Friday, August 15, 2014

Advice for Pro Se Immigration Litigants by Tomothy Dugdale

Pro se litigants in immigration cases have to face the music early and often that there is no substitute for research. You may have no money for a lawyer but you must make time to read the case law relevant to your particular situation, be it a challenge to an expedited removal, an asylum denial, an illegal re-entry, a denial of cancellation of removal or an actual final order of removal. Own your fight.

There is no escape from filing deadlines. You have 30 days after an agency action to file with the appropriate court of appeals. Under current law, there is no equitable tolling; if you miss the deadline, your case is dead. Following the REAL ID Act of 2005, all petitions for review of agency action must go through the court of appeals. Only challenges to expedited removals are filed and heard in the appropriate district court because they are, under 1252 (e)(2), a habeas petition.

One of the great innovations of the internet is Electronic Case Filing (ECF). If the district court or the appeals court allows it for pro se petitioners, sign up immediately. You may have to file a Motion to Leave to File Electronically and undergo a bit of training but it's worth it. If you've already been removed from the United States, you can't trust the mail to deliver your fillings in a timely fashion. ECF is a must because not only can you file quickly, you receive notice of filings from your opponent and the court quickly. In addition, ECF will make you a better pro se filer because you learn to follow protocol and procedures essential to good advocacy.

Writing a solid brief is a very important matter. It's where you get to tell your story from your perspective. But it also is the arena in which you can and must challenge arguments that you think you'll see coming from the other side. Thus, your opening brief should have a coherent structure that includes a well-researched "devil's advocate" overview of other cases like yours. There is strength is being forthcoming about potential problems in your case, including the administrative record of your deportation hearing or previous rulings. Remember: precedent rules the roost. Judges don't make new law; they interpret the law, using past cases to guide and illustrate their judgement of your case vis-a-vis the relevant statutes. As with any narrative, if your story is short, sweet, coherent and comprehensive, you can engage your audience.

If you're writing a brief for the Board of Immigration Appeals, make sure you include every argument you can make as clearly and completely as possible. Same thing for the AAO. Whatever arguments you DON'T make it in these briefs, you ordinarily will not be able to make them if and when you move on to the court of appeals which traditionally are courts of review and do not take new evidence. Hundreds of cases every year are thrown out at the circuit level because of inept and incomplete arguments made in earlier petitions.

Once you've filed a brief, your work is not done. You still need to keep researching because invariably you will find that one case you overlooked or one that has just been decided that may hold the key to your case. Then it's time to file either a Notice of Supplementary Authority (district court) or a Rule 28j Citation of Supplemental Authorities (circuit court). Both of these are addressed to the clerk of the appropriate court.

Supplemental Authorities are a very valuable tool because they are, in effect, additional briefing. That is to say, you get another chance to enhance your argument by illustrating the pertinent aspect of the cited case. Most importantly, this is not a reply brief, the brief you can and should file after you've read the opposition's brief when they issue it. Raising new arguments in reply briefs is ticklish because the reply brief is considered rebuttal and thus any new argument you make is given much less weight or leeway than those in your opening brief.

Any Notice of Supplemental Authority should be very tight. Do not write more than 300 words. Say your thing hot and fast. But do not expect this filing to go unchallenged by the opposition. You may hit a chink in their armour and they will reply. You are allowed to reply back but keep your reply focused on the citation and  the opposition's interpretation of it.

Pro se litigation is tough. You're on your own and in the end, it's your fight and yours alone. Good lawyers cost good money and if you don't have it, you're best to fight smart and strong.

Timothy Dugdale, Ph.D. Founder Atomic Quill Media Windsor, Ontario N9G 1X3

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