton, reckless and negligent delay on the part of INS in processing his application for permanent residence. He also asserted that INS has a common practice of expediting applications similar to his, suggesting discriminatory treatment by INS. The court found these allegations sufficient to estop the INS from denying permanent resident status. In addition, the court acknowledged the harm to Fano caused by INS delay. Since the government made no affirmative showing negating Fano's claims, summary judgment was premature.
Order No: BB-86-30
28 pp; $10 for NLG members and non-profits; $15 for non-members

Fatin v. INS
Brief of the Amici Curiae
3rd Cir. (October 1992)
Authors: Nancy Kelly, John Willshire-Carrera, Chin-Chin Yeh,
Deborah Anker

The brief was written in support of the asylum claim of an Iranian feminist whose beliefs regarding the role of women are in direct contradiction to the principles of the Iranian government. The brief discusses the phrase "particular social group" as a ground for asylum and argues that gender is a cognizable social group under U.S. and international law. Moreover, a belief in feminism involves a fundamental characteristic which should not be required to change. The brief further discusses the adoption of the Protocol through the Refugee Act of 1980 as interpreted by the courts and the basis in international law for recognizing gender-based persecution. Applying the definition of social group to the facts, the brief argues that a feminist who opposes the laws and social norms imposed by the Iranian government is subject to persecution on account of membership in a particular social group. The brief discusses the imposition of Islamic law in Iran and how that has created the conditions which the appellant opposes and under which she would be persecuted. Women who are feminists would be persecuted in Iran on account of membership in a particular social group.
Order No: BB-92-22
46pp; $10 for NLG members and non-profits; $15 for non-members

Fields-Lee v. INS
(d) Brief in Support of Petitioner by Amici Curiae, AILA, AILF, National Immigration Project
2nd Cir. (April 1992)
Authors: Rhonda Berkower, Lory Rosenburg, Harvey Kaplan, Dan Kanstroom, Monica Conyngham, George Lester

The Fields-Lee brief argues that the Board's denial of section 212(c) eligibility to long-time lawful permanent residents convicted of unlawful possession of a firearm is contrary to Congressional intent, violates equal protection and is inconsistent with administrative precedent. The brief attempts to distinguish the First Circuit's decision in Campos and argues that under the Board's most recent articulation of the comparable ground test for determining 212(c) eligibility in deportation proceedings in Matter of Meza, the former section 212(a)(10) multiple conviction ground of exclusion is analogous to the multiple deportation ground which form the basis of Petitioner's deportability. Since the precise language of the statute does not bar section 212(c) relief to those convicted of unlawful possession of a firearm, were Petitioner seeking to re-enter the United States he would be eligible to apply for a waiver of all of the convictions which form the basis of his deportability as charged, including the firearm possession offenses. Thus, Petitioner is in the same position as the alien in Francis, and a distinction based on whether he travelled outside the United States is fortuitous, arbitrary and irrelevant to any legitimate government interest. See Campos v. INS.
Order No.: BB-91-1
51 pp; $10 for NLF and non-profits; $15 for non-members

Flores et al. v. Meese
Opposition to Federal Defendant's Motion for Partial Summary Judgement
C.D.CA. (March 1986)
Author: Carlos Holguin

This class action challenges INS policy to condition juveniles' right to release on bond upon their parents' or legal guardians' presence in the U.S. and willingness to personally appear before INS agents for interrogation concerning their immigration status in the U.S. Plaintiffs also challenge the procedures employed by INS in imposing this condition on juveniles' freedom and seek to improve the conditions existing in facilities where juveniles are incarcerated. The brief argues that section 242 of the Immigration Act does not authorize the INS to issue a blanket prohibition against release of minors except upon the appearance of a parent or legal guardian, that the bond release policy is illegal because it was not promulgated pursuant to the Administrative Procedures Act, that the policy deprives plaintiffs of substantive due process, and the bond condition denies children equal protection of the law. In addition, plaintiffs charge that INS fails to provide educational instruction and reading materials, does not permit reasonable visitation conditions, commingles children with unrelated adults, and strip searches the children without cause.
Order No: BB-86-20
90 pp; $20 for NLG and non-profits; $25 for non-members

Francisco-Sanchez, In the Matter of
EOIR, New York (Nov. 1989)

Immigration Service Memorandum of Law on Deportability of a Permanent Resident Alien Who Has Been Convicted of an Aggravated Felony and Has No Relief from Deportation Notwithstanding More Than Seven Years of Lawful Domicile.
Order no.: BB-89-13
33 pp; $10 for NLG members and non-profits; $15 for non-members

Fuentes and Hernandez, in the Matter of
Brief for Appellants
5th Cir. (October 1988)
Author: Lisa S. Brodyaga

This is an appeal of a district court decision, ordering appellants to testify against themselves in deportation proceedings. The brief discusses the scope and jurisdictional issues under 8 USC §1225(a) and shows that the district court lacked jurisdiction under this statute. Moreover, federal courts have no inherent jurisdiction to enforce administrative orders. The brief further contends that the use of involuntary admissions in deportation proceedings violates the due process clause and the fifth amendment privilege against self-incrimination. It discusses the governmental abuses involved in the arrest and detention of the appellants and argues that INS placed them in deportation
proceedings in retaliation for exercising their right to remain silent, without establishing a prima facie case for deportability, a pre-requisite for instituting deportation proceedings.
Order No.: BB-88-19
57 pp; $10 for NLG members and non-profits; $15 for non-members