- What is an Appeal?
- An Appeal is sometimes necessary.
- Most lawyers are lousy appellate lawyers
- How do you tell a good appellate lawyer?
What Is An Appeal?
For an immigration client, an appeal targets either a supervising officer at USCIS, the Board of Immigration Appeals (BIA) at the US Justice Department, the Administrative Appeals Office at DHS, or one of the Federal Appellate Courts. Appellate practice consists of writing appeal briefs and in the Federal courts, orally arguing the case.
An appeal never involves rearguing a case on paper. An appeal or “appellate argument” brings the case to a higher level of scrutiny. Almost always, an appeal covers narrowly defined legal areas (example – constitutional questions or questions of law). Like all of us, judges and adjudicating officers are human and make mistakes. But only reversible error may be addressed in an appeal. (Yes, many lawyers spend client’s money arguing mistakes that are harmless error – irrelevant.)
The appellate lawyer properly finds reversible error and attacks it.
Most Lawyers Are Lousy Appellate Lawyers
Among other vast ineptitudes, most immigration lawyers don’t handle appeals very well. Why?
- The issues aren’t properly stated. Sometimes you need to read page after page until you find it. Sometimes you can’t find it;
- The legal authority isn’t specifically relevant. Lots of appeal briefs use boilerplate – tired, reused statutory and caselaw – and repeat it over and over. A client once showed me a BIA brief his former lawyer wrote: the most recent case citation was dated 1971.
- They’re badly written. Most lawyers write in a dull, impenetrable, wearying style: too many prepositional phrases, too much verb “to be” usage, buried verbs, bad organization, and on and on.
Lawyers get away with this because clients never read any sample appellate briefs. When they do (rarely) the lawyers tell them they’re written that way (badly) because the subject is too complicated for clients to understand. That’s nonsense or course. What you’ve read is simply lousy legal work.
Why Appeals Are Sometimes Necessary
Some legal questions cannot be handled adequately at the initial review level. This could be due to the reading of a particular statute, or caselaw interpretations, or even agency policy.
For example, USCIS officers are trained to use what’s called a Field Adjudicator’s Manual. Sometimes the issues involved in attacking a denial reach beyond what’s covered in the manual. And immigration judges also use manuals, and a particular argument may not be covered in the manual. Or the judge, terribly overburdened with pending cases, makes a significant mistake. In every case there’s always something to attack if you know what to look for.
How Do You Tell A Good Appellate Lawyer?
Every immigration lawyer will tell you he can write your appeal brief and do a good job. Here’s how you know if he can. Ask to read one of the appeal briefs. If you can’t understand it, it’s probably lousy. Remember that judges are just people just like you, and that get irritated just like you do. If you find the brief’s language dense and difficult to understand, so will a judge. If you lose patience with the confused and overly verbose writing, so will a judge. And 90% of the time, if you can’t understand the legal argument, neither will a judge.
So a good appellate lawyer’s brief will be easy to understand, well written, and concise.
Board of Immigration Appeals (BIA)
Mostly, not exclusively, for appeal of an adverse removal (deportation) decision in Immigration Court, requires written legal briefs, some motion practice.
Administrative Appeals Office (AAO)
Mostly, not exclusively, for appeal of adverse USCIS decisions, requires written legal briefs. Similar to BIA appeal work.
Federal Circuit Courts of Appeals
Appeals from BIA and AAO decisions may be reviewed (appealed) by the Federal Appellate Court in whatever Circuit the case arises.