Training of Appellate Oil Lawyers Part One

by David L. Cleveland

The Office of Immigration Litigation [OIL] is a division in the Department of Justice. OIL has an appellate section. In response to a FOIA lawsuit by the Louise Trauma Center, some pages from training given to the lawyers in that section were released.

 This article will quote some of the material. The pages are available on the “FOIA” page at, marked as “OIL May 2022 pages 1-300.”

Some of the material is aimed at the novice; some is sophisticated. I believe most are from the year 2020.

Page 37:  When must DHS satisfy its burden of proving a returning LPR is an applicant for admission? Board’s position is that DHS must satisfy burden in proceedings.

  • Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (BIA 2012).
  • Munoz v. Holder, 755 F.3d 366 (5th Cir. 2014) (agreeing with the Board).

 Doe v. Att’y Gen. of U.S., 659 F.3d 266 (3d Cir. 2011), the Court held that, at the border, DHS must have probable cause that a crime has been committed


A wave-through at the border is an admission because it is procedurally regular. But that person does not have legal status.

  • Matter of Quilantan, 25 I. & N. Dec. 285 (BIA 2010).

A procedurally-regular, illegal reentry following removal does not preclude reinstatement of the prior order of removal.  Mendoza v. Sessions, 891 F.3d 672 (7th Cir. 2018); Cordova- Soto v. Holder, 659 F.3d 1029, 1033 (10th Cir. 2011).


“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”  MATHEWS V. ELDRIDGE, 424 U.S. 319, 333 (1976).

Page 77: Due process always requires, at a minimum, notice and opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)

Page 97 VAGUENESS                  

  • The statute “fails to provide a person of ordinary intelligence fair notice of what is prohibited.”
  • The statute is so “standardless that it authorizes or encourages seriously discriminatory enforcement.”

FCC v. Fox Tel. Stations, Inc., 132 S.Ct. 2307, 2317 (2012).

Page 170  CRIMES

8 U.S.C. § 1227(a)(2)(A)(i) Crimes of moral turpitude (CIMT)(i)   Crimes of moral turpitude Any alien who– (I)  is convicted of a crime involving moral turpitude committed within five years after the date of admission, and (II)   is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

8 U.S.C. § 1227(a)(2)(A)(iii) Aggravated felony (iii) Aggravated felony

Any alien who is convicted of an aggravated felony at any time after admission is deportable.

8 U.S.C. § 1101(a)(43) "Aggravated felony" means (F)  a crime of violence for which the term of imprisonment is at least one year. (G)  a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year;


Page 222: Matter of Garcia-Madruga, 24 I. & N. Dec. 436 (BIA 2008)Theft and Fraud aggravated felonies are distinct and separate: ??Theft aggravated felony requires a showing that the owner did not consent voluntarily to taking/control ??Fraud aggravated felony requires a showing of actual, voluntary consent to taking/control due to deceit

Page 234: Level of Physical Force: The Game Changer

Stokeling v. United States, 139 S. Ct. 544 (2019) A robbery statute that has as an element the use of force sufficient to overcome a victim’s resistance necessarily involves the use of physical force required for a “violent felony” under the ACCA

Page 269:  Mental State: Intent to deprive the owner of the property either –?? Permanently, or?? Under circumstances where the owner’s property rights are substantially eroded ¨ Reprehensible Conduct: Any under statute (generally, taking or exercising control over) Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016); Matter of Obeya, 26 I. & N. Dec. 856 (BIA 2016)

Retroactive? Monteon-Camargo v. Barr, 918 F.3d 423 (5th Cir. 2019); Garcia-Martinez v. Sessions, 886 F.3d 1291 (9th Cir. 2018); Lucio-Rayos v. Sessions, 875 F.3d 573 (10th Cir. 2017); Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2017)

Comments of the author

The materials are somewhat old. No references to Westlaw

About The Author

David L. Cleveland was the Chair of the AILA Asylum Committee [2004-05] and has secured asylum or withholding for persons from 48 countries. Based in Washington DC, he is available at <>

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.