Training of Appellate OIL Lawyers Part Three

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 www.louisetrauma.weebly.com, marked as “OIL May 2022 pages 1-299.”

Page 56: Gonzales-Veliz v. Barr, 33 F.3d 234 (5th Cir. 2019): 1] substantial evidence supported BIA's finding that alien failed to show that she was harmed on account of her membership in particular social group of Honduran women unable to leave  relationship; and

2] substantial evidence supported IJ's finding that Honduran police did not and would not acquiesce to alien's alleged torture by her ex-boyfriend;

Page 71: REALISTIC PROBABILITY TEST

To show that a crime falls outside of the generic definition, there must be a realistic probability, not a theoretical possibility, that the statute criminalizes non-removable conduct. Gonzales v.

Duenas-Alvarez, 549 U.S. 183 (2007)

Page 93  BIA REJECTS FACIAL OVERBREATH

> alien must identify a case where the state court applies the statute of conviction in a manner that is outside the generic decision of the crime. Matter of Navarro Guadarrama/Ferreira / Sanchez-Lopez / Chairez.

Where an alien has been convicted of violating a State drug statute that includes a controlled substance that is not on the Federal controlled substances schedules, he or she must establish a realistic probability that the State would actually apply the language of the statute to prosecute conduct involving that substance in order to avoid the immigration consequences of such a conviction. Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014), reaffirmed.

Matter of Jesus Gabriel Navarro Guadarrama, Respondent, 27 I. & N. Dec. 560, 1–560, 2019 WL 2463261, at *1

Page 116   “ONE CENTRAL REASON” AND WITHHOLDING OF REMOVAL

9th Circuit’s Barajas-Romero: “a reason” test for withholding, not “one central reason “In REAL ID Act, Congress put “one central reason” in asylum statute, but failed to put it in withholding. Board said silence was “not conclusive” and “one central reason” should be read into withholding, either at Chevron I or II. Matter of C-T-L-, 25 I&N Dec 341 (2010).

9th Circuit said the REAL ID Act chose a different standard for withholding, “a reason,” and it is “less demanding” than “one central reason.” Barajas-Romero, 846 F.3d at 361.

Page 178 Matter of Jimenez-Cedillo  27 I. & N. Dec. 1 (BIA 2017)

Maryland offense for sexual solicitation of a minor is a categorical CIMT

Substantive offense did not require culpable mental state with respect to victim’s age

Relied on specific intent mens rea from solicitation

Page 194  

Valenzuela Gallardo v. Barr, 968 F.3d 1053 (C.A.9, 2020)

    Court of Appeals' application on prior review of Chevron framework in determining whether BIA's interpretation of “offense relating to obstruction of justice,” was entitled to deference was law of case on subsequent petition for review;

   BIA's interpretation of “offense relating to obstruction of justice” to include offense that involved interference with proceedings or investigations that were “reasonably foreseeable to the defendant” was not entitled to Chevron deference;

  California conviction for accessory to felony was not categorical match with “offense relating to obstruction of justice,” and thus was not “aggravated felony” that subjected alien to removal.

Petition for review granted; vacated.

Page 236  SECONDARY SOURCES:

   Kurzban, KURZBAN’S IMMIGRATION LAW SOURCEBOOK (AILA)

American Immigration Lawyers Association - [http://www.aila.org/]

The American Immigration Lawyers Association (AILA) is the national association of over 15,000 attorneys and law professors who practice and teach immigration law.

Center for Immigration Studies (CIS) - [http://www.cis.org]

The CIS is a think tank devoted exclusively to research and policy analysis of the economic, social, demographic, fiscal, and other impacts of immigration on the United States.

Page 239: ILW.COM - [http://www.ilw.com]

ILW.COM is an immigration law publisher who provides many free resources on its website, including its publication of Immigration Daily, a daily collection of links to immigration articles, blog posts, and news items in the U.S.

Professors’ Blog - [http://lawprofessors.typepad.com/immigration/]

Posts from four law professors include commentary and articles regarding recent events and developments in immigration law and policy.

Siskind’s Immigration Bulletin - [http://www.visalaw.com/bulletin.html] One of the first immigration law sites on the internet provides a law firm’s monthly bulletin on immigration issues.

Page 259 MOTIONS TO RE-OPEN

For evidence submitted with the motion to reopen . . . The Board “must accept as true the facts asserted by the petitioner, unless they are inherently unbelievable.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017).

“Since motions to reopen are decided without benefit of a hearing, common notions of fair play and substantial justice generally require that the Board accept as true the facts stated in an alien’s affidavits in ruling on his or her motion.” Reyes v. INS, 673 F.2d 1087, 1090 (9th Cir. 1982).

Page 260: The Board must make an explicit determination that the evidence is “inherently unbelievable.” Tilija v. Att’y Gen., 930 F.3d 165, 171 (3d Cir. 2019). But see Trujillo, 880 F.3d at 253 (suggesting court can infer).

Page 263: The 2d Circuit follows the maxim of falsus in uno, falsus in omnibus.

“[A] single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.”

Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007).

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 <louise.trauma.ltc@gmail.com>

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