Brief Archive (1997
and earlier)
Note: This page
provides abstracts only. Hardcopies of complete briefs are available for a
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Annotated Links (Briefs by Alphabetical Order)
firm resettlement
persecution and prosecution
religious
standard of proof
well-founded fear of persecution
conditional permanent residence
marriage
212(c)
AEDPA
retroactivity
bias
brief departure
federal detention center at Oakdale, LA
due process
Fleuti
judicial temperament
Aggravated Felonies and Withholding of Deportation
aggravated felony
international law
withholding of deportation
asylum
credibility determination
habeas corpus
well-founded fear of persecution
212(c) evidence
deportability
drug conviction
motion to reopen
standards for 243(h)
waiver
advance parole
continuous residence
suspension of deportation
appellate procedure
failure to file brief
summary dismissal
marriage to a U.S. citizen
factor in deportation proceedings
rehabilitation
waiver
212(c)
fifth amendment
Marriage Fraud Amendment
two year foreign residency requirement
constitutional issues
presumption of marriage fraud
procedural due process
right to hearing
Alvarado Guevara et al. v. INS
detention
INS employment practices
INS detainees
Fair Labor Standards Act (FLSA)
labor law
minimum wage
undocumented workers in detention
statutory construction
appellate procedures
extensions
discretion
denial of extension
ineffective assistance of counsel
Alvarez-Velasquez, in the Matter of
misprison of felony
entry without inspection
Amanullah and Wahidullah v. Cobb
Afghanistan
exclusion
country of embarkation
first asylum
habeas corpus
asylum
denial of asylum
non-refoulement
prolonged detention
discretion
standards for parole
fifth amendment
motion to reopen
permanent residence deportability
Palestinian
well-founded fear of persecution
imputed political opinion
persecution acts of war
in absentia
deportation procedures
appellate review
standards for rehearing en banc
well-founded fear of persecution
Sri Lanka
asylum
Asylum Based of Opposition to PRC Reproductive Policies
day laborer
gender-based persecution
family planning
forced sterilization
Avila-Lituma, in the Matter of
counsel
detention
due process
amicus
Bivens actions
damage actions
fourth amendment
Operation Jobs
search and seizure
battered spouse - manslaughter in self-defense
withholding of deportation
particularly serious crimes
Equal Access to Justice Act (EAJA)
standard of review
rehabilitation
sec. 212(c) denial
independent judgment
complaint
class action
refugee
declaratory
class certification
civil procedure
injunction
immediate relative
international law
waiver
sec. 212(c)
motion for change of venue
denial of change of venue
imputed political opinion
persecution vs. prosecution
habeas corpus
temporary restraining order (TRO)
Bravo-Sanchez, in the Matter of
res judicata
marriage fraud
domestic violence
Camacho Perez, in the Matter of
bond, detemination of
detention
revocation of prior release
stay of deportation
pre-ADAA conviction
aggravated felony
denial of political asylum
Refugee Act
waiver
sec. 212(c), no comparable ground
Caņas-Segovia and Caņas-Segovia, In the Matter of
conscientious objection
imputed political opinion
neutrality
well-founded fear of persecution
religious
Cardoza-Fonseca, Motion for Reconsideration
standards for asylum
effect on asylum cases
motions
reconsideration
Catholic Services for Immigrants v. Barr
temporary restraining order
legal representation
credibility determination
well-founded fear of persecution
exclusion of evidence
standard of proof
confidentiality
motion to terminate
amici curiae
212(c)
waiver
remorse
morals
Collins Foods International v. INS
IRCA
verification requirement
crimes
state advisals
voluntariness of pleas
asylum
Guatemala
religion
274C
appeals
jurisdiction
minors
contesting deportability
burden of proof
controlled substance violation
aggravated felony
drug conviction
212(c)
hardship
suspension of deportation
ABC
unlawful detention
abuse of discretion
AEDPA
retroactivity
due process
waiver
sec. 212(c)
aggravated felony
jurisdiction
conditional residence
appellate procedure
timeliness
attorneys fees
asylum cases
ineffective assistance of counsel
right to counsel
Equal Access to Justice Act (EAJA)
well-founded fear of persecution
waiver
sec. 212(c)
asylum
U.S. discriminatory policies
asylum discretion
motion to reopen
Refugee Act
legislative history
statutory construction
withholding of deportation
habeas
work authorization
Social Security
Duane v. Government Employees Insurance Co
private alienage discrimination
IRCA
Haiti
conditions
rehabilitation
sec. 212(c)
motion to reopen
credibility
demeanor
El Rescate Legal Services, Inc., et al. v. EOIR et al.
deference
agency interpretation
translation
immigration court proceedings
vacation of conviction
valid for immigration purposes
motion to reopen
terminate exclusion proceedings
Equal Employment Opportunity Commission (EEOC) v. Tortilleria "La Mejor"
deference
labor law
protection under Title VII
statutory construction
protections for undocumented workers
appellate review
IRCA
pardon
aggravated felony
habeas
stay of deportation
aggravated felony
minor
force of Operations Instructions
third preference
gender-based persecution
women
political asylum
waiver
sec. 212(c)
Administrative Procedures Act (APA)
bond
detention of minors
Francisco-Sanchez, in the Matter of
aggravated felony
drug conviction
deportability
waiver
sec. 212(c)
Fuentes and Hernandez, in the Matter of
fifth amendment
sexual orientation
gender-based persecution
social group persecution
Administrative Procedures Act
employment authorization
Equal Access of Justice Act (EAJA)
entry
burden of proof
excludability
statutory construction
waiver
sec. 212(c)
retroactivity
Gonzalez-Caro, in the Matter of
crimes of moral turpitude
waiver
sec. 212(h)
good moral character
Granados-Garcia, In the Matter of
political asylum
motion to reopen, appeal of denial
Guatemala, conditions
Kanjobal Indians
Guatemalan Kanjobal Asylum Applicants
well-founded fear of persecution
social group
indigenous peoples
sec. 274C
document fraud
appeals
waiver
rehabilitation
sec. 212(c)
standard to obtain injunctive relief
IRCA
SAW program -- eligibility standard
Haitian Refugee Center v. Nelson
exclusion of evidence
jurisdiction
exhaustion
SAWS (Special Agricultural Workers)
appeals
application procedure, problems with
Family Unity status
employment authorization
Hernandez-Casillas, In the Matter of
waiver
comparable exclusion
sec. 212(c) available in deportation
casual and innocent absence
Fleuti doctrine
IRCA
continuous residence
temporary residence status
statutory requirements
Honduran Battered Woman, Matter of
sexual orientation
gender-based persecution
domestic violence
Guatemala, conditions
Human Rights Situation and Fundamental Liberties in El Salvador
El Salvador, conditions
Ibarra and Esparza v. Texas Employment Commission
PRUCOL applicants
unemployment benefits eligibility
aggravated felony
drug conviction
waiver
sec. 212(c)
standard for asylum
international law
refugees
well-founded fear of persecution
clear probability of persecution
standards for persecution
standards for withholding of deportation
employer sanctions
subpoena
statutory construction
subpoena authority in employer sanctions
deference
habeas corpus
Afghanistan
asylum
credibility determination
well-founded fear of persecution
evidence
suspension of deportation
motion to reopen
extreme hardship
entry doctrine
Fleuti doctrine
burden of proof
alienage
deportability
competency
deportation proceedings
illegally obtained evidence
fifth amendment
Juandique-Carcamo, In the Matter of
burden of proof
well-founded fear of persecution
asylum discretion
evidence
imputed political opinion
standard of proof
entry doctrine, related to adjustment of status
Fleuti doctrine
fraud
adjustment of status
discretion
asylum
imputed political opinion
well-founded fear of persecution
social group
Sri Lanka
asylum
female genital mutilation
asylum
Togo
persecution
statutory construction
withholding of deportation
particularly serious crimes
well-founded fear of persecution
political opinion
rape as persecution
standard for rehearing en banc
Letitia "A" et al. v. Board of Regents of the University of California et al.
attorneys fees
California state law
undocumented immigrants
benefits eligibility
educational benefits
retroactivity
due process clause
separation of powers under Article III
judicial review
Libya
conditions
withholding of deportation
"LPR in Oakdale", In the Matter of
change of venue
right to continuance
due process
neutrality
standards for rehearing en banc
standards for appellate review
conscientious objection
discretion
asylum
conditions in El Salvador
well-founded fear of persecution
persecution of others
imputed political opinion
neutrality
well-founded fear of persecution
motions for change of venue
denial of change of venue
in absentia
Refugee Act of 1980
motion to change venue
Refugee Act of 1980
in absentia hearing
Marriage Fraud Act Preclusion, Appeal of
evidence
documentation
conditional residence
fraud
burden of proof
effective date for Marriage Fraud Amendment
immediate relative
spouse
marriage petition
separation
Marroquin de Sandoval, In the Matter of
credibility determination
well-founded fear of persecution
discretion
asylum
evidence
Guatemala
political opinion
voluntary departure
McNary v. Haitian Refugee Center
jurisdiction
review of SAW program
attorneys fees
Equal Access to Justice Act (EAJA)
fees for litigation
Equal Access to Justice Act (EAJA), access to
Melendez-Corea, In the Matter of
imputed political opinion
well-founded fear of persecution
social group (trade union)
Mendez-Juarez, in the Matter of
ABC settlement
imputed political opinion
neutrality
well-founded fear of persecution
citizenship, derivative
Ozkok decision, challenged
BIA abused its discretion
attorneys fees
Equal Access to Justice Act
crimes of moral turpitude
single scheme
firm resettlement
well-founded fear of persecution
conditions in South Africa
asylum
Mungai et al, in the Matter of
detention
standards for release
evidence
in camera review
LA eight
Palestinians
standards for national security risk
burden of proof
on account of political opinion
Name Withheld, In the Matter of
standards for withholding of deportatin
standards for asylum
Libya
well-founded fear of persecution
burden of proof
standard of proof
Navarro-Pineda et al., In the Matter of
discretion
asylum
immigration judge
persecution of others
imputed by association
well-founded fear of persecution
political opinion
Nunez De Elizondo, in the Matter of
deportability
sec. 241(a)(2)(c)
firearms
sec. 212(c) eligibility
motion to reopen
lawful domicile
Olivares Cruz, in the Matter of
ABC
administrative closure
possessory offenses
aggravated felony
deportability
drug conviction
Orellano-Serrano, in the Matter of
special immigrant
foster care
Texas
standards for asylum
credibility determination
well-founded fear of persecution
BHRHA letter
rebuttal
conditions in Lebanon
well-founded fear of persecution
standard of proof
counsel, ineffective assistance
habeas corpus
judicial review
jurisdiction
subject matter
motion for stay
stay of deportation
possession of a firearm
Fair Labor Standards Act (FLSA)
IRCA
statutory construction
protection for undocumented immigrants
voluntary departure
suspension of deportation
civil procedure
deference
discretion
voluntary departure
exclusion of evidence
standard of review
exclusion of testimony
Perez-Arellano, In the Matter of
SAWS (Special Agricultural Workers)
appeals
temporary residence status
waiver
Sec. 212(a)(17)
Perez-Hernandez, in the Matter of
minors
contesting deportability
evidence
I-213
Perez-Puentes, In the Matter of
jurisdiction
standing
in absentia
improper notice of hearing
Pierre, in the Matter of Psychological Evaluation
Haiti, conditions
motion to reopen
asylum
evidence
motion to suppress
credibility determination
well-founded fear of persecution
fraud
entry with altered documents
persecution vs. prosecution
Sri Lanka
asylum
right to present evidence
exclusion of evidence
Freedom of Information Act
Haiti, conditions
Haiti, fate of deportees
Rebuttal of BHRHA Opinion on the Intergovernmental Committee for Migration's Program in El Salvador
rebuttal of BHRHA letter
conditions in El Salvador
Intergovernmental Committee for Migration
report of El Salvador
refugee status
refugee status
relinquishment of LPR
waiver
Sec. 212(c)
judicial review
due process
separation of powers
motions to suppress evidence
illegally obtained evidence
inadmissible statements of minors
unrepresented minors
waiver
Sec. 212(c), no comparable ground
complaint
mandamus
class action
civil enforcement
sting
class certification
civil procedure
Notice of Intent to Fine (NIF)
writ of mandamus
Romero-Mendoza, In the Matter of
rehabilitation
favorable grounds for relief
discretion
asylum
negative factors
firm resettlement
appellate review
abuse of discretion
conditions in El Salvador
smugglers
statutory construction
asylum law
smugglers
asylum
El Salvador
continuance
right to due process
right to counsel
in absentia
improper notice of hearing
Salvadoran Deserter, in the Matter of
conditions
El Salvador
international law
El Salvadoran military
military desertion
well-founded fear of persecution
imputed political opinion
right to discovery
evidence
continue
deportation proceedings
terminate deportation proceedings
witness's statements and reports
abuse of authority
Border Patrol
assault and battery
Bivens action
damage actions
Federal Tort Claims Act (applied to assault and battery)
fifth amendment
fourth amendment
inadmissibility
good moral character
asylum
persecution vs. prosecution
Sikh
solicitation
statutory construction
AEDPA
INS brief to A.G.
212(c)
retroactivity
Attorney General
Soviet Jew Asylum Applicant, in the Matter of
Lautenberg Amendment -- Soviet Jew
equal protection clause
asylum
exclusion
political grounds
persecution of others
persecution vs. prosecution
well-founded fear of persecution
political opinion
standards for withholding of deportation
Sun Moon Star Advanced Power Inc. v. Chappell
statutory construction
labor certification
standards for summary dismissal
motion to reopen
burden of proof
alienage
deportability
coercion of evidence
subpoena
motion to suppress
fifth amendment
privilege against self-incrimination
immunity
motions to terminate proceedings
El Salvador
conditions
burden of proof
well-founded fear of persecution
country-wide persecution
credibility determination
conditions in Guatemala
neutrality
waiver
Sec. 212(c)
late appeal
Urquijo Serrano, In the Matter of
burden of proof
drug trafficking
crimes
first offender
rehabilitation
waiver
sec. 212(c)
ineffective assistance of counsel
post conviction relief
coram nobis
right to counsel
criminal procedure
illegally obtained evidence
hearsay
motion to suppress
right to present
conviction for smuggling
collateral attack
deportation order
right to counsel
illegal re-entry following deportation
Valencia, et al. v. Lyng, et al.
injunctive relief, standard to obtain
IRCA
SAW program
exclusion
cotton field worker
statutory construction
appeals
summary dismissal
appellate procedure
failure to file brief
imputed political opinion
minors
neutrality
well-founded fear of persecution
religious
military recruiting in El Salvador
Refugee Act of 1980
persecution
Vishteh et al. v. Nelson et al.
right to counsel
detention
discretion
parole
eighth amendment
cruel and unusual punishment
non-refoulement
"Withholding of Deportation for Aggravated Felon", In Re
aggravated felony, definition of
deportability
drug conviction
standards for withholding of deportation
standards for asylum
conviction
deportability
criminal conduct
marijuana
possession of less than 30 grams
Ozkok
conviction defined
well-founded fear of persecution
waiver
Abbay, in the Matter of
Respondent's Brief
BIA (December 1988)
Author: Lory RosenbergThis brief discusses the standards of proof to be applied in asylum and withholding cases and analyzes the persecution of respondent under the standards set forth in Acosta. It argues that the Immigration Judge improperly held that since some churches were tolerated in Ethiopia, respondent did not establish persecution on account of religion. The judge erred in characterizing respondent's two incarcerations as no proof of persecution. The brief also contrasts the difference between persecution and prosecution to show respondent was imprisoned because he held unpopular religious beliefs. The brief discusses credibility findings and argues that the Immigration Judge erred in ruling that testimony which supports respondent's claim of asylum is not credible and impermissibly treated respondent's flight through a third country in which he did not apply for asylum as an adverse factor. The brief discusses the factors to consider in determining whether a refugee has firmly resettled in another country. Finally, it argues that the circumvention of orderly refugee procedures is an insufficient basis for a discretionary denial of asylum.
Order No.: BB-88-15
40 pp; $10 for NLG members and non-profits; $15 for non-members
Acosta Modesto, in the Matter of
Respondent's Brief
BIA (September 1992)
Author: Harvey KaplanThe case challenges the immigration judge's denial of a waiver of the joint petition requirements for removing of the conditional basis for permanent residence. The immigration judge concluded that there was not a sufficient level of commitment in the marriage. The brief reviews the requirements for a waiver and argues that the immigration judge applied an incorrect standard in considering whether the marriage was entered into in good faith. It details the legal requirements for a good faith marriage and argues that the immigration judge substituted his own moral judgments for the requirements of the law. The brief further argues that the judge's failure to meaningfully evaluate the evidence in the record is a violation of due process.
Order No: BB-92-24
24pp: $10 for NLG members and non-profits; $15 for non-members
AEDPA and 212(c)
Amici Curiae Brief
BIA (May 1996)
Author: Nadine WettsteinThis brief was filed by AILA and the NATIONAL IMMIGRATION PROJECT at the request of the BIA. It discusses the effects of the AEDPA on § 212(c) relief. 1The brief argues that the temporal reach of § 440(d) of the AEDPA does not extend to conduct occurring prior to the date of enactment of the statute and raises several arguments in support of that contention. The brief also argues that the Board is bound to follow the two-part approach set out in Landgraf and analyzes § 440(d) of the AEDPA in light of that approach. The brief also discusses constitutional and other legal implications of a retroactive application of the statute. The brief further argues that the statute does not apply to individuals in exclusion proceedings and therefore, denying relief to individuals in deportation proceedings violates the Equal Protection clause of the Fifth Amendment. In addition, the brief argues that the Attorney General's ruling in Hernandez-Casillas upholding the equal application of § 212(c) in deportation and exclusion proceedings controls the Board's resolution of this question. The brief raises several other arguments in opposition to applying the statute to pending cases.
Order No.: BB-96-3
44 pp; $10 for NLG and non-profits; $15 for non-NLG
Aggravated Felonies and Withholding of Deportation
Amici Curiae Brief
BIA (May 1996)
Author: Dan KesselbrennerThis brief, filed by AILA at the BIA's request, was written by Amy M. Nice. It discusses the bar to withholding of deportation to aggravated felons in light of § 413(f) of the AEDPA. The brief discusses the law governing the right of refugees to withholding and the implementation of the protocol under United States law. The brief reviews the rules of statutory interpretation and argues that the new provision compels a conclusion that Congress meant to void the absolute bar to withholding. The brief further argues that the Protocol requires an individualized determination of the right to withholding and that Congress has expressed its intent not to abrogate U.S. treaty obligations. The brief finally argues that the absolute bar violates due process because it fails to provide for an individualized determination of a right to withholding.
Order No.: BB-96-6
48 pp; $10 for NLG and non-profits; $15 for non-NLG
Agbai Agbai, in the Matter of
Supplementary Brief On Appeal
BIA (May 1993)
Author: AILFThis brief discusses the proper role of the immigration judge in proceedings. The brief challenges the fairness of the hearing where the immigration judge assumes an investigatory and prosecutory function. The immigration judge conducted an investigation to locate an INS officer whom neither party had called as a witness. The brief argues that the IJ crossed the line of impartiality and assumed the role of investigator, thus forfeiting his impartiality. The brief also argues that an IJ compromises his impartiality when he engages in extensive cross examination. It analyzes the requirement of an impartial adjudicator, arguing that recusal is appropriate when the IJ is unable to conduct an impartial hearing. The brief also analyzes the Fleuti doctrine in arguing that the applicant was improperly placed in exclusion proceedings.
Order No.: BB-93-12
28pp; $10 for NLG and non-profits; $15 for non-NLG
Ahmad v. Russell
Decision
D. Colo. (March 1989)
Author: Nancy ElkindFollowing a denial of political asylum by an Immigration Judge and the BIA, petitioner filed a Petition for a Writ of Habeas Corpus in federal district court. The district court held that it had the power under 28 USC §2243 to hold evidentiary hearings and review INS decisions de novo in the context of a hearing on a petition for a writ of habeas corpus. The court found that the denial was not based on substantial evidence and disputed the IJ's finding that petitioner lacked credibility. It granted the writ of habeas corpus and also granted asylum to the petitioner.
Order No.: BB-89-2
16 pp; $5 for NLG members and non-profits; $7 for non-members.
Akrap v. INS
(a) Petitioner's Brief
(b) Reply Brief 7th Cir. (January 1992)
(c) Motion to Reopen and Memorandum in Support BIA (April 1992)
Author: Mary Sfasciotti(a) Petitioner, a native of Yugoslavia, was convicted of five counts of a drug offense. His application for 212(c) relief was denied as a matter of discretion. Following the denial of his appeal by the BIA, Petitioner filed a motion to reopen based on newly discovered evidence and for asylum based on the war between Serbia and Croatia. The BIA denied the motion on the ground that he was statutorily ineligible because his lawful domicile terminated when the BIA denied the appeal. The Board also ruled he was ineligible for asylum because he was convicted of an aggravated felony.
(b) The brief argues that Petitioner's LPR status did not terminate with the BIA's denial and reviews and distinguishes the cases which define when the seven years of domicile to establish eligibility for relief must be accrued. It also argues that the requirements for eligibility for a motion to reopen were satisfied and that the BIA's refusal to consider the motion impinges on the doctrine of the exhaustion of administrative remedies. Finally, Petitioner argues that he is not an aggravated felon because his conviction was prior to the passage of the Anti-Drug Abuse Act of 1988. The reply brief argues that the appeals court had jurisdiction to rule on the motion to reopen denied subsequent to the filing of the petition for review.
(c) The motion requests that Respondent be permitted to change the designation of the country of deportation from Yugoslavia to Croatia and requests Respondent be allowed to introduce new evidence in connection with an application for 212(c) relief denied by the BIA. The memorandum analyzes Section 243(a) regarding designation of country of deportation and argues that United States recognition that Croatia is a separate country from its avowed enemy, Serbian Yugoslavia, mandates a new designation. The brief also challenges the Board's decision that eligibility for 212(c) relief ceased when it denied relief of the original appeal.
Order No.: BB-92-2
(a) 60 pp; $10 for NLG members and non-profit; $15 for non-members
(b) 30 pp; $10 for NLG members and non-profit; $15 for non-members
(c) 107 pp; $20 for NLG members and non-profits; $25 for non- members
Al-Kilani v. Barr
Appellant's Brief
9th Cir. (Oct. 1992)
Authors: Donald L. Ungar, Terry J. HelbushThe case involved the procedures followed by INS in adjudicating visa petitions filed by U.S. citizens (USC) on behalf of immigrant spouses. The issue before the court concerned procedures to be followed in cases where the INS suspects a previous marriage of the alien spouse was a sham marriage to obtain immigration benefits. Such a sham marriage would bar the approval of a subsequent spousal petition under section 204(c) of the Act. INS had coerced a statement from the alien spouse regarding the first marriage when he applied to extend his employment authorization during the pendency of his adjustment application. The USC argued that she was entitled to an impartial evidentiary hearing on the validity of the first marriage with the burden on the INS to prove it was a sham marriage. The brief distinguishes between procedural due process rights and the right to decide who may enter the United States; procedural due process rights allow a heightened scrutiny of government restrictions. The brief discusses the due process factors described in Mathews v. Eldridge and applies them to this case, arguing that the burden should be on the INS to prove by clear, unequivocal and convincing evidence in a hearing that it may revoke an approved petition because it is trying to deprive a USC of a legally protected interest in her marriage. The brief finally argues that revoking the petition was an abuse of discretion because it departed from precedent and ignored favorable evidence.
Order No.: BB-92-27
32 pp; $10 for NLG and non-profits; $15 for non-NLGAlleyne v. INS
(a)Petitioner's Brief
(b) Petitioner's Reply Brief
1st Cir. (May 1988)
(c) Motion to the BIA to Reopen and Reconsider and to Remand to the Immigration Judge with Memorandum of Law
BIA (August 1988)
Author: Lory RosenbergThe brief discusses the statutory scheme for relief from deportation under Section 212(c) of the Act and the standard of review on appeal. Petitioner claims that the BIA abused its discretion in excluding his witness and in failing to consider each of the positive equities in the record. He contends that the IJ and the BIA did not distinguish but considered, as adverse factors, arrests for which there were no convictions and ignored mitigating factors and evidence of his rehabilitation. The brief argues that petitioner was prejudiced by ineffective assistance of counsel and was thereby denied due process of law because his former counsel failed to file a brief on appeal and to properly present, in a motion to reopen and remand, his marriage to a U.S. citizen which occurred during the pendency of the appeal to the BIA. the reply brief analyzes in detail the preclusion and dismissal of evidence of positive equities that constitute an abuse of discretion.
Petitioner later moved that the First Circuit hold in abeyance its decision, or that it remand it to the BIA to consider new factors. The motion to the BIA to reopen and reconsider and to remand it to the IJ describes the new circumstances resulting from ineffective assistance of counsel, as well as evidence of rehabilitation, family ties and hardship. The memorandum includes extensive documentation describing these new factors.
Order No.: BB-88-8
(a) 45 pp; $10 for NLG members and non-profits; $15 for non-members
(b) 21 pp; $5 for NLG members and non-profits; $7 for non-members
(c) 92 pp; $15 for NLG members and non-profits; $20 for non-members
Almario v. A.G. and INS
(a) Appellant's Opening Brief
(b) Appellant's Reply Brief
Sixth Circuit (May 1988)
Author: Lucas GuttentagThis case addresses whether the two year foreign residency requirement of Section 5 of the Marriage Fraud Amendment of 1986 violates the due process and equal protection rights of United States citizens and their non-citizen spouses. The district court dismissed the suit for declaratory judgment, applying a minimal rationality standard of review. The brief argues that marriage is a fundamental interest protected by the due process clause and that the right is recognized in the immigration context. It also challenges the district court's conclusion that Section 5 does not burden the right to marry since the two year rule applies precisely because the couple marries. It asserts that a meaningful hearing is required when a fundamental right is abridged, and analyzes the requirements of due process in this context. Section 5 creates an invalid irrebuttable presumption that all marriages which occur during the pendency of proceedings are fraudulent. It also violates equal protection by classifying persons based on the exercise of a fundamental right. The government could use equally effective means to detect marriage fraud which would not unduly burden the exercise of a fundamental right.
The reply brief counters the government's and the court's reliance on Fiallo v. Bell, citing the Abourezk decision, which reached the Constitutional question in a non-immigrant visa denial case Under the Francis standard, Section 5 cannot even survive rational basis scrutiny because it is not rationally related to a legitimate government goal. It irrationally distinguishes between aliens who leave the country and those who do not. It also imposes the two year penalty on twice as many valid marriages as on fraudulent ones.
Order No: BB-88-1
(a) 48 pp; $10 for NLG members and non-profits; $15 for non-members
(b) 33 pp; $10 for NLG members and non-profits; $15 for non-members
Alvarado Guevara et al. v. INS
Brief for Appellants
5th Cir. (October 1989)
Authors: M. David Gelfand & Terry Allbritton
Richard Renner
Mark SchneiderThis is an appeal of the denial of a complaint asserting that INS' practice of paying its detainees $1.00 per day for work performed at the detention center violates the minimum wage provisions of the Fair Labor Standards Act (FLSA). The brief analyzes the language, legislative history and purpose of the FLSA and argues that detainees are not specifically exempted from the statutory definition of employee and are therefore included. The brief further argues that the district court misinterpreted and misapplied the Economic Dependency Test, thus wrongly excluding plaintiffs from the provisions of the FLSA, and incorrectly analogized plaintiffs' status as pretrial detainees to that of prisoners, who have been found not to be covered by the FLSA by some courts. Finally, the brief argues 8 U.S.C. §1555(d), which authorizes INS to pay aliens for services they perform while in custody, cannot override the FLSA and is unconstitutional as a justification for failing to pay minimum wage.
Order No.: BB-89-26
53 pp; $10 for NLG members and non-profits; $15 for non-members
Alvarez v. INS
Unpublished Per Curiam Decision
4th Cir. (January 1986)
Author: William Van WyckThe Circuit Court found that the Immigration Judge abused his discretion in denying a reasonable extension of time to supplement the petitioner's motion to reopen. It reversed, granting an extension for ten days, and directed that the motion to reopen be reconsidered after it is supplemented. Because of ineffective counsel this Salvadoran petitioner stated at his deportation hearing that he did not fear returning to his country and did not, therefore, seek asylum. The court found the combination of the allegations of inadequate assistance of counsel and a general claim of eligibility for asylum or withholding of deportation warranted the grant of a reasonable opportunity to supplement the application and complete proofs for the claim with new counsel.
Order No.: BB-86-17
9 pp; $5.00 for NIP members and non-profits; $7.00 for non-members
Alvarez-Velasquez, in the Matter of
Respondent's Brief
BIA (October 1992)
Author: Edward CoghlanRespondent was charged with misprison of a felony and entry without inspection (EWS). The immigration judge agreed that misprison of a felony was not a deportable offense in the ninth Circuit but found the respondent deportable for EWI. Counsel argued that there was no EWI and, in the alternative, that the absence was brief, casual and innocent and did not meaningfully interrupt residence. The Service failed to meet its burden of proving deportability and, because respondent is an LPR, the Service must prove the EWI by clear, convincing and unequivocal evidence. The brief analyzes the factors determining if an absence is meaningfully interruptive and concludes that any possible absence could not be meaningfully interruptive. It discusses the right to argue in the alternative and refutes the judge's analogy to the entrapment defense, which he erroneously concluded forbids argument in the alternative.
Order No: BB-92-25
28pp; $10 for NLG members and non-profits; $15 for non-members
Amanullah and Wahidullah v. Cobb
Decision on Petition for Writ of Habeas Corpus
D. Mass. (May 1987)
Author: Regina LeePetitioners, two detained Afghan asylum seekers who were denied asylum and faced exclusion and deportation to India (the country of embarkation to the U.S.), petitioned the District Court for a writ of habeas corpus. INS had represented to petitioners' counsel that they would not be returned to Afghanistan if they withdrew their appeals of the denial of asylum. Petitioners agreed and INS designated India as the country of deportation. Counsel subsequently learned from UNHCR that India does not allow the return of refugees. Counsel requested a stay of deportation until INS obtained assurances from India that petitioners would be readmitted. INS refused. The question before the court was whether the requirements of 8 USC 1227(a)(2)(D) that the Attorney General may deport excluded