Too many immigration lawyers fall into the same trap: having pored over the evidence for their client and thought through the precedents, they come up with sharp arguments in support of cancellation of removal and, when the Immigration Judge denies the requested relief, they restate the same arguments in a brief to the Board of Immigration Appeals (BIA). Then, if the BIA denies the appeal, the unwary lawyer simply restates the same arguments again to the Circuit Court.
After so much careful analysis the arguments presented to the Immigration Court should be sufficient, right?
Wrong.
By thinking you can regurgitate the arguments from your Immigration Court hearing and motion papers you are missing an important point—and the oversight could lead to the loss of your client’s right to appeal an unfavorable BIA decision to the Circuit Court.
The point is this: while the BIA is an administrative appeal body that reviews questions of law de novo and factual determinations for clear error, the Circuit Court’s review of the BIA’s decision is limited by statute. In particular, the Circuit Court is barred (by 8 USCS § 1252(a)) from reviewing a BIA decision affirming a discretionary decision from the Immigration Court.
Many Immigration Court decisions are based on a discretionary analysis. When the BIA reviews discretionary decisions from the Immigration Court, the BIA decisions are considered discretionary as well.
And the Circuit Court will not review discretionary decisions. Period.
So how can you get the Circuit Court to review the BIA’s denial of your client’s appeal when it was based on a discretionary decision? By finding—and asserting—a constitutional claim or question of law, which the Circuit Court is permitted to review (by 8 USCS §1252(a)(2)(D)).
This is not always easy (or possible), so it is worth spending some time thinking about it (or engaging an immigration appeal attorney like me to help you). You will have to dive deep into the Immigration Judge’s reasoning, and think carefully about both the standards of proof and constantly evolving constitutional rights.
But there is some good news: in a recent decision, the Supreme Court made it easier to raise a question of law in a BIA brief by holding a question of law includes whether a legal standard was correctly applied to undisputed facts (I’ve worked on several cases where a Circuit Court declined to exercise review over an argument regarding the proper application of a legal standard, so I was pleased about this development).
The case is Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020), and I uploaded a copy of here for you. Feel free to share your comments about it in the box below.
One more point: don’t think you can wait until after your client’s BIA appeal is denied to find a claim or question that the Circuit Court will review. If you fail to raise them in the BIA brief, they can still be rejected based on your client’s failure to “exhaust all administrative remedies” (remember, the Immigration Courts and BIA are administrative). To best advocate for your client, you must find out if a constitutional claim or question of law is plausible, and if it is, you must include it in your BIA brief.
Get in touch if you would like my help in finding a legal argument that will pass the test for Circuit Court judicial review.
Or, if you don’t yet need my thinking, but you want to have my contact info handy when you are ready to get help with your appeal, put your email in the box below to signup for my quarterly newsletter (an example of which you can see here).
