IndiaPost.com - Appeals to Board of Immigration Appeals, the second circuit

This outline was prepared in conjunction with Mehta's presentation at a continuing legal education program sponsored by the Federal Bar Council, Asylum 101: Learning How To Effectively Navigate The Asylum Process, on July 2 in New York City. This outline will be useful to readers who need a quick reference for filing appeals of asylum decisions to the Board of Immigration Appeals or to the United States Court of Appeals for the Second Circuit.

A. Board Of Immigration Appeals (BIA)

1. Notice of Appeal.

File Notice of Appeal on EOIR Form-26 within 30 days of IJ decision, and it must be filed directly to the BIA within 30 calendar days of an IJ's oral decision or the mailing of an IJ's written decision. 8 CFR § 1003.38. If the final date is a Saturday, Sunday or public holiday, the appeal time shall be extended to the next business day. Id. A Notice of Appeal may not be filed by a party who has waived appeal. Id; But see US v. Calderon, 391 F.3d 370 (2d Cir. 2004) (waiver can be challenged where respondent did not knowingly and intelligently waive his right to appeal). The 30 day deadline is mandatory and jurisdictional.

2. Briefs.

The NOA must specify in detail the factual and legal grounds, as well as the errors relating to the statutory ground of eligibility or to the exercise of discretion. 8 CFR §1003.3(b). It must be accompanied by an EOIR-27, and a certificate of service with a complete address demonstrating service on DHS counsel. 8 CFR § 1003.3(a)(1). The BIA will create a record of the proceeding and schedule a briefing schedule. For a non-detained case, each party has 21 days to submit a brief. Each party may obtain an extension of the 21 day period by filing a motion prior to the date. In a detained case, the parties must simultaneously file their briefs within the 21-day period. 8 CFR § 1003.3(c).

1 Member vs. 3 Member Panel.

Since most decisions will be decided by one Board member, it is important to explain in detail why the case should be referred to a 3-member panel. 8 CFR § 1003.3(b) and state the reasons under 8 CFR §1003.1(e)(6): i) to settle inconsistencies among the rulings of different immigration judges; ii) to establish a precedent construing the meaning of laws, regulations or procedures; iii) to review a decision by an IJ or DHS that is not in conformity with the law or with applicable precedents; iv) to resolve a case or controversy of major national import; v) to review a clearly erroneous factual determination by an IJ; or vi) to reverse the decision of an IJ other than by the procedure for a brief order by a single Board member.

See Proposed BIA Rule on Affirmance Without Opinion [EOIR Docket No. 159P; AG Order No. 2976-2008], where AWO will be deemed to have considered all arguments and claims, and is not to be construed as waiving a party's obligation to exhaust remedies. The preamble to the proposed BIA rule also refers to National Cable & Telecom Ass'n v. Brand X Internet Services, 545 US 967 (2005) (unless the court finds a statutory provision unambiguous under Chevron step one - the administrative agency is free to adopt a contrary interpretation, as long as it does so with proper foundation and explanation, and the courts are thereafter required to defer to the agency's new interpretation under Chevron step two). If BIA has affirmed the IJ's decision without opinion, Second Circuit will review the IJ's decision as a final agency determination. Ming Xia Chen v. BIA, 435 F.3d 141 (2d Cir. 2006).

4. New Evidence.

The BIA will not accept new evidence "[E]xcept for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand." 8 CFR § 1003.1(d)(3). The BIA will only grant the remand if the new evidence would change the outcome of the case. Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).

A motion to remand while the appeal is pending does not trigger the time or number limitations for a motion to reopen pursuant to 8 CFR § 1003.2(c)(2). BIA also has sua sponte authority to remand a case for further fact finding. Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005).

5. Standard of Review.

Pursuant to 8 CFR § 1003.1(d)(3), BIA will not engage in de novo review of factual findings, including credibility, and such findings shall only be reviewed to determine whether the findings of the immigration judge are clearly erroneous. The BIA has retained de novo standard for: 1) all questions of law, discretion, and judgment and all other issues in appeals from decision of immigration judges. BIA will also apply de novo review regarding application of law to particular set of facts, such as past persecution or a well founded fear of persecution.

See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008) ("in determining whether established facts are sufficient to meet a legal standard, such as "well founded fear," the Board is entitled to weigh the evidence in a manner different form that accorded by the Immigration Judge, or to conclude that the foundation of the IJ's legal conclusions was insufficient or otherwise not supported by the evidence of the record").

Prior to the clearly erroneous standard, in Matter of S-A, 22 I&N Dec. 1328, the BIA relied on Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998) in holding: "We recently articulated a three-pronged approach to assessing an Immigration Judge's credibility findings. Matter of A-S-, supra.

We held that we will generally defer to an adverse credibility determination based on inconsistencies and omissions regarding events central to an alien's asylum claim where a review of the record reveals that (1) the discrepancies and omissions described by the Immigration Judge are actually present in the record; (2) such discrepancies and omissions provide specific and cogent reasons to conclude that the alien provided incredible testimony; and (3) the alien has failed to provide a convincing explanation for the discrepancies and omissions."

(To be continued)