Training of Appellate OIL Lawyers Part Two

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 1-197.”

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

Page 12: “If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable.” SEC v. Chenery Corp, 332 U.S. 194, 196 (1947)


Applying the Bars: Section 242(a)(2)(B)(i) Disguised challenges

Meraz-Reyes v. Gonzales, 436 F.3d 842 (8th Cir. 2006): “[T]he  petitioner attacks the BIA determination that the evidence failed to show an ‘extraordinary and extremely unusual hardship.’  

See also Ebrahim v. Gonzales, 471 F.3d 880 (8th Cir. 2006) (no review of “discretionary” facts relating to marriage waiver) (citing Suvarov v. Gonzales, 441 F.3d 618 (8th Cir. 2006))

               Page 71: PERSECUTION

Persecution is “the infliction of suffering or harm on those who differ (in race, religion, or political opinion) in a way regarded as offensive") Matter of S-A-, 22 I & N Dec. 1328, 1336 (BIA 2000)

Persecution” is “the infliction of suffering or harm by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim.” Matter of Kasinga, 22 I & N Dec. 357, 365 (BIA 1996)

Fatin v INS, 12 F.3d 1233, 1240 n. 10 (3d Cir.1993) (Alito, J.) “In ordinary usage, the term ‘persecution’ denotes extreme conduct, and there is nothing indicating Congress intended otherwise.")

“For example [persecution means] a program or campaign to exterminate, drive away, or subjugate a people because of their religion, race, or beliefs.” (Quoting The Random House Dictionary of the English Language, 1444 (2d ed. 1987).

The distinction between “harassment” and “persecution” is the difference “between the nasty and the barbaricor “between wishing you were living in another country and being so desperate that you flee without any assurance of being given refuge in any other country.” Stanojkova v. Holder, 645 F.3d 983 (7th Cir. 2011).)

Comments of the author

The materials are somewhat old. No references to Westlaw.

A nice quote from the Seventh Circuit, not mentioned in the above training:

It requires only a little bit of imagination to put oneself in the place of the Naumovs—robbed; one beaten over the head with a pistol and the other pregnant and sexually molested; her parents rendered unconscious by the assailants' chemical spray; the police unable or unwilling to arrest the assailants because they have the support of the government; and the principal intended victim—Naumov—unable to square himself with his persecutors because he is just a taxi driver in a small town and they have taken his valuables, so he can't bribe them to lay off him and his wife and her parents. Why would anyone hang around in Macedonia after that if there was any way out?

Stanojkova v. Holder, 645 F.3d 943, 948 (C.A.7,2011)

          The training also failed to mention a theory used in the Second Circuit:

“The BIA must, therefore, be keenly sensitive to the fact that a “minor beating” or, for that matter, any physical degradation designed to cause pain, humiliation, or other suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground.”

Beskovic v. Gonzales, 467 F.3d 223, 226 (C.A.2,2006)

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.