Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Petitioning the Ninth Circuit For Review: An Introduction

This is a follow-up to my article of last week on "volume lawyers" and the United States District Court. Remember, lawyers who see you as a file number; a name amongst thousands of others. They simply delete one name from a complaint and then put your name in. Hopefully that is. Sometimes they forget to change the names. Understandably, it confuses the court and government counsel. If the lawyer who drafted the document actually read it, it would confuse him to.

These volume lawyers are not only a problem in the district courts, but perhaps more so, in the United States Court of Appeals for the Ninth Circuit. The 9th Circuit Court of Appeals has more immigration cases on its docket than any other circuit court of appeals in the United States. Yet, the quality of some of the lawyering is probably some of the worst. Volume-lawyers and those that don't know any better. Troubling to say the least.

The quality of legal work has become so bad that the court itself was forced to draft an outline of immigration law with cites to both statutory and case law. Go the court's website and you will see what I am talking about (www.ca9.uscourts.gov). While the outline is a wonderful tool, in my opinion, it is a sign of problems: problem(s) with the lawyers that appear before the court either in person or through the filing of their documents.

See immigration court really has no rules. Sure, each judge has there own particular requirements, format of pleadings, page numbers on documents and certain preferences. The Board of Immigration Appeals has a practice manual, but there are no rules of evidence. Of course, you cannot introduce new facts unless certain rules are met; otherwise, one is permitted to draft a brief as they see fit.

Not so with the district courts or the federal appellate courts. There are Federal Rules of Evidence and Federal Rules of Appellate Procedure. There are local rules and circuit rules. District Court judges have local rules. Point being, federal practice is rule driven. Immigration practice should be but is not. And, most local immigration lawyers that attempt to evolve into lawyers that practice in the federal courts are not familiar with the rules or are too busy counting your money to be concerned with quality. Of course, there are good lawyers who know what there doing. They even exist at some of the volume law firm. Its just that they don't get a chance to shine since the volume of cases that they are required to handle prevents them from addressing issues deserving of greater attention.

Another problem with immigration lawyers practicing at the real federal level is that volume lawyers think that every time a case is lost at the Board of Immigration Appeals that the losing party (normally the foreign national) was denied due process of law. See, those lawyers that are knowledgeable enough to be familiar with the immigration statute know that in 1996 the law changed. And, with the change in the law, the federal courts of appeals were deprived of reviewing cases were discretionary denials. The appellate courts are still allowed, however, to determine whether or not constitutional due process of law was provided at the appellate level (or perhaps the lower trial court). If you lose at the Board of Immigration Appeals, it doesn't mean that you were denied due process of law. Maybe you're case wasn't strong enough. Then again, maybe it was.

One only knows if due process was appropriately afforded you by careful review and analysis of the proceedings which took place to date. This should be done before you file a petition for review! Spend the money that it would take to analyze the case. After all, it will be cheaper then simply filing the petition for review!

All this talk about petitions for review. What are they? A petition for review is the legal name of the document filed with the Circuit Court of Appeals wherein a foreign national is requesting review of an administrative decision of the Board of Immigration Appeals. This means that you would have lost at the BIA. This Petition must be filed within 30 days of the administrative decision; otherwise you are forever barred from pursuing the petition, absent exceptional and compelling circumstances.

Compare and contrast the writ of habeas corpus spoken of last week. No time limit to file most immigration related habeas petitions. One limit, however, is the exhaustion of judicial and administrative remedies. What this means is that if you lose at the BIA, you would have to file with the federal circuit appellate court, prior to asking the district court to consider a writ of habeas corpus.

If it sounds confusing, it is. Difficult to write about and talk about, especially in the brief time period that most lawyers take to perform an initial consultation. And, this holds true whether the consultation is paid for or free. If a lawyer simply attempts to sign you up for a petition for review or a writ of habeas corpus without carefully analyzing your case, I'd be willing to bet that he's a volume lawyer. And if he is, "turn it down."

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