Litigating im m i g r a t i o n Cases in the se C ond CirCuit Imm Cases in 2d Cir 2.9.2… · ·...

4 TRANSITIONAL ANd NON-TRANSITIONAL MCLE CREdITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 4 Transitional and Non-Transitional credit hours: 1 Ethics; 1 Professional Practice; 2 Skills.

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Litigating immigration Cases in the seCond CirCuit

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for February 9, 2011.

P r o g r A m C o - s P o N s o r :

NYCLA Committee on Federal Courts

P r o g r A m C h A I r s :

Gregg Kanter, Flemming Zulack Williamson Zauderer LLP daniel B. Lundy, Barst Mukamal & Kleiner LLP (also Faculty) Stuart White, Law Offices of Joshua L. Dratel, P.C. (Moderator)

F A C u L t Y :

douglas Broder, K&L Gates LLP H. Raymond Fasano, Esq. Matthew Guadagno, Esq.

Robert Juceam, Fried, Frank, Harris, Shriver & Jacobson LLP Hon. Robert Katzmann, U.S. Ct. of Appeals, 2d Cir.

Eva Saltzman, Supervisory Staff Attorney, Immigration Unit, Office of Legal Affairs, U.S. Ct. of Appeals, 2d Cir.

Information Regarding CLE Credits and Certification Litigating Immigration Cases in the Second Circuit Wednesday, February 9, 2011, 5:30PM – 9:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of each day. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iv. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

v. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving . The time will be verified by the Program Assistant. If it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

vi. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Litigating Immigration Cases in the Second Circuit Wednesday February 9, 2011 5:30 PM – 9:00 PM

AGENDA

1 Professional Practice; 1 Ethics; 2 Skills 5:00 PM – 5:30 PM

Sign in and Registration

5:30 PM – 5:40 PM 5:40 PM – 5:55 PM 5:55 PM – 6:20 PM

Introduction Stuart White The Need for Immigrant Representation/ Pro Bono Counsel Hon. Robert Katzmann History of Second Circuit’s Immigration Docket; CAMP Conference System; Common Attorney Errors; Pro Bono Panel Eva Saltzman

6:20PM – 6:45 PM

Ethical Considerations Robert Juceam

6:45PM – 7:00PM

Pro Bono Panel and Immigration Case Experiences Douglas Broder

7:00PM – 7:10PM 7:10 PM – 7:25 PM

BREAK Overview of Removal Proceedings Matthew Guadagno H. Raymond Fasano Daniel Lundy

7:25 PM – 8:00 PM 8:00PM – 8:35PM 8:35PM – 9:05PM 9:05PM – 9:15PM

Petition Procedures Matthew Guadagno H. Raymond Fasano Daniel Lundy Briefing and Oral Argument Matthew Guadagno H. Raymond Fasano Daniel Lundy Substantive Issues; Jurisdiction and Standards of Review Matthew Guadagno H. Raymond Fasano Daniel Lundy Questions

Part 1: Immigrant Representation, Pro Bono Counsel

Deepening the Legal Profession’s Pro Bono Commitment to the Immigrant Poor By Hon. Robert Katzmann

The Legal Profession and the Unmet Needs of the Immigrant Poor By Hon. Robert Katzmann Plan for the Appointment of Pro Bono Counsel, U.S. Court of Appeals for the Second Circuit (Revised April 2006) Application for Appointment to the Pro Bono Panel Description of the Pro Bono Panel Attorney Admission Instructions and Application Attorney Renewal Instructions and Application

Fordham Law Review

The Robert L. Levine Distinguished Lecture Overcoming Barriers to Immigrant Representation:

Exploring Solutions

Deepening the Legal Profession’s Pro Bono Commitment to the Immigrant Poor

Hon. Robert A. Katzmann

Reprinted from FORDHAM LAW REVIEW

© 2009 by Fordham Law Review Vol. 78 November 2009 No. 2

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

CHIEF JUDGE DENNIS JACOBS

CATHERINE O’HAGAN WOLFE ELIZABETH CRONINCLERK OF COURT DIRECTOR, OFFICE OF

LEGAL AFFAIRS

March 19, 2010

For Immediate Release

The Criminal Justice Act/Pro Bono Committee is accepting applications for service onthe Pro Bono Panel. The final date for filing of applications is FRIDAY, APRIL 30, 2010.

Pro Bono Panel members will, at the Court’s own invitation, or on an appellant’s motionfor appointment of counsel, represent pro se litigants in civil appeals which present issues of firstimpression, complex issues of law or fact, or which raise potentially meritorious claimswarranting further briefing and oral argument. Pro bono representation will be provided to thoselitigants whom the Court deems would benefit from such representation but who wouldotherwise be unable to pay for counsel and are ineligible for the appointment of counsel pursuantto the Criminal Justice Act.

Cases for which pro bono counsel will be appointed include a broad range of legal issues. While a significant percentage of the cases are prisoner civil rights appeals, many other issuesmay be included, such as those involving labor and employment, discrimination, social security,immigration and tax law.

Applicants must be admitted to and members in good standing of the Bar of the SecondCircuit, or have an application pending before this Court, and have at least three years ofappellate experience. Pro Bono Panel members will serve for a term not to exceed three years.

Those Pro Bono Panel Members who were appointed by the Court in 2007 for a three-year term, must submit a new application if they wish to remain on the Panel.

All attorneys seeking appointment to the Pro Bono Panel must submit an applicationwhich is available on the Court’s website at http://www.ca2.uscourts.gov, a resume and threewriting samples, preferably appellate briefs on which the attorney was the primary author. Completed applications and accompanying documents must be submitted to Elizabeth Cronin,Director of Legal Affairs, United States Court of Appeals for the Second Circuit, 40 FoleySquare, New York, NY 10007, by no later than Friday, April 30, 2010.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITATTORNEY ADMISSIONS

THURGOOD MARSHALL UNITED STATES COURTHOUSE

40 FOLEY SQUARE

NEW YORK, NY 10007

212-857-8603

DENNIS G. JACOBS CATHERINE O’HAGAN WOLFE

CHIEF JUDGE CLERK OF COURT

ATTORNEY ADMISSION INSTRUCTIONS

1. Read FRAP 46 and Second Circuit Local Rule 46.1 located on the Court’s website atwww.ca2.uscourts.gov.

2. Use only the provided Attorney Admission Application and accompanying AttorneyAdmission Oath and Sponsor’s Motion for Admission.

3. Be sure to include your bar number from your primary court of admission asrequested on the application.

4. Submit with your application a certificate of good standing issued within theprevious six (6) months from the primary court of admission listed on yourapplication.

5. If you are admitted to more than one bar, provide additional bar information on thesheet provided and attach to your application. If the sheet provided does not offersufficient space to list all bars to which you are admitted, copy the sheet as neededand list the additional information.

6. Any supplemental information required to be filed in accordance with theapplication must be typewritten on a separate attachment that identifies the portionof the application to which the supplemental information relates.

7. The Sponsor’s Motion for Admission must be completed by a member in goodstanding of the Second Circuit’s bar.

8. Remit the required $190.00 fee with your application unless otherwise exempt under28 U.S.C. § 1913. Make a check for the fee payable to “UNITED STATES COURTOF APPEALS FOR THE SECOND CIRCUIT.” If an attorney subsequentlyseparates from service that affords the exemption, the attorney must reapply foradmission to this Court and pay the required admission fee.

9. Completed application materials and the admission fee may be delivered to theOffice of the Clerk, located in Room 370 of the Daniel Patrick Moynihan UnitedStates Courthouse, 500 Pearl Street, New York, NY, or mailed to the address setforth at the top of this page.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

ATTORNEY ADMISSION APPLICATION(PLEASE TYPE)

NAME: (as recorded in primary state/court of admission)

_________________________________________________________________________________________________Last Name First Name Middle Name or Initial

SEX: ___ Male ___ Female DATE OF BIRTH: __________________________ (mm/dd/yyyy)

BUSINESS ADDRESS:

_________________________________________________________________________________________________Law Firm, Agency, Company, or Other Business

_________________________________________________________________________________________________Street Address

_________________________________________________________________________________________________City State Zip Code

_____________________________ ________________________ Business Phone (incl. area code) Business E-mail Address

_____________________________ ________________________ Cell Phone (incl. area code) Other E-mail Address

BAR INFORMATION: (if admitted in more than 1 state or other court, provide additional courts and years admittedon attached list and submit with application)

__________________________________ _______________ __________________________ Primary Court of Admission Year Admitted Bar Number (required)

PLEASE ANSWER THE FOLLOWING QUESTIONS:

___Yes ___No 1. Have you ever been known by any name other than that appearing on this application? (If yes, attacha list of all other names used.)

___Yes ___No 2. Have you been disbarred or suspended from practice, or have you received a reprimand pertaining toyour conduct or fitness to practice law from any court, department, bureau or commission of any stateor the United States? (If yes, attach a detailed explanation containing dates and circumstances.)

___Yes ___No 3. Are there currently pending against you any proceedings or allegations regarding an action fordisbarment, suspension, or reprimand pertaining to your conduct or fitness to practice law from anycourt, department, bureau or commission of any state or the United States? (If yes, attach a detailedexplanation containing dates and circumstances.)

___Yes ___No 4. Are you currently under investigation, or have you been a party to criminal or civil proceedingsalleging fraud, misrepresentation, or other dishonesty? (If yes, attach a detailed explanation.)

FEE SUBMITTED: ___ $190 ___N/A (exempt)

Hand-deliver completed applications to the Clerk’s Office, Room 370, Daniel Patrick Moynihan U.S. Courthouse, 500 Pearl Street,

New York, NY or mail to United States Court Of Appeals for the Second Circuit, Attorney Admissions, 40 Foley Square, New York,

NY 10007.


ADDITIONAL BAR INFORMATION

COURT OF ADMISSION YEAR ADMITTED

If this page cannot accommodate all of the applicant’s additional bar information, please copy this pageand provide the additional information. All additional bar information should be attached to thesubmitted application.


ATTORNEY ADMISSION OATH(To be completed and submitted only by attorneys seeking admission)

I, ______________________________________, do solemnly swear (or affirm) that Ihave read and gained familiarity with the Federal Rules of Appellate Procedure and Local Rulesof the Second Circuit; completed the Attorney Admission Application, and remitted theappropriate fee unless I am otherwise exempt from payment.

I am a member in good standing of each bar I listed on my Attorney AdmissionApplication. I am an attorney of good moral and professional character and have been neitherdisbarred nor suspended from practice in any court.

I will conduct myself as an attorney and counselor of the United States Court of Appealsfor the Second Circuit uprightly and according to law, and I will support the Constitution ofthe United States.

____________________ ____________________________________Date Signature of Applicant

Subscribed and sworn to before me, a Notary Public in and for the _____________________ of___________________________, State of ____________________________, this _____ day of_____________________, 20____.

____________________________________ Signature of Notary

FOR OFFICE USE ONLY:

DATE OF ADMISSION ________________ ADMISSION NO. ____________________


SPONSOR’S MOTION FOR ATTORNEY ADMISSION(To be completed and submitted only for attorneys seeking admission)

I, __________________________________________, having been duly admitted to theUnited States Court of Appeals for the Second Circuit on the ___ day of __________________,___________, submit this motion in support of the request for admission made by the attorneyset forth above.

I swear (or affirm) that I have read copies of the applicant’s completed AttorneyAdmission Application and signed Oath/Affirmation and believe them both to be true andcorrect and in compliance with FRAP 46 and Second Circuit Local Rule 46.1. I have knownthe applicant since _________________________________, and I am of the opinion that theapplicant is of good moral character, reputation, and competency.

____________________ ____________________________________Date Signature of Movant

Subscribed and sworn to before me, a Notary Public in and for the _____________________ of___________________________, State of ____________________________, this _____ day of_____________________, 20____.

____________________________________ Signature of Notary

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITATTORNEY ADMISSIONS

THURGOOD MARSHALL UNITED STATES COURTHOUSE

40 FOLEY SQUARE

NEW YORK, NY 10007

212-857-8603

DENNIS G. JACOBS CATHERINE O’HAGAN WOLFE

CHIEF JUDGE CLERK OF COURT

ATTORNEY RENEWAL INSTRUCTIONS

1. Read FRAP 46 and Second Circuit Local Rule 46.1 located on the Court’s website atwww.ca2.uscourts.gov.

2. Use only the provided Attorney Renewal Application.

3. Be sure to include your bar number from your primary court of admission asrequested on the application.

4. If you are admitted to more than one bar, provide additional bar information on thesheet provided and attach to your application. If the sheet provided does not offersufficient space to list all bars to which you are admitted, copy the sheet as neededand provide the additional information.

5. Any supplemental information required to be filed in accordance with theapplication must be typewritten on a separate attachment that identifies the portionof the application to which the supplemental information relates.

6. Remit the required $25.00 fee with your application unless otherwise exempt under28 U.S.C. § 1913. Make a check for the fee payable to “UNITED STATES COURTOF APPEALS FOR THE SECOND CIRCUIT.” If an attorney subsequentlyseparates from service that affords the exemption, the attorney must reapply forrenewal to this Court (or admission if an admission fee was never paid because ofthe exemption) and pay the required renewal (or admission) fee.

7. Completed application materials and the admission fee may be delivered to theOffice of the Clerk, located in Room 370 of the Daniel Patrick Moynihan UnitedStates Courthouse, 500 Pearl Street, New York, NY, or mailed to the address setforth at the top of this page.

8. Any attorneys admitted since January 1, 1985 can find their admission date byclicking on the Attorney Admissions tab on the court’s website. For any questionsrelated to admissions prior to 1985 or any other admissions issues, please call 212-857-8603 or e-mail an inquiry, beginning April 15, 2009, [email protected].


ATTORNEY RENEWAL APPLICATION(PLEASE TYPE)

SECOND CIRCUIT ADMISSION DATE: ________________________________ (mm/dd/yyyy)

NAME: (as recorded in primary state/court of admission)

_________________________________________________________________________________________________Last Name First Name Middle Name or Initial

SEX: ___ Male ___ Female DATE OF BIRTH: __________________________ (mm/dd/yyyy)

BUSINESS ADDRESS:

_________________________________________________________________________________________________Law Firm, Agency, Company, or Other Business

_________________________________________________________________________________________________Street Address

_________________________________________________________________________________________________City State Zip Code

_____________________________ ________________________ Business Phone (incl. area code) Business E-mail Address

_____________________________ ________________________ Cell Phone (incl. area code) Other E-mail Address

BAR INFORMATION: (if admitted in more than 1 state or other court, provide additional courts and years admittedon attached list and submit with application)

__________________________________ _______________ ______________________________ Primary Court of Admission Year Admitted State Bar Registration No. (required)

PLEASE ANSWER THE FOLLOWING QUESTIONS:

___Yes ___No 1. Have you ever been known by any name other than that appearing on this application? (If yes, attacha list of all other names used.)

___Yes ___No 2. Have you been disbarred or suspended from practice, or have you received a reprimand pertaining toyour conduct or fitness to practice law from any court, department, bureau or commission of any stateor the United States? (If yes, attach a detailed explanation containing dates and circumstances.)

___Yes ___No 3. Are there currently pending against you any proceedings or allegations regarding an action fordisbarment, suspension, or reprimand pertaining to your conduct or fitness to practice law from anycourt, department, bureau or commission of any state or the United States? (If yes, attach a detailedexplanation containing dates and circumstances.)

___Yes ___No 4. Are you currently under investigation, or have you been a party to criminal or civil proceedingsalleging fraud, misrepresentation, or other dishonesty? (If yes, attach a detailed explanation.)

FEE SUBMITTED: ___$25 ___N/A (exempt) SIGNATURE: _______________________________________

Hand-deliver completed applications to the Clerk’s Office, Room 370, Daniel Patrick Moynihan U.S. Courthouse, 500 Pearl Street,

New York, NY or mail to U.S. Ct. of Appeals for the 2 Circuit, Attorney Admissions, 40 Foley Square, New York, NY 10007.nd


ADDITIONAL BAR INFORMATION

COURT OF ADMISSION YEAR ADMITTED

If this page cannot accommodate all of the applicant’s additional bar information, please copy this pageand provide the additional information. All additional bar information should be attached to thesubmitted application.

Part II: Procedural and Substantive Issues Concerning the Petition for Review Process

A. General Information

Selection of Applicable Federal Rules of Appellate Procedure, Local Rules of the Second Circuit Relevant to Filing a Petition for Review List of Addresses for Service of a Petition for Review Nuts and Bolts in Presenting Petitions for review to the U.S. Court of Appeals for the Second Circuit By Matthew L. Guadagno How to Appeal an Agency Case to the United States Court of Appeals for the Second Circuit

B. Forms, Instructions and Notices

Selection of Applicable Federal Rules of Appellate Procedure, Local Rules of the Second Circuit, Which are Relevant to Filing a Petition for Review, and 8 U.S.C. § 1252

1. Judicial review of orders of removal – 8 U.S.C. § 1252 (INA § 242) 2. Rule 15, Fed.R.App.P. – Review or Enforcement of an Agency Order—How

Obtained; Intervention

3. Rule 16, Fed.R.App.P. – The Record on Review or Enforcement 4. Rule 17, Fed.R.App.P. – Filing the Record 5. Rule 18, Fed.R.App.P. – Stay Pending Review 6. Rule 19, Fed.R.App.P. – Settlement of a Judgment Enforcing an Agency Order in

Part 7. Rule 20, Fed.R.App.P. – Applicability of Rules to the Review or Enforcement of

an Agency Order 8. Rule 33, Fed.R.App.P. – Appeal Conferences 9. Rule 34, Fed.R.App.P. – Oral Argument

10. Rule 26, Fed.R.App.P. – Computing and Extending Time 11. Local Rule 12.1 Appeal Docketing Requirements in Civil and Agency Cases 12. Local Rule 12.3 Acknowledgment and Notice of Appearance in All Appeals 13. Local Rule 24.1 Motion for In Forma Pauperis Status and Related Relief 14. Local Rule 25.1 Case Management/Electronic Case Filing (CM/ECF) 15. Local Rule 31.2 Briefing Schedule; Regular and Expedited Appeals Calendars 16. Local Rule 33.1 Civil Appeals Management Plan 17. Local Rule 34.1 Oral Argument and Submission on Briefs 18. Local Rule 34.2 Non-Argument Calendar 19. Local Rule 46.1 Attorney Admission

List of Addresses for Service of a Petition for Review Eric H. Holder U.S. Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington D.C. 20530-0001 Thomas W. Hussey, Director Office of Immigration Litigation U.S. Department of Justice / Civil Division 1331 Pennsylvania Avenue, NW Washington DC, 20004 Office of the Chief Counsel, New York Immigration and Customs Enforcement 26 Federal Plaza New York, NY 10278

NUTS AND BOLTS IN PRESENTING PETITIONS FOR REVIEW TO THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT

(Updated January 27, 2011)

By Matthew L. Guadagno

Introduction

It is very easy to initiate a petition for review. However, fully litigating a petition for review isvery difficult and time consuming. You should give careful thought before taking a case intofederal court. Only a very small percentage of the appeals to the Board of Immigration Appealsresult in precedent decisions. By comparison, the Courts of Appeals have a much higherpercentage of cases that result in precedent decisions. When you take a case into the Court ofAppeals, you should give some thought as to whether you risk the danger of making badprecedent. Spending thousands of dollars on a federal case that results in bad case law does notbenefit your client’s best interests. You should only be litigating a case in the Court of Appeals,if you think that it is meritorious. You should also consider the impact that your case could haveon other aliens, if there were to be a precedent decision. If your case could impact others, youshould look into whether there are any non-profit organizations that would be interested inproviding an amicus curiae brief.

Federal appeals are governed by the Federal Rules of Appellate Procedure (“Fed. R. App. P.”) When engaging in federal practice, you should obtain the local rules of whatever court beforewhich you are practicing. You can now find the local rules on the federal court’s web pages. The web page for every federal court can be accessed at: http://www.uscourts.gov. The web pagefor the U.S. Court of Appeals for the Second Circuit is: http://www.ca2.uscourts.gov. TheSecond Circuit’s website contains both the Fed. R. App. P. and the Local Rules of the SecondCircuit. Over the last year, the Second Circuit has made dramatic changes to its Local Rules. The litigation of a petition for review is very different from the way it was done two years ago. These changes are discussed below.

In order to practice before any of the circuits of the U.S. Court of Appeals, you must be admittedto that circuit. Each circuit has their own admissions rules and forms, which can be found on1

their respective website. The Second Circuit’s website contains the form for admission to theSecond Circuit. Second Circuit Local Rule 46.1 provides the rules for admission to the SecondCircuit. Admission to the Second Circuit must be renewed every five years. 2

The U.S. Court of Appeals for the Second Circuit was located at the Thurgood MarshallCourthouse, 40 Foley Square, New York, New York 10007. However, the courthouse at 40Foley Square is currently closed due to renovations. The Second Circuit is temporarily located at

Fed. R. App. P. 46(a)(1).1

Second Circuit Local Rule 46.1(a)(2).2

http://www.uscourts.gov/courtlinks/index/cfm.

http://www.ca2.uscourts.gov/.

the Daniel Patrick Moynihan U.S. Courthouse, 500 Pearl Street, New York, New York 10007. The clerk’s office is located on the third floor. Oral arguments are being held in the ceremonialcourt room on the ninth floor. In order to get to the ceremonial court room, you must take theelevator bank by the Worth Street entrance. The Pearl Street elevator bank does not provideaccess to the ceremonial court room, unless you go to the eighth floor and switch elevators. Therenovations are expected to last several years. The Second Circuit continues to use the ThurgoodMarshall Courthouse as its mailing address. Jurisdiction - Can the Court hear your case?

On May 11, 2005, the President signed the REAL ID Act of 2005 (“REAL ID Act”), Pub. L. 109-13, 119 Stat. 231 (May 11, 2005). The REAL ID Act has dramatically changed how cases arelitigated in federal courts. The REAL ID Act § 106 amends the federal jurisdiction provisions ofImmigration and Nationality Act (“INA”) § 242, 8 U.S.C. § 1252. INA § 242 relates to review oforders of removal. Thus, it is believed that the REAL ID does not affect federal actions that donot relate to removal orders. Under the REAL ID Act, all challenges to removal orders are nowdone by petition for review with the appropriate Court of Appeals. Removal orders can nolonger be challenged by habeas corpus or other federal action, such as mandamus.

Petitions for review can only be filed from a “final order of removal.” When the Board of3

Immigration Appeals orders remand merely to comply with security checks pursuant to 8 C.F.R.§ 1003.1(d)(6), that is considered a final order of removal from which a petition for review maybe filed. Filing a motion to reconsider or motion to reopen with the Board of Immigration4

Appeals does not extend the time to file the petition for review. Orders denying motions to5

reconsider and reopen are viewed as separate and distinct orders from orders denying an appeal. 6

You must file separate petitions for review for each order.7

The claims that you intend to raise in the petition for review must be exhausted administratively. 8

An argument that is a “subsidiary legal argument” of an argument raised administratively isconsidered to have been exhausted. The failure to exhaust remedies can be waived by the9

INA § 242(a)(1), 8 U.S.C. § 1252(a)(1).3

Alibasic v. Mukasey, 547 F.3d 78, 82-83 (2d Cir. 2008).4

Stone v. INS, 514 U.S. 386, 405 (1995).5

Id.6

Id.7

INA § 242(d)(1), 8 U.S.C. § 1252(d)(1).8

Gill v. INS, 420 F.3d 82, 87-88 (2d Cir. 2005)9

2

Government, if the Government fails to raise exhaustion as a defense. 10

INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), provides a list of situations where the Court ofAppeals does not have jurisdiction over a petition for review: (1) when an order pursuant to INA§ 235(b)(1) is being challenged; (2) when a discretionary decision is being challenged; and (3) when an alien is “removable by reason of having committed a criminal offense covered insection 212(a)(2) or 237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date ofcommission, otherwise covered by section 237(a)(2)(A)(I).” However, there is an exception tothis jurisdiction stripping provision. Regardless of any jurisdictional stripping provision, theCourt of Appeals retains jurisdiction over any claims involving “review of constitutional claimsor questions of law.” There has been a lot of litigation over what constitutes a “question of11

law.” The Second Circuit has held that this term does not just refer to questions of statutory andregulatory interpretation, but also “where [a] discretionary decision is argued to be an abuse ofdiscretion because it was made without rational basis or based upon a legally erroneousstandard”12

Electronic Case Filing and the Second Circuit

Most federal courts have a system of electronic case filing (“ECF”) to file documents. TheSecond Circuit’s ECF procedures are found in the Second Circuit’s Local Rules 25.1 and 25.2. Courts that require ECF usually require that documents be submitted in portable documentformat (“PDF”). The Second Circuit also requires that all documents be submitted in PDFformat. In light of the Second Circuit’s ECF requirements, it is highly recommended that you13

obtain a program that allows you to create and edit PDF files, such as Adobe Acrobat Standard. This software is not only needed to convert your word processing document to a PDF file, it isalso necessary to: (1) renumber the pages of your PDF document; (2) combine PDF documents;(3) save forms that you fill out on the Second Circuit’s website into PDF; and (4) make scanneddocuments into text searchable PDF. The Second Circuit website provides instructions onworking with PDF files.

The Second Circuit has different filing rules for cases filed before January 1, 2010 and cases filedafter January 1, 2010. The ECF rules for cases filed before January 1, 2010 are found in14

Zhong v. U.S. Dep’t. of Justice, 480 F.3d 104, 123 (2d Cir. 2006).10

INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)11

Xiao Ji Chen v. U.S. Dep’t. of Justice, 471 F. 3d 315, 329-30 (2d Cir. 2006).12

Second Circuit Local Rule 25.1 and 25.2. 13

Second Circuit Local Rule 25.1(a)(2) and 25.2(a)(2). 14

3

Second Circuit Local Rule 25.2. The general rule is that for these old cases, any document thatyou file with the clerk must also be sent via e-mail to the clerk in PDF at:[email protected]. For old rule cases, the Joint Appendix and Special Appendixmay be submitted to the clerk on a CD-ROM. For old rule cases, the signed paper document isconsidered the original document. For old rule cases, you must still serve your adversary with a15

hard copy of the document that you file with the court and include a certificate of service that youhave done so.

The ECF rules for cases filed after January 1, 2010 are found in Second Circuit Local Rule 25.1. Under the rules for new cases, all documents, except for petitions for review, are filed by logginginto Second Circuit website and uploading the document in PDF. You will need to register withthe Second Circuit as a filing user with Public Access to Electronic Documents (“PACER”) toobtain a password to login and upload documents. Merely having a PACER account is not16

enough. A regular PACER account only provides access to federal court docket sheets via theInternet. A regular PACER account is not free and you must pay a nominal fee in order to use17

PACER to view dockets. However, there is no fee to upload documents on a filing user account. With the ECF system for new cases, once you are a registered filing user, you receive e-mailswhen there are updates on your case and you can log into PACER to view filed documents.

To file a document using ECF, you must login and then indicate the docket number of the caseyou want to file a document. Before you can upload the document, you will have to indicate theparty that you represent, as well as select the type of document you are filing from a list ofdocuments. Before you finish uploading the document, you are asked to check a box that willserve your adversary electronically. Under the ECF procedures for new cases, by registering as afiling user, you consent to electronic service. Thus, not only are you informed of updates in18

your case, but your adversary is as well. As long as your adversary is a registered filing user, youdo not have to serve you adversary with any paper copy of a PDF that you upload. When you19

upload a PDF, an electronic receipt is displayed on the screen. The date and time of the receipt isthe official time of filing.20

Second Circuit Local Rule 25.2(b)(4).15

Second Circuit Local Rule 25.1(b)(1). You can register as a PACER filing user at:16

https://www.pacer.gov/psco/cgi-bin/cmecf/ea-regform.pl.

You can register for PACER at: 17 http://pacer.psc.uscourts.gov/register.html.

Second Circuit Local Rule 25.1(h)(1).18


Second Circuit Local Rule 25.1(d)(1).20

4

mailto:[email protected].

https://www.pacer.gov/psco/cgi-bin/cmecf/ea-regform.pl.

http://www.pacer.psc.uscourts.gov/register.html.

Since under the rules for new cases, the PDF that is uploaded is considered to be the original, thelogin is considered to be a signature. Thus, a manual signature is not necessary. 21 22

Traditionally, ECF documents are signed with an electronic signature, which consists of typing“/s/” before the person’s name (i.e., /s/Matthew Guadagno). Except for petitions for review,briefs, joint and special appendices, and oversized documents (e.g., motions, petitions for panelrehearing and rehearing en banc), paper copies are not required unless requested by the clerk. 23

By eliminating the requirement of a manual signature, it is not necessary to sign and scan thedocuments. Documents that you draft on your word processor should not be scanned, butconverted to PDF using software like Adobe Acrobat Standard, because a scanned file is largerthan a converted file. Also, the Second Circuit requires that PDF documents be “textsearchable.” This means that when you view the PDF file, you can conduct word searches on24

the document. If you convert your word processing file to PDF, it is usually made textsearchable automatically. However, when you scan a document or combine PDFs, it is notalways automatic that the newly created PDF will be text searchable. If you have opticalcharacter recognition (“OCR”) software, your scanner can make text searchable PDFs. AdobeAcrobat Standard has the ability to scan a PDF document that is not text searchable and make ittext searchable, but the process can be time consuming.

The Second Circuit has forms on its website that must be submitted during the course oflitigating a petition for review. The forms on the Second Circuit’s website can be filled in on-line; however, you will need a program like Adobe Acrobat Standard, in order to save the filledout form as a PDF and upload it. Moreover, it may be necessary to use a program like AdobeAcrobat Standard to make the PDF text on a saved form searchable. When you file a motionwith exhibits, the on-line filing system will permit you to submit the exhibits as separate PDF. However, many documents that you file on-line will not have exhibits, but attachments. Thesedocument should be submitted as a single PDF. For instance, the petition for review and FormC-A both require that the decisions from the Board of Immigration Appeals be attached. Aprogram like Adobe Acrobat Standard will enable you to take two PDF files, such as the Form C-A and the decision of the Board, and combine them. There are three exemptions for new cases to the ECF requirement. The first is if the party25

submits a motion showing “extreme hardship or exceptional circumstances” that is granted by the

Second Circuit Local Rule 25.1(f).21

Second Circuit Local Rule 25.1(e).22

Second Circuit Local Rule 25.1(g).23

Second Circuit Local Rule 25.1(e).24

Second Circuit Local Rule 25.1(j).25

5

Court. The second is if sealed document is going to be submitted. The third is when an26 27

oversized electronic file is going to be submitted. If a PDF file cannot be broken down into less28

than ten files that are less than ten megabytes, the document may be submitted on CD-ROM orDVD. If you file a CD-ROM or DVD with the Second Circuit, then you must serve theGovernment with the CD-ROM or DVD.

The Drop Box

The federal courts provide a unique service, which most courts do not: the drop box. While theclerk’s office is only open until 5:00 P.M., the U.S. Courthouse is open 24 hours a day, 7 days aweek. Located in the lobby of the U.S. Courthouse is the drop box. The drop box at the 500Pearl Street court house is found at the court’s entrance on Worth Street, not the entrance onPearl Street. For the documents that the Second Circuit still requires that you file a paper copy,you can file those papers at any time utilizing the drop box. On top of the drop box is a timestamp machine. Your papers will be considered filed on the day that they are stamped. Thus, ifyou miss the 5:00 P.M. filing with the clerk’s office, you can still timely file your papers, if youmake it to the drop box before midnight. The Second Circuit has a special form, the “NightDepository Form,” for submitting documents via the drop box. The form is kept on top of thedrop box and is also available on the Second Circuit’s web page. When you file papers via thedrop box, you should stamp a conforming copy of the document for your records, so that youhave proof of filing.

Filing a Petition for Review

You need to file a petition for review within thirty days of the Board’s decision that you arechallenging. The petition for review must be received by the Court of Appeals by the thirtieth29

day. The deadline for filing is extended if the thirtieth day falls on a Saturday, Sunday or legal30

holiday. There is no mail rule, unless the petition is filed by a pro se detained alien. The31 32

Second Circuit Local Rule 25.1(j)(1).26



INA § 242(b)(1), 8 U.S.C. 1252(b)(1). 29

See, e.g., Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir.2001) (noting that “compliance30

with the time limit for filing a petition to review the BIA's final order is a strict jurisdictionalprerequisite”).

Fed. R. App. P. 26(a)(3).31

Fed. R. App. P. 25(a)(2)(C); Arango-Aradondo v. INS, 13 F.3d 610, 612 (2d Cir.1994). 32

6

petition for review should be filed with the Court of Appeals in the Circuit where theimmigration judge completed the proceedings. 33

A petition for review is a simple document that usually is no longer than one page. The SecondCircuit web page contains a sample petition for review. Essentially, all that is required is to: (1)indicate that you are challenging the Board’s order; (2) provide the date of the Board’s order; (3)that no other court has reviewed the Board’s order; and (4) attach the Board’s order. It is also34

advisable to indicate: (1) the jurisdictional provision you are seeking review under; and (2) thatyou are seeking review in the circuit where the immigration judge heard the case. A certificate ofservice is required as well. 35

You should serve a copy of the petition for review on: (1) the Office for Immigration Litigation(“OIL”); (2) the Attorney General; (3) the Secretary of the United States Immigration and36 37

Customs Enforcement (“ICE”); and (4) the Field Director of ICE for the district responsible for38

executing the removal order. This is the only document that must be served upon all four39

individuals. After the petition for review is filed, all future documents only need to be servedupon OIL via ECF. 40

At the top of your petition for review should be a caption. In an appeal from district court, the41

parties would be appellants and appellees. However, because this action is a petition for review,and not an appeal from district court, the parties are considered the petitioner (your client) and

INA § 242(b)(2), 8 U.S.C. § 1252(b)(2).33

Fed. R. App. P. 15(a)(2); INA § 242(c), 8 U.S.C. § 1252(c).34

Fed. R. App. P. 15(c).35

Thomas W. Hussey, Director, Office of Immigration Litigation, Civil Division,36

Department of Justice, Liberty Square Building, 450 5th Street N.W., Washington, DC 20001.

Eric H. Holder, Attorney General of the United States, U.S. Department of Justice37

Civil Division, Appellate Staff, 10th Street, N.W. and Constitution Avenue, Washington, DC 20530.

John Morton, Director, U.S. Immigration and Customs Enforcement38

425 I Street, N.W. Washington, DC 20536.

In New York City, this would be Christopher Shanahan, Field Office Director, U.S.39

Immigration and Customs Enforcement, 26 Federal Plaza, 11th Floor, New York, NY 10278.

OIL is presumptively handling all new petitions for review in New York. 40

Fed. R. App. P. 15(a)(2).41

7

the respondent (the Attorney General). You should spell your client’s name in the petition for42

review the exact same way that it is spelled in the Board’s decision. While it is unfortunate thatmany times the client’s name is spelled wrong in court documents, until the court officiallyorders the record changed, the caption must continue to use the official spelling, even if it isincorrect. If the case was consolidated before the Board, then you should list all of the familymembers in the caption. If the Board issued separate orders in a consolidated matter, then you43

have to file separate petitions for review and have the matter consolidated. The caption should44

include the “A” number of your client(s). Pursuant to INA § 242(b)(3)(A), 8 U.S.C. § 1252(b)(3)(A), the proper respondent to a petitionfor review challenging an order of removal is the Attorney General. REAL ID Act § 106(d), haschanged the respondent in transition cases (i.e., deportation and exclusion proceedings) to theAttorney General from ICE. 45

The ECF procedure for a petition for review is different from other documents because it is thedocument that initiates the action. A petition for review is initiated by e-mailing a PDF of thepetition for review to: [email protected]. The subject box of the e-mail should46

indicate: (1) the name of the party submitting the document and their designation (i.e.,petitioner); (2) that a petition for review is being submitted; and (3) the date the document wasfiled. The time that the e-mail is sent is considered to be the time of filing. All ECF should be47 48

Fed. R. App. P. 20.42

Fed. R. App. P. 15(a)(1).43

The Second Circuit staff will often consolidate separate petitions for review filed by44

family members sua sponte. However, if the Court does not consolidate sua sponte, then youmust file a motion to consolidate.

Exclusion and deportation cases used to be governed by Illegal Immigration Reform and45

Immigrant Responsibility Act of 1996 (the “IIRIRA”) § 309(a)(4), Pub. L. 104-208, 110 Stat.3009 (September 30, 1996), which provides transitional rules for pre-IIRIRA cases. UnderIIRIRA’s transitional rules, petitions for review of orders of exclusion and deportation weregoverned by former INA § 106(a), 8 U.S.C. § 1105a (1996). Under former INA § 106(a) theproper respondent to a petition for review was the former Immigration and NaturalizationService. However, on November 25, 2002, the President signed into law the Homeland SecurityAct of 2002 (Pub. L. 107-296), which created the new Department of Homeland Security(“DHS”) and replaced the INS with the ICE.

Second Circuit Local Rule 25.1(c)(2).46

Second Circuit Local Rule 25.1 does not actually address what the heading of the e-mail47

should state. However, Second Circuit Local Rule 25.2(c)(1), which applies to actions filed prior

8


e-mailed to your adversary, as well. Initial filings should be e-mailed to the Government at:49

[email protected].

The filing fee for a petition for review is $450. The filing fee should be paid by check or moneyorder. According to the Second Circuit’s website, the check should be made out to: UnitedStates Court of Appeals for the Second Circuit. An original petition and four copies of thepetition for review should be submitted to the clerk with the filing fee. 50

The Docketing Letter, Acknowledgment Form, and Notice of Appearance

After you file your petition for review, you will receive an e-mail from the Second Circuitconfirming that your petition for review has been docketed. This e-mail will inform you of yourdocket number. When calling the Court or the U.S. Attorneys’ Office or OIL to discuss yourcase, you should be prepared to tell them the docket number. The U.S. Attorney’s Office, OIL,and the Court are not organized based upon the A number.

After receiving the confirmation e-mail, you will receive a docketing letter. The docketing letterwill include a copy of the docket with an official caption and official short caption. The officialcaption should be used on the brief, joint appendix, and reply brief. The short caption can beused on any motion or correspondence. You should look the docketing letter over carefully tomake sure that it is correct. Included with the docketing letter is an Acknowledgment and Noticeof Appearance Form, which you should return within fourteen days of receipt of the docketingletter. These documents are filed via ECF. If there are any errors with either caption, you51

should indicate it on the form. If you fail to use the official caption on any of your papers, theycan be rejected, so it is important that you correct any errors in the caption.

The Pre-Argument Statement, Form C-A

The Second Circuit requires that a Pre-Argument Statement, Form C-A be submitted withinfourteen days of the filing of the petition for review. Form C-A is available on the Second52

to January 1, 2010, indicates that the above protocol should be utilized when e-mailing adocument to the Second Circuit.

Second Circuit Local Rule 25.1(d)(2).48


Fed. R. App. P. 15(c)(3).50

Second Circuit Local Rule 12.3(a).51


9


Circuit’s website. This form provides background information about the case to assist the Courtin processing your case. If you miss the deadline, then you must file a motion to accept a latefiled Form C-A.

You must attach two addendums to Form C-A. Addendum A consists of: (1) a summary of thenature of the action; (2) the result below; and (3) a copy of the relevant orders resulting in thepetition for review. Addendum B consists of: (1) the relief requested; (2) the proposed issue; and(3) the applicable standard of review. You should give a lot of thought to your proposed issue. This will affect how your adversary, as well as Staff Counsel, views your case going into theCivil Appeals Management Plan (“CAMP”) conference, which is discussed later in this article.

There are two other very important questions on Form C-A. In Part B, the form asks the type ofcase and gives two different options: (1) includes denial of an asylum claim; and (2) does notinclude the denial of an asylum claim. This is important because the Second Circuit hasimplemented a Non-Argument Calendar (“NAC”) for asylum, withholding of removal andConvention Against Torture cases. Cases that are not subject to the NAC are subject to the 53

regular argument calendar (“RAC”). NAC cases do not automatically receive CAMPconferences or oral argument. Part B also requests whether you have a motion pending before54

the Board or whether there are either related cases or cases with the same issue. This isimportant for purposes of consolidation.

It is not necessary to file a paper copy of Form C-A with the Second Circuit. All filing is donevia ECF. The entire Form C-A, including attachments, should be combined into a single PDFfile that should be text searchable.

Motions

Motions in the Second Circuit must use form T-1080, Motion Information Statement. This55

form can be found on the Second Circuit’s website. Fed. R. App. P. 27 and Second Circuit LocalRule 27.1 address motions. The Second Circuit requires that a motion be supported by anattorney affirmation or an affidavit. The motion should contain your legal argument and make56

reference to your affirmation or affidavit. The affirmation or affidavit should attest to the facts57

of the case, as well as authenticate any attached documents. The new local rules now require that





Fed. R. App. P. 27(a)(1)(B).57

10

your motion indicate: (1) that the movant has notified opposing counsel, or why the movant wasunable to do so; (2) opposing counsel’s position on the relief requested; and (3) whetheropposing counsel intends to file a response to the motion. A certificate of service should be58

attached. In light of the new rules, the certificate of service should indicate that your adversary59

is a registered ECF user and that by filing the motion using ECF, your adversary has been served. The motion must be filed via ECF and submitted as a single PDF file. The motion should not60

exceed twenty pages without obtaining permission from the Court to submit an oversizedmotion. You only need to file a paper copy of the motion with the clerk, if the motion exceeds61

fifty pages. If the motion exceeds fifty pages, then an original and three copies of the motion62

should be submitted. 63

There are two kinds of motions: procedural and substantive. Procedural motions are motions64

for things like extensions of time to file briefs, permission to file oversized briefs, andconsolidation of more than one petition for review. Substantive motions are for things like staysof removal and stays of voluntary departure. Oral argument is not needed procedural motions. Oral argument could occur for substantive motions if requested, but is not required.

Stay of Removal

Pursuant to INA § 242(b)(3)(B), 8 U.S.C. § 1252(b)(3)(B), filing a petition for review does notstay an alien’s removal, unless the court orders a stay of removal. The Government and manyCircuits take the view that because a stay of removal is an equitable remedy you should not seeka stay of removal unless your client is facing imminent removal. If your client is detained at thetime of filing the petition for review, then you should file a motion for a stay of removalimmediately with the petition for review. If your client is not detained, then there is noimmediate need for a stay of removal. As a matter of practice, the Second Circuit does notrequire that removal be imminent to seek a stay of removal, so that you may file a motion for astay of removal with your petition for review, even if your client is not facing imminent removal.

Second Circuit Local Rule 27.1(b).58

Fed. R. App. P. 25(d).59

Second Circuit Local Rule 25.2(c)(3).60

Fed. R. App. P. 27(a)(1)(C)(vi).61



Second Circuit Local Rule 27.1(c).64

11

If your client receives a surrender notice (a.k.a., “bag and baggage” letter), then you shouldprobably file the stay motion prior to the surrender, if you have not already done so. However,ICE in New York does not usually take aliens into custody with pending petitions for review. 65

You can usually go to the surrender with your client without filing the motion and merelyprovide proof that a petition for review is pending at the surrender. Typically, an alien with acase pending in federal court will be placed on supervised release by ICE at 26 Federal Plaza. Asa quid pro quo for not taking your client into custody, ICE, usually requires that the aliensurrender a valid passport or proof that a passport has been requested from the appropriateconsulate. On the plus side, once your client is placed on supervised release, he or she willbecome eligible for employment authorization based upon being on supervised release. 66

The Second Circuit has worked out an agreement with the Government, which is called theForbearance Policy. Under the Forbearance Policy, the Government agrees that once the SecondCircuit informs the Government that a stay motion has been filed with the Court, the alien willnot be deported until a decision has been made upon the motion. Thus, you do not need an67

immediate order staying your client’s removal upon the filing of the motion.

Your affirmation should indicate the emergency conditions that require the court to issue a stayof removal. Your affirmation should have whatever documents from the record that are relevant68

to the motion that are within your possession. At a minimum, you should attach the relevant69

decisions. The motion should argue that your client is entitled to a stay of removal based uponthe traditional criteria for granting an injunction:

1. Likelihood of success on the merits.

2. Irreparable injury if a stay is denied.

3. Substantial injury to the party opposing the stay if one is issued.

Keep in mind that a stay of removal does not entitle your client to be free from U.S. ICE65

custody. A stay of removal merely prevents U.S. ICE from deporting your client. INA §241(a)(2), 8 U.S.C. § 1231(a)(2) authorizes U.S. ICE to detain aliens with final orders ofremoval, so that whether or not your client will remain free is a matter of discretion by U.S. ICE

See, 8 C.F.R. § 274a.12(c)(18).66

If you litigate outside of the Second Circuit, you should confirm whether or not the67

Forbearance Policy is in place within that Circuit.

Fed. R. App. P. 18(a)(2)(A).68

Fed. R. App. P. 18(a)(2)(B)(iii).69

12

4. The public interest. 70

OIL has stated that it has a policy of selectively opposing those motions for a stay of removal thatit finds to be “perfunctory or facially inadequate.” In light of the concurring opinion of Justice71

Kennedy in Nken v. Holder, 129 S.Ct. 1749 (2009), more thought needs to go into thepreparation of a motion for a stay of removal than was done in the past. In Justice Kennedy’sconcurrence in Nken, he observed that the jurisdictional bar of former INA § 106(a), 8 U.S.C. §1105a (1996) (repealed), on petitions for review from an alien’s deportation was repealed byIIRIRA. Justice Kennedy then opined that if deportation no longer renders petitions for review72

moot, then “[t]his change should mean that obtaining a stay of removal is more difficult.” 73

Obviously, attorneys for the Government have read Justice Kennedy’s concurrence and are nowopposing motions for stays on this basis.

When you prepare your stay motion, you should put more thought and preparation into thediscussion of “irreparable harm.” If the petition for review involves asylum, withholding ofremoval, or relief under the Convention Against Torture, then your client should be able todemonstrate irreparable harm, if removed, since removal could result in either persecution ortorture. If the petition for review does not involve asylum, withholding of removal, or reliefunder the Convention Against Torture, then you should provide evidence that there will behardship if your client is deported. For example, you could provide affidavits from your clientand client’s family members about the hardship that would occur from deportation. Finally, youshould argue that in evaluating whether the standard for a stay has been met, the Court shouldutilize the “sliding scale” method. Under the sliding scale method, if a litigant makes a strong74

showing of one of the factors, such as likelihood of success, then a lower showing of otherfactors, such as irreparable harm, can be offset by the stronger showing of other factors. 75

Extension Requests

Extension requests are done by motion. Under the new rules, the Second Circuit does not76

Mohammed v. Reno, 309 F.3d 95, 100-102 (2d Cir. 2002); Nken v. Holder, 129 S.Ct.70

1749, 1751-52 (2009).

Nen Di Wu v. Holder, 617 F.3d 97, 99 (2d Cir. 2010).71

129 S.Ct. at 1763.72

Id.73

Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006). 74

Id.75


13

appear to look upon extension requests as favorably as the Court did in the past. The SecondCircuit now requires a showing of “extraordinary circumstances” for an extension request. The77

Second Circuit’s Local Rules indicate that examples of extraordinary circumstances are “seriouspersonal illness or death in counsel’s immediate family.” A motion for an extension of time to78

submit a brief should be submitted “as soon as practicable after the extraordinary circumstancearises.” 79

The CAMP Conference

If you have an RAC case, you will receive an e-mail notification informing you that a CAMPconference has been scheduled and requesting that you confirm that you are available at that dateand time. Due to the massive amount of filings in the Second Circuit, NAC cases do notautomatically get CAMP conferences. If a CAMP conference is not scheduled because you havea NAC case and you wish to have a CAMP conference, you may request a CAMP conference byfaxing a letter to the Office of Staff Counsel. You should include the decisions from the Board80

and the immigration Judge with your fax. The Government should be served with a copy of theletter.

A CAMP conference is a meeting between the parties and a Staff Counsel from the SecondCircuit. There are two reasons for a CAMP conference: (1) to attempt settlement; and (2) to testyour arguments. The purpose of the CAMP conference is not to argue with people, even ifsometimes it seems like this is the purpose. Try to avoid getting into arguments at the CAMPconference. You should try to be as low key as possible. The last thing that you want to do ismake an enemy at the CAMP conference because then you run the risk of having someone with avendetta against you who makes beating you a personal matter.

CAMP conferences are typically done telephonically via conference call. Counsel for petitionerno longer initiates the call. The Second Circuit gives out a phone number and PIN number forboth parties to call. You should find out who represents the Government and confer with thatperson prior to the conference. At a minimum, you should make sure that the Governmentattorney is aware of the conference call.

In the event that you have one of the rare CAMP conferences where you must appear in person,you should arrive early. Due to the renovations at 40 Foley Square, CAMP conferences arecurrently being held at the Woolworth Building, 233 Broadway, 6th Floor, New York, NY

Second Circuit Local Rule 27.1(f)(1).77

Id.78

Second Circuit Local Rule 27.1(f)(3).79

Second Circuit Local Rule 33.1(d).80

14

10007. There are special security measures in place at the Woolworth Building. The securityguards at the main level will direct you to a floor where the U.S. Marshals screen visitors to theSecond Circuit. The U.S. Marshals then give a pass, so that visitors can go to the 6th floor,where the CAMP Conferences are held. The process to enter the building could take as long as ahalf an hour.

Settlement

In order to settle, you need a means for settlement. An immigration case is not like a personalinjury matter where the parties can haggle over a monetary amount of damages. Basically, theGovernment wants to deport your client and your client wants to remain in the United States. There is not a lot of middle ground. Here are some possible situations where you can pursuesettlement in an immigration matter:

1. If you have a case involving either asylum, withholding or relief under theConvention Against Torture, has there been a change in country conditions?If so, the case can be remanded for consideration of the new conditions.

2. Has there been a significant change in the law since the Board rendered itsdecision? If so, the case can be remanded for consideration of the change in law.

3. Does the Board’s decision adequately address the issues raised in the petition forreview? It is well known that the Board is disposing of many appeals by summaryorders. Also, many of the Board’s decisions are not detailed. It is very possiblethat you may be raising an issue that the Board has not fully addressed. If so, thecase should be remanded for the Board to address the issue.

4. Is the client now eligible for adjustment of status, but for the removal order? Insome instances, the Government will stipulate to dismiss the petition for reviewwith leave to reinstate pending the filing of a joint motion to reopen with the ICE.In transition rules cases, the Government sometimes agrees to a grant of voluntarydeparture nunc pro tunc, so that the alien can consular process.

5. Did you file a motion that is still pending at the Board? If so, then theGovernment may be willing to stipulate to dismiss the petition for review withleave to reinstate pending the outcome of the motion. If the motion is granted, thepetition for review will become moot. If the motion is denied and you file asecond petition for review, the second petition will be consolidated with thefirst. Thus, it does not pay for the case to go forward with a pending motion at81

Pursuant to INA§ 242(b)(6), 8 U.S.C. § 1252(b)(6), if you file a petition for review of81

the Board’s dismissal of an appeal and denial of either a motion to reopen or reconsider, bothcases should be consolidated.

15

the Board. 82

Do not be frightened if it is suggested that your case should be dismissed without prejudicepending the outcome of an event. Once a briefing schedule is issued, this is the most practicalway to put a case on hold. If you enter into such an agreement with the Government, thestipulation must contain a date by which reinstatement must occur as a “fail safe” in case thecondition never occurs or takes too long. If the deadline approaches without the event83

occurring, you must either write a letter to the clerk reinstating the case or submit a supersedingstipulation that extends the date to reinstate. If you do not submit a reinstatement letter or a84

superseding stipulation by the deadline, the case will be dismissed. The Second Circuit’s websitecontains a sample stipulation dismissing a petition for review without prejudice.

If you enter into an agreement where your petition for review is dismissed without prejudice, youshould either file a motion for a stay of removal prior to signing the stipulation or have aprovision in the stipulation that provides for a stay of removal. This is because while the case isdismissed without prejudice, you will not be able to seek a stay of removal, should theGovernment seek to remove your client, because the case is not active before the Court. Thus,you need to make arrangements for the stay of removal while the case is active.

Test Your Arguments

You should use the CAMP conference to learn the strengths and weaknesses of your case. Yourgoal should be to get the Government attorney to talk about your case in as much detail aspossible. Get the Government attorney to talk about how the Government will defend the action. By getting them to discuss how they will defend the action, you will get a better idea of how todevelop the arguments in your brief.

The Certified Administrative Record

After the petition for review is filed, the Government has forty days to prepare and submit thecertified administrative record (“CAR”). The CAR is a copy of the complete Executive Office85

If the Government refuses to enter into a stipulation to dismiss without prejudice82

pending a motion at the Board or some other condition, then you could file a motion with theCourt to suspend briefing pending the outcome of the motion with the Board or other condition.

Second Circuit Local Rule 42.1.83

Id.84

Fed. R. App. P. 17(a).85

16

for Immigration Review record of your client’s case. You cannot prepare your brief and joint86

appendix without a CAR. Under the current procedure, the Government is submitting a CD-ROM to the Second Circuit that contains the CAR. Upon receipt of the CD-ROM, the SecondCircuit sends a letter to the parties that the CD-ROM has been received. When the CAR arrives,you should try to look it over to make sure that it is complete. Generally, the Court does not liketo grant last minute extension requests due to problems with the record that could have beendiscovered earlier.

The Briefing Schedule

Within fourteen days of receiving the CAR, you must file a letter with the Court via ECF settingthe date that you will file the brief and joint appendix. You may select a date up to ninety-one87

days from the date of receiving the CAR. If the record is voluminous or if you would have88

other extreme hardship from only having ninety-one days to submit the brief and joint appendix,the letter may request more time, but you must provide an explanation why the additional time isrequested. It will be up to the Court to decide whether or not to grant the additional time. If89

you do not submit a letter, then the Court will set your due date forty days from the filing date ofthe CAR. 90

The Brief

The preparation of the brief is governed by Fed. R. App. P. 28, 31 and 32 and Second CircuitLocal Rules 28.1, 31.1, and 32.1. A brief to a Court of Appeals has many more requirementsthan a brief to the Board of Immigration Appeals. The preparation of a Court of Appeals brief islikely to be a shocking experience to someone who has never prepared one before due to all ofthe rules and requirements. One of the most difficult requirements is that the PDF of the briefmust have sequential paging, so that if you use the “go to” feature of Adobe Acrobat Reader, thepages of the PDF will correspond to the pages of brief. Normally, the table of contents and91

table of authorities have separate paging from the rest of the brief usually using lower case romannumerals. This will cause the page numbering in the PDF to be different from the pagenumbering of the brief. You can adjust the page numbering of the PDF using a program like

Fed. R. App. P. 17(b)(1)(A).86

Second Circuit Local Rule 31.2(a)(1)(A).87

Id.88

Second Circuit Local Rule 31.2(a)(1)(D).89

Second Circuit Local Rule 31.2(a)(1)(A).90


17

Adobe Acrobat Standard. Alternatively, you can make the cover page the first page and not usespecial numbering for the table of contents and table of authorities.

The opening brief in a petition for review has a blue cover. The cover of all of the briefs should92

have the caption and the docket number should be at least one inch. The cover page should93

indicate: (1) the nature of the proceeding (e.g., Petition for Review); (2) that the case below wasbefore the Board; (3) the title of the brief, identifying the party or parties for whom the brief isfiled; and (4) the name, office address, and telephone number of counsel representing the partyfor whom the brief is filed. 94

Fed. R. App. P. 32(a)(5) has a strange rule regarding fonts. If you use a monospaced font (i.e.,courier), your font size may be 12 points. However, if you use a proportionally spaced font (i.e.,Times New Roman), your font size must be at least 14 points.

The page requirements are also complex. According to Fed. R. App. P. 32(a)(7)(A), the openingbrief should be no more than thirty pages. However, according to Fed. R. App. P. 32(a)(7)(B)and (C), you may submit a brief over thirty pages, if your brief is less than 14,000 words and yousubmit a certificate of compliance attesting to this. The Appendix to the Fed. R. App. P. containsa sample certificate of compliance, which is available on the Second Circuit’s website.Briefs are one of the few documents that you must submit paper copies of, in addition to ECF. You must submit six copies of the brief to the Court. Do not staple the briefs. You should95

have them bound. If you do not have a binding machine, this can be done by most professionalcopying offices, such as Kinko’s. The briefs are supposed to lay flat if left open. 96

Failure to comply with the requirements for a brief can result in your brief being rejected. Inrecent years, decisions of the Second Circuit have threatened to sanction immigrationpractitioners for filing briefs that did not comply with Fed. R. App. P. 28. The requirements ofFed. R. App. P. 28 are that a brief contain the following:

1. a corporate disclosure statement if required by Rule 26.1.

2. a table of contents, with page references.

Fed. R. App. P. 32(a)(2).92


Fed. R. App. P. 32(a)(2).94


Fed. R. App. P. 32(a)(3).96

18

3. a table of authorities--cases (alphabetically arranged), statutes, and otherauthorities--with references to the pages of the brief where they are cited.

4. a jurisdictional statement, including:

A. the basis for the district court’s or agency’s subject-matter jurisdiction,with citations to applicable statutory provisions and stating relevant factsestablishing jurisdiction.

B. the basis for the Court of Appeals’ jurisdiction, with citations toapplicable statutory provisions and stating relevant facts establishingjurisdiction.

C. the filing dates establishing the timeliness of the appeal or petition forreview.

D. an assertion that the appeal is from a final order or judgment that disposesof all parties’ claims, or information establishing the Court of Appeals’jurisdiction on some other basis.

5. a statement of the issues presented for review.

6. a statement of the case briefly indicating the nature of the case, the course ofproceedings, and the disposition below.

7. a statement of facts relevant to the issues submitted for review with appropriatereferences to the record (see Rule 28(e)).

8. a summary of the argument, which must contain a succinct, clear, and accuratestatement of the arguments made in the body of the brief, and which must notmerely repeat the argument headings.

9. the argument, which must contain:

A. Petitioner’s contentions and the reasons for them, with citations to theauthorities and parts of the record on which the appellant relies.

B. for each issue, a concise statement of the applicable standard of review(which may appear in the discussion of the issue or under a separateheading placed before the discussion of the issues).

10. a short conclusion stating the precise relief sought; and

19

11. the certificate of compliance, if required by Rule 32(a)(7).

When you draft your brief, you should use Fed. R. App. P. 28 as a checklist. The Second CircuitLocal Rules no longer require that the brief have a Preliminary Statement. Asylum, withholdingof removal and Convention Against Torture cases are automatically placed on the NAC,however, upon reviewing the briefs the Court can order oral argument. If you have a NAC case97

and you want oral argument, it is advisable that you include a statement in the brief about whyyou should have oral argument.

In a petition for review, the statement of the case is redundant because you would put the sameinformation in the statement of the case that you would in the statement of the facts. In a directappeal from a district court case, the statement of the case discusses the procedural history beforethe district court and the facts discusses the facts of the case that was before the district court. Bycomparison, in a petition for review, the procedural history before the immigration judge and theBoard of Immigration Appeals are part of the facts. As such, it is common place to combine thestatement of the facts and the statement of the case into one section in petitions for review. Thestatement of the case should provide the names of the agency officials appealed from and thecitation for the Board’s decision, if reported. 98

After reading your statement of the case and facts, it should be clear what the case is about. Theissues presented should be clear from the statement of the case and facts. The portions of theimmigration judge’s decision and Board’s decision relevant to the issues should be clear. Thefacts should demonstrate that the issues have been exhausted. You should not omit any negativeinformation. If your case is worth bringing, then there should not be any negative informationthat you are afraid to disclose.

The statement of the case and facts should not be argumentative. However, there are things thatyou can do to make the statement of the case and facts persuasive without being argumentative. In providing your procedural history, by indicating the arguments made below, you can subtlyinform the Court of your arguments without actually being argumentative. If the issues involveevidence that was overlooked or ignored, your facts should identify the existence of thisevidence. Also, you should give thought to how you want to tell the story of your case. If yourcase involves a criminal alien, you might want to begin your statement of the case and facts withfavorable background information about your client before you discuss the procedural history ofthe case. If the case involves credibility, then you might want to tell the story so that all of yourclient’s prior consistent statements stand out.

Do not take the summary of the argument for granted. When Judges and court staff speak atcontinuing legal education classes and other events, they often state that one of the first things



20

that they look at in a brief is the summary of the argument.

In drafting the argument, you should consider the following:

1. What decision is under review?

Normally, when a petition for review is before the Court of Appeals, the decision of the Board isunder review. However, in certain circumstances, the decision of the immigration judge isconsidered. For instance, when the Board summarily affirms the decision of the immigrationjudge without issuing an opinion pursuant to 8 C.F.R. § 1003.1(e)(4), the Court of Appealsreviews the immigration judge’s decision as the final agency determination. Also, when the99

Board affirms the immigration judge’s decision in all respects but one, the Court reviews theimmigration judge’s decision “as modified by the BIA's decision-that is, minus the singleargument for denying relief that was rejected by the BIA.”100

Also, when the Board renders separate decisions denying a direct appeal, a motion to reconsiderand/or a motion to reopen, only the decisions that a petition for review have been filed from areunder consideration. 101

2. What are the errors that you must challenge?

In order to win your case, you must address all of the reasons that resulted in your client getting aremoval order. You should make a list of all the reasons why your client lost and then come upwith a response as to why each of these reasons constitutes an error. If your arguments do notaddress all of the reasons why your client lost, then even though the arguments you make arecorrect, the case can be denied due to futility in light of the arguments that you do not address. 102

For example, if an immigration judge denies your client’s asylum claim based upon credibilityand provides three reasons why your client is not credible, then you must not only explain howyour client was credible, but why those three reasons do not demonstrate that your client islacking in credibility.

3. What is the proper standard of review for your arguments?

In developing your argument, you should follow the appropriate standard of review.

Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005).99

Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). 100

Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005); see, also Stone v. INS, 514 U.S. 386,101

405-06 (1995).

Li Hua Lin v. U . S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir. 2006).102

21

Depending upon the circumstances, there are different rules for how the Court will review therecord and determine whether or not your client should prevail in the petition for review.Utilizing the correct standard of review is extremely important. It is not enough just to identifythe standard of review. Your argument should be centered around the standard of review. Among the standards of review that exist are:

A. Substantial Evidence is the standard utilized to review fact finding. The Court103

of Appeals upholds agency fact finding if they are supported by “reasonable,substantial, and probative evidence in the record when considered as a whole.” 104

B. Abuse of Discretion is the standard utilized when the denial of a motion to reopenor reconsider is challenged. The abuse of discretion standard is also utilized105

when a discretionary decision of the Board is reviewed for an error of law. The106

Second Circuit has held that, “[a]n abuse of discretion may be found ... where the[Board’s] decision provides no rational explanation, inexplicably departs fromestablished policies, is devoid of any reasoning, or contains only summary orconclusory statements; that is to say, where the Board has acted in an arbitrary orcapricious manner.”107

C. Chevron deference is the standard utilized when the Board has interpreted anambiguous provision of the INA. Under Chevron, a Court must defer to the108

Board’s interpretation of the INA, if the provision is ambiguous and the Board’sinterpretation is reasonable.109

E. Auer deference is the standard utilized to determine the Board’s interpretation ofits own regulations, and the BIA's interpretation will be “controlling unless plainlyerroneous or inconsistent with the regulation.”110

Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)103

Id.104

Fuentes-Argueta v. INS, 101 F.3d 867, 870 (2d Cir.1996)105

Xiao Ji Chen v. U.S. Dep’t. of Justice, 471 F.3d 315 329 (2d Cir. 2006)106

Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001) 107

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44108

(1984).

Id.109

Auer v. Robbins, 519 U.S. 452, 461 (1997).110

22

F. De Novo review is utilized: (1) when the issue involves an application of fact tolaw where the facts are not in dispute; and (2) when there is a question of law111

that does not involve an area of the Board’s expertise (i.e., retroactivity of astatute or criminal law). 112

G. Unpublished decisions of the Board interpreting the INA are not accordedChevron deference. However, the Second Circuit has yet to address whether113

unpublished decisions of the Board should be reviewed de novo or givendeference pursuant to Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944). Under Skidmore, the Court defers to agency decisions that have the “power topersuade.”

4. Does the REAL ID Act apply?

Asylum applications filed after May 11, 2005, are subject to the REAL ID Act of 2005, Pub.L.No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005). For asylum applications governed by theREAL ID Act, the immigration judge and Board may, considering the totality of thecircumstances, base a credibility finding on an asylum applicant’ demeanor, the plausibility of hisor her account, and inconsistencies, inaccuracies, or falsehoods in his or her statements, withoutregard to whether they go “to the heart of the applicant’s claim.”114

The Joint Appendix

Under the new rules, the Joint Appendix is no longer necessary in NAC cases. These cases115

will proceed on the CAR. For the RAC cases that require a joint appendix, the preparation of116

the joint appendix is also likely to be a shock to most immigration practitioners practicing in theCourt of Appeals for the first time because the Board of Immigration Appeals does not requiresuch a document. Essentially, the joint appendix consists of the CAR. You should also includeyour petition for review. In order to preserve the page numbering of the CAR, you should placethe petition for review at the end. Since the joint appendix is considered a joint document, even

Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).111

INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001); Jobson v. Ashcroft, 326 F.3d 367, 371112

(2d Cir. 2003).

Mendis v. Filip, 554 F.3d 335, 338 & n. 3 (2d Cir.2009).113

INA § 208(b)(1)(B)(iii), 8 U.S .C. § 1158(b)(1)(B)(iii).114

Second Circuit Local Rule 30.1(e)(1).115

Id.116

23

though petitioner is responsible for it, counsel for both sides should be listed on the cover page. The joint appendix gets a white cover page. The cover page of the joint appendix requires a117

caption. You should include a table of contents to the joint appendix. The CAR comes with118 119

a table of contents, however, it is advisable that you substitute the table of contents that comeswith the CAR with a table of contents that you prepare. The table of contents that is providedwith the CAR is not usually sufficiently detailed. The PDF of the joint appendix must havesequential numbers, just like the brief. A joint appendix that exceeds three hundred pages must120

be divided into separate volumes, each of which must not exceed three hundred pages. You121

will need to submit three copies of the joint appendix. 122

Because most CARs are hundreds, maybe even thousands, of pages long, copying costs aretypically incurred in order to prepare the Joint Appendix. If your retainer agreement providesthat the client must pay copying costs, then at the outset of the case, you should make sure thatyour client understands that this additional expense will be billed at a future date.

If the PDF of the Joint Appendix is over ten megabytes and the joint appendix cannot bereasonably divided into ten parts, it may be submitted on CD-ROM or DVD. If you submit a123

CD-ROM or DVD instead of ECF, then you must serve the Government with the CD-ROM orDVD.

The Special Appendix

If your Joint Appendix is over 300 pages, then you are required to submit a special appendix. 124

A special appendix should be attached to the end of the brief, but it may also be submitted as aseparate document. The special appendix should contain the relevant decisions from the Board125

Fed. R. App. 32(b).117








Id.125

24

and immigration judge. You should also provide the full text of all the most relevant statutory126

and regulatory provisions relating to your case in the special appendix. The pages numbers in127

the special appendix should have “SPA” in front of them. If you prepare the special appendix asa separate document from the brief, then it should have a white cover.

Respondent’s Brief

The Government’s opposition brief will have a red cover. 128

The Oral Argument Form

Within fourteen days of the filing of the respondent’s brief, the parties should submit an OralArgument Form indicating whether or not oral argument is sought by each of the parties. The129

form is available on the Second Circuit’s website. The Court will treat the failure to submit theform to imply that a party does not wish oral argument. Whether or not oral argument will be130

held is at the Court’s discretion and requesting oral argument does not guarantee that oralargument will be held.131

The Reply Brief

The reply brief will have a grey cover. The filing of a reply brief is not required, however, it is132

highly advised. A reply brief is filed fourteen days from service of the opposition brief. 133

Fed. R. App. 28(c) requires that the reply brief contain a table of contents and authorities.According to Fed. R. App. P. 32(a)(7)(A), the reply brief should be no more than fifteen pages.However, according to Fed. R. App. P. 32(a)(7)(B) and (c), you may submit a brief over fifteenpages, if your brief is less than 7,000 words and you submit a certificate of compliance attestingto this.

Id.126

Id.127

Fed. R. App. P. 32(a)(2).128

Fed. R. App. P. 34.1(a).129

Id.130

Id.131

Fed. R. App. P. 32(a)(2).132


25

In preparing your reply brief, you should make sure that you respond to all of the Government’sarguments. As you respond to the Government’s arguments, you should cite to the pages in theGovernment’s brief that you are addressing. You should also point out where the Governmenthas failed to address your arguments. A reply brief should not be a repeat of what was in theopening brief. When you do make references to the opening brief, you should keep it short andprovide page citations to the pages in the opening brief that you are referring to.

28(j) Letters

If after briefing or oral argument, you discover new authorities, Fed. R. App. P. 28(j) providesthat you may submit a letter informing the Court of the citations of this new authority to the clerkvia ECF. You should attach a copy of the new authority that you are informing the Court about.Fed. R. App. P. 28(j) permits the body of the letter to be up to 350 words. Fed. R. App. P. 28(j)also permits the filing of a response to a 28(j) letter. Cases can be won or lost on 28(j) letters. Courts do not limit themselves to the law at the time of the briefs. As there are developments inthe law that impact your case, you need to bring this to the attention of the Court. Thus, yourwork is not done on the case until the Court renders its decision.

In order to keep track of new decisions as they are decided, you should subscribe to animmigration news service such as Interpreter Releases or Immigration Law Weekly’s daily e-mail or Bender’s Immigration Bulletin’s daily e-mail. Also, the Second Circuit’s website134 135

posts new decisions daily.

Oral Argument

After you file your briefs, if you discover dates that you are unavailable for oral argument, youshould write to the Clerk of the Second Circuit to advise the Court of your unavailability. Thisletter should be submitted via ECF. Once the Second Circuit sets a date for oral argument, it willbe very difficult to have the date of oral argument changed.

Court of Appeals cases are presided over by a panel of three judges. The Second Circuit does notannounce the panels for oral argument until the week before the argument on Thursday. Thisinformation will be available on the Second Circuit’s website. It may be helpful to learn aboutyour panel. There is a book called the Federal Judiciary Almanac that provides profiles onjudges. You might want to do a Westlaw or Lexis search to see what types of immigration casesthe members of your panel have decided. As previously discussed, you should update yourresearch to see if you need to do a 28(j) letter prior to your oral argument.

Prior to the oral argument, you should try to do a moot court. Even if you cannot find other

Free sign up is available at 134 www.ilw.com.

Free sign up is available at 135 www.bibdaily.com.

26

http://www.ilw.com.

http://www.bibdaily.com.

lawyers who will review the briefs and do a moot court with you, have someone time you as youspeak, so that you are prepared to speak for the amount of time that has been allotted.

When you prepare for oral argument, look over the Government’s brief very carefully. Beprepared to respond to every point in the Government’s brief. Try to think of oral argument likea game of chess. You should try to anticipate what questions will be asked when you make yourarguments. The more questions that you anticipate beforehand, the better job you will do at oralargument. You should also look over your arguments and think about whether you want to saveany arguments for your rebuttal, rather than raise them in your opening argument. You should make a “cheat sheet” summarizing the facts and case law. You should also tab yourjoint appendix, so that the most important documents can be found easily. It is very common forpanel members to ask during oral argument, “Where in the record does it say that?” Tabbingyour joint appendix will help you to answer such a question. If there are documents that standout as being important, you should probably have a copy of that document with you, so that itwill be easy to refer to them. If your argument involves statutory or regulatory provisions, youshould have copies of them with you. If your case involves asylum, you should be familiar withthe most up-to-date reports from the State Department on the relevant country, as well as thereports in the record. While the most up-to-date reports will not be in your record, sometimespanels like to ask about the current conditions in order to determine whether or not your clientwould still have a problem.

You should arrive in the court room a half hour before oral argument. When you arrive, youneed to check in with the clerk who will be sitting by the judges’ bench. When you check in, youshould indicate how much rebuttal time you want. Traditionally, two minutes is requested. Typically, the petitioner’s counsel sits to the right of the panel and the respondent’s counsel sitsto the panels’ left. Court begins with the chief judge doing roll call. When your case is calledduring the roll call, state, “Ready for petitioner.” There will be a court calendar listing the orderof the cases. When it is your turn, approach the podium.

There will be three lights at the podium: green, yellow, and red. The green light will go on whenyou begin. When there are only two minutes left, the yellow light will go on. At this point, youshould attempt to begin wrapping up. When the red light goes on, you are out of time. Thepractice in the Second Circuit is that you may finish your point, when the red light goes on. Also, it is very common in the Second Circuit for oral argument to go over the allotted time. Ifthe judges keep asking questions after the red light goes on, you should answer their questionsuntil they stop asking questions. Under such circumstances, the proper decorum is to requestadditional time to respond to the question.

Traditionally, counsel for petitioners begin their arguments by stating, “May it please the Court,my name is ___________, and I represent the petitioner, ___________.” You do not need tobegin your argument by reciting the facts. Second Circuit judges are always familiar with thecase and want you to begin with the argument. Moreover, you have very limited time. Typically,

27

the panel will ask many questions that will take up most of your time. However, do not assumethat this will occur. You should be prepared to speak for the full time you have been allotted.

While it is a good idea to have notes or an outline with you at the podium, you should not bereading from them. When you refer to cases, unless you are referring to an obscure case in thebriefs, it is usually sufficient to refer to cases by their title. If the judges want the citation, theywill ask for it. If you feel that you must use exact quotes from either the record or a case, keep itshort. If you feel that you must use an exact quote from either the record or a case, you shouldindicate the page where that quote can be found in the record or the case.

The judges of the Second Circuit are traditionally very courteous at oral argument. Whenproblems occur at a Second Circuit oral argument, it is usually because the attorney has notfollowed proper court room decorum. When one of the judges asks a question, stop speaking andlisten to the question. No matter how poorly things are going, never speak over a judge. Judgesat oral argument often want you to give yes/no answers to questions that you consider toocomplicated for a yes/no answer. Judges do not like it when you do not answer a question oravoid answering a question. When faced with such a situation, give the judge the yes/no answerthat they are looking for, but qualify your answer. Say something like, “Yes, that is true,however . . .”

As you argue, try to remember that there are three judges on the panel. You should be arguing toall three of them. This can be difficult to remember sometimes because some judges will bemore dominating than other judges at oral argument. As you are arguing, you should try to figureout if any of the judges are giving you indications as to whether or not they are on your side. If itbecomes evident what the positions of the judges are, you should focus on the judges who areeither neutral or against you. When Second Circuit judges are on your side, they sometimes askquestions, not for themselves, but for the purpose of getting you to sway the judge on the panelthat is against you. If you find yourself stuck on a point and one or more of the judges areindicating that it is futile to argue that point, then either move on to the next point or attempt tominimize the judge’s attacks on you. Say something like, “Assuming arguendo that is true, . . .”

When your adversary is arguing, you should not only focus on your adversary’s arguments, butalso, the questions and the comments from the panel. When you return to the podium for yourrebuttal, you should not only comment about the arguments that your adversary has made, butalso address the questions and comments from the panel that were made to your adversary. There will be a great temptation to attack your adversary’s weakest points. However, you shouldfocus on attacking the strongest points that your adversary made.

After the Court Renders the Decision

After the Court renders its decision, the prevailing party can seek costs. When a judgment is136

Fed. R. App. P. 39.136

28

affirmed in part, reversed in part, modified, or vacated, costs are only taxed as the Courtorders. Costs are limited to the costs for filing the petition for review and the costs for printing137

the briefs and joint appendix. In the Second Circuit, costs are limited to $0.20 per page or the138

actual costs, whichever is lower. The Second Circuit website contains a sample form for139

seeking costs.

If your client has lost and is unhappy with the outcome, there are three ways that your client canchallenge the decision. The first two are: (1) petition for panel rehearing; and (2) petition forrehearing en banc. A petition for panel rehearing is a request for the panel that heard the appealto reconsider its decision. The Second Circuit Local Rules provide a special sanctions rule for140

attorneys who file frivolous petitions for panel rehearing. If the petition for rehearing exceeds141

fifty pages, then three copies of the motion must be filed with the Second Circuit. A petition142

for rehearing en banc is a request for all of the active judges within the Second Circuit to reviewthe Court’s decision. The Fed. R. App. P. provide that en banc petitions are disfavored and are143

only ordered under very special circumstances. A petition for rehearing en banc must begin144

with a statement that either:

(A) the panel decision conflicts with a decision of the United States SupremeCourt or of the court to which the petition is addressed (with citation to theconflicting case or cases) and consideration by the full court is thereforenecessary to secure and maintain uniformity of the court’s decisions; or

(B) the proceeding involves one or more questions of exceptional importance,each of which must be concisely stated; for example, a petition may assertthat a proceeding presents a question of exceptional importance if itinvolves an issue on which the panel decision conflicts with theauthoritative decisions of every other United States Court of Appeals that

Id.137

Phansalkar v. Anderson, Weinroth & Co., LP., 356 F.3d 188 (2d Cir. 2004). 138


Fed. R. App. P. 40(a)(2).140

Second Circuit Local Rule 40.1(d).141

Fed. R. App. P. 40(b) and Second Circuit Local Rule 40.1(b).142

Fed. R. App. P. 35(a).143

Id.144

29

has addressed the issue. 145

A petition for panel rehearing or for rehearing en banc of a denial of a petition for review shouldbe filed via ECF within 45 days of the Court’s judgment. There is a fifteen page limit for both146

motions unless permission to submit an oversized motion is granted. The Second Circuit147

permits a petition for rehearing and rehearing en banc being filed in a single motion. A148

petition for rehearing or rehearing en banc should have a copy of the order and judgment beingchallenged. If the petition for rehearing exceeds fifty pages, then three copies of the motion149

must be filed with the Second Circuit. If the en banc petition exceeds fifty pages, then fifteen150

copies of the petition must be filed with the clerk. 151

The third option is a petition for a writ of certiorari to the U.S. Supreme Court. The petition forwrit of certiorari should be filed within ninety days of entry of the Court of Appeal’sjudgment. If a petition for rehearing or rehearing en banc is filed, the time to file the petition152

for writ of certiorari runs from the date the petition is denied. 153

If you do a petition for writ of certiorari, you should file a stay of the mandate. The mandate154

is “a certified copy of the judgment, a copy of the court’s opinion, if any, and any directionsabout costs.” The mandate is issued seven calendar days after the time to file a petition for155

rehearing has expired or seven calendar days after entry of an order denying a timely petition forpanel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is

Fed. R. App. P. 35(b).145

Fed. R. App. P. 35(c) and 40(a).146

Fed. R. App. P. 35(b)(2) and 40(b). 147

Second Circuit Local Rule 35.1(a). 148

Second Circuit Local Rule 35.1(b); Second Circuit Local Rule 40.1(a). 149

Fed. R. App. P. 40(b) and Second Circuit Local Rule 40.1(b).150

Second Circuit Local Rule 35.1(c). 151

Supreme Court Rule 13(3).152

Id.153

Fed. R. App. P. 41(d)(2).154

Fed. R. App. P. 41(a).155

30

later. 156

Fed. R. App. P. 41(b).156

31

TABLE OF CONTENTS

NOTICE.......................................................................................................................................................1INTRODUCTION.......................................................................................................................................1AGENCY - DEFINED................................................................................................................................1PETITION FOR REVIEW...........................................................................................................................1BANKRUPTCY APPEALS...........................................................................................................................2SERVICE OF PETITION FOR REVIEW........................................................................................................2DOCKET FEE..............................................................................................................................................2CAPTION.....................................................................................................................................................3ACKNOWLEDGMENT AND NOTICE OF APPEARANCE......................................................................3ADMISSION TO PRACTICE BEFORE THE SECOND CIRCUIT...........................................................3REPRESENTATION OF A CORPORATION..................................................................................................3CIVIL APPEAL PRE-ARGUMENT STATEMENT...................................................................................3CIVIL APPEALS MANAGEMENT PLAN (CAMP).................................................................................3THE RECORD.............................................................................................................................................4RECEIPT OF THE RECORD & NOTIFICATION OBLIGATIONS..........................................................5BRIEFING SCHEDULE..............................................................................................................................5FILING THE BRIEF AND APPENDIX.......................................................................................................6

FORM OF BRIEF AND APPENDIX................................................................................................6The Brief................................................................................................................................6The Appendix.........................................................................................................................7

SPECIAL APPENDIX.......................................................................................................................7MOTIONS....................................................................................................................................................8MOTION FOR STAY..................................................................................................................................8PRIVACY NOTICE.....................................................................................................................................9PROOF OF SERVICE..................................................................................................................................9FAILURE TO FILE......................................................................................................................................9DOCUMENTS UNDER SEAL..........................................................................................................................9ORAL ARGUMENT.....................................................................................................................................10PETITION FOR REHEARING....................................................................................................................10COSTS.........................................................................................................................................................11ISSUANCE OF MANDATE.......................................................................................................................11PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES SUPREME COURT.........................................................................................12APPEALS CLERKS IN THE DISTRICT COURTS..................................................................................13SECOND CIRCUIT CLERK’S OFFICE....................................................................................................13

HOW TO APPEAL AN AGENCY CASETO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

1

NOTICE

Case Management/Electronic Case Filing (“CM/ECF”)

Effective January 20, 2010, in all cases with a docket number beginning with “10-” or greater, allcounsel who appear in a case before this Court must be registered as a filing user and electronicallyfile all documents in CM/ECF. See LR 25.1.

In all cases with a docket number beginning with “09-” or less, counseled parties must file alldocuments in hard copy, and for all documents other than the appendix, counseled parties must alsosubmit to the Court an electronic version of each document in portable document format (PDF). Counseled parties must submit an appendix on CD or DVD when filing the required hard copies. SeeLR 25.2.

INTRODUCTION

These instructions are provided to alert counsel and pro se litigants to particular aspects of thisCourt’s practice. The instructions must be read together with the Federal Rules of Appellate Procedure(FRAP), this Court’s Local Rules (LRs) and Internal Operating Procedures, and applicable statutes and caselaw. FRAP, the LRs and IOPs, and all relevant Court forms, including a template for a motion, appendix,and brief are posted on the Court’s website www.ca2.uscourts.gov.

AGENCY - DEFINED

The term “agency” includes a federal agency, board, commission, or officer. See FRAP 15 (a)(4).

PETITION FOR REVIEW

A petition for review includes (1) a petition to enjoin, suspend, modify, or otherwise review anagency decision or (2) a notice of appeal, whichever form is indicated by the applicable statute. See FRAP15 (a)(4). A template for the petition for review is posted on the Court’s website.

A party who seeks review of a federal agency’s order must file a petition for review with the Clerk’sOffice within the time prescribed by law. A petitioner is advised to check with the agency that has issuedthe order to ascertain the proper filing deadline.

In immigration cases the petition for review must be filed - i.e., received in the Clerk’s Office -within 30 days of the date of the final Board of Immigration Appeals (“BIA”) order being challenged. Thisdate is usually the date stamped on the BIA’s decision.

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BANKRUPTCY APPEALS

If a party files a timely motion for rehearing under Bankruptcy Rule 8015, the time to file an appealruns from the entry of the order determining the motion. A party must promptly notify this Court when theparty has filed this motion in the district court. LR 4.2. Within 14 days of the district court disposing ofthe motion, the party who filed the motion must notify this Court that the district court has acted on themotion. Id.

A notice of appeal filed after the decision or order is announced but before it is entered is treated asfiled on the day of entry. A notice of appeal filed after the entry of judgment but before a motion describedabove is decided is treated as filed when the order determining the motion is entered. FRAP 6(b)(2).

SERVICE OF PETITION FOR REVIEW

The clerk must serve a copy of the petition for review on each respondent by mail or electronicmeans unless a statute prescribes another method. The petitioner must file with the clerk a sufficient numberof copies of the petition or application for service on each respondent. See FRAP 3(d), 15.

In immigration cases the petitioner also must serve the Office of Immigration Litigation, UnitedStates Attorney General, and Secretary and field director of the United States Immigration and CustomsEnforcement. See 28 U.S.C. §1252(b)(2).

DOCKET FEE

The petitioner must pay the $450 docket fee to the clerk when the petition for review is filed.

A petitioner who cannot afford to pay the fee must file in the Court a written motion for "in formapauperis" (“IFP”) status. See 28 U.S.C. § 1915; FRAP 24. The motion must be filed within 14 days offiling the petition for review. See LR 12.1(a).

The motion to proceed in forma pauperis must include the Court's T-1080 motion informationstatement (see Motions, below), a statement explaining the merit of the appeal, and Financial AffidavitForm CJA-23. The motion must be served on all other parties in the case and a proof of service form mustbe submitted with the motion. The motion papers must be typed or legibly printed. A template for themotion and the form are available on the Court’s website.

A motion for IFP status must include a statement that identifies each issue to be raised on appeal andwith respect to each issue, the facts and reasons that demonstrate the issue’s merit. If the appellant fails tofile the statement or if the Court determines that the appeal is frivolous, the appeal may be dismissed. LR24.1.

If the appeal is dismissed or denied, the docket fee will not be refunded to appellant.

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CAPTION

Upon receipt of the petition for review and the agency order being challenged, the clerk will docketthe petition under the title of the agency proceeding and will identify the petitioner’s name, if necessary.

ACKNOWLEDGMENT AND NOTICE OF APPEARANCE

An Acknowledgment and Notice of Appearance must be filed by all parties within 14 days ofreceiving the Court’s docketing notice. Timely submission of the Acknowledgment and Notice ofAppearance will constitute compliance with the requirement to file a FRAP 12(b) Representation Statement.In counseled cases only an admitted attorney who has properly renewed admission or an attorney with anadmission or renewal application pending may file a Notice of Appearance. A pro se party must provideall applicable information on the Acknowledgment and Notice of Appearance form.

If an attorney other than the originally designated lead counsel of record wishes to appear in a casefor any reason, that attorney must file a Notice of Appearance of Substitute, Additional, or Amicus Counsel.When an attorney seeks to substitute for the lead counsel of record, the Court will recognize the newattorney as the lead only after the original lead counsel of record files with the Court a letter stating that newlead counsel is about to enter the case.

ADMISSION TO PRACTICE BEFORE THE SECOND CIRCUIT

Counsel of record and additional counsel participating in any aspect of the case must be admittedto this Court’s bar and keep that admission current in accordance with the Court’s procedures. A renewalextends admission for five years. Admission pro hac vice will be granted to a member of the bar of a districtcourt who is acting for a party proceeding IFP or who can demonstrate exceptional circumstances justifyingadmission for the particular case. A written motion to proceed pro hac vice must be filed before the Noticeof Appearance is filed. For forms and information on admission to practice before this Court, visit theCourt’s website. See LR 46.1.

REPRESENTATION OF A CORPORATION

A party that is a corporation must be represented by counsel in order to appear in this Court. See28 U.S.C. § 1654; Berrio v. New York City Housing Authority, 564 F.3d 130, 132-133 (2d Cir. 2009)(applying even in the case of closely held corporations and corporations with a single owner).

CIVIL APPEAL PRE-ARGUMENT STATEMENT

A counseled petitioner seeking review of an agency decision must file an Agency Appeal Pre-Argument Statement, Form C-A, with the clerk within 14 days after filing the petition for review. The formcan be found on the Court’s website.

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CIVIL APPEALS MANAGEMENT PLAN (CAMP)

The Civil Appeals Management Plan (CAMP) is the Court’s program for exploring pre-argumentsettlement in all counseled agency cases except those that seek review of the denial of a claim for:

• asylum under the Immigration and Nationality Act,• withholding of removal under the Immigration and Nationality Act, or,• withholding or deferral of removal under the Convention Against Torture.

Also excluded are cases that seek review of the denial of a motion to reopen or reconsider a claim listedabove. See FRAP 33.1, 34.2. Notwithstanding these exclusions, any counseled party can request toparticipate in CAMP.

After the petition for review is docketed and petitioner has filed the Acknowledgment and Noticeof Appearance and Civil Appeal Pre-Argument Statement Form C-A, the clerk refers the case to the CAMPoffice for the scheduling of a mediation conference.

The conference takes place in the CAMP office or by telephone. Counsel must consult with theclient in advance of the conference and obtain as much authority as possible to settle the case. Counsel’sappearance at the conference is required, and counsel must be prepared to discuss the legal, factual, andprocedural issues in depth. An attorney or client who fails to participate in the conference process in goodfaith may be sanctioned by the Court. LR 33.1.

During the pendency of the CAMP proceedings the parties remain obligated to meet Court deadlines,including the filing of briefs and appendices.

If the parties enter into a stipulation to withdraw the appeal without prejudice to reinstatement, thestipulation must state the terms of reinstatement, including the date by which reinstatement must occur.Dismissal under the stipulation is effective when the stipulation is “so ordered” by the Court. If the caseis not reinstated by the date specified in the stipulation, the mandate in the case will issue forthwith andjurisdiction of the case will revert to the district court. LR 42.1.

Information shared during the CAMP proceeding is confidential and is not included in Court filesor disclosed to the circuit judges, except to the extent disclosed by an order entered as a result of a CAMPproceeding.

At the conclusion of the CAMP proceeding, counsel for each party must complete an anonymousPost-Conference Survey and submit it to the Court’s Director of Legal Affairs. The form is available onthe Court’s website.

THE RECORD

Within 40 days after service of the petition for review, the agency must file with the clerk theoriginal or certified copy of the administrative record or a certified list adequately describing all documents,transcripts of testimony, exhibits, and other material constituting the record or describing those partsdesignated by the parties.

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The parties may stipulate that no record or certified list of the documents that comprise the recordwill be filed. The date of the stipulation will be deemed the date the record was filed. See FRAP 17.

The agency must maintain any portion of the record not filed with the clerk and send such portionsto this Court if a party or the Court requests.

The Court ordinarily does not grant a motion to extend time to file the record.

RECEIPT OF THE RECORD & NOTIFICATION OBLIGATIONS

If the agency has not filed the transcript within 40 days of service of the petition for review uponthe agency, the agency must inform the Court in writing and explain all efforts taken to file the certifiedrecord. Thereafter, the agency is required to update the Court in writing in 14-day intervals about the statusof the record until it is received.

BRIEFING SCHEDULE

Within 14 days of the date the petitioner receives the certified record, the petitioner must notify theCourt in writing of the date by which the petitioner’s brief will be filed. Unless the case involves avoluminous transcript, the petitioner must select a filing date that is within 91 days of receipt of the certifiedrecord. Petitioner’s letter will be so-ordered unless the Court determines the selected filing date isunacceptable. A petitioner’s failure to comply with a so-ordered scheduling notification or any otherorder regarding the scheduling of briefs may result in dismissal of the petition without further notice.See LR 31.1, 31.2.

Within 14 days of filing of petitioner’s brief or the last petitioner’s brief in a consolidated or multi-petitioner case, the respondent must notify the Court in writing of the date by which the respondent’s briefwill be filed. Unless the case involves a voluminous transcript, the respondent must select a filing date thatis within 91 days of filing of the last petitioner’s brief. Respondent’s letter will be so-ordered unless theCourt determines the selected filing date is unacceptable. See LR 31.2(a)(2).

If a cross-petition has been filed, within 14 days of filing of the last cross-petitioner’s brief, thepetitioner-cross-respondent must notify the Court in writing of the date by which the petitioner-cross-respondent’s response brief will be due. The petitioner-cross-respondent must select a filing date that iswithin 60 days of filing of the last cross-petitioner’s brief.

Absent extraordinary circumstances, a petitioner or respondent’s failure to submit a scheduling letterwill result in a briefing deadline of 40 days from the date the certified record is filed. A respondent’s orpetitioner-cross-respondent’s failure to submit a scheduling letter will result in a briefing deadline of 30days from the date the petitioner’s or cross-petitioner’s brief is filed. If a reply brief is filed, it must beserved and filed within 14 days after service of the last respondent’s brief (or cross-respondent’s brief if across-petition has been filed) but not less than 3 days before argument unless the Court allows a later filing.See LR 31.2(a)(2).

A party’s filing of a potentially dispositive motion, a motion for IFP status, or a FRAP 42 stipulationfor dismissal without prejudice at any time prior to one of the briefing schedule deadlines set forth abovetolls the time period for the filing of scheduling notifications and briefs until the Court decides the motion

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or the case is reinstated.

An extension of time to file a brief will not be granted in the absence of a most extraordinarycircumstance.

FILING THE BRIEF AND APPENDIX

FORM OF BRIEF AND APPENDIX

The Brief

The brief sets forth the legal argument of the case and must comply with FRAP 28, 28.1, 29, 32, and32.1 and L.R. 25.1,31.1,32.1, as each rule may be applicable.

A principal brief must not exceed 30 pages or 14,000 words. If monospaced typeface, it must notexceed 1300 lines of text. Monospaced typeface, such as “Courier,” must not contain more than 10½characters per inch. Proportionally spaced typeface such as “Times New Roman” must be 14-point orlarger. Text and footnotes must be in 12-point or larger type with 2 points or more leading between thelines: printers should be familiar with these standards.

A reply brief must not exceed 15 pages or half the type-volume (i.e., numbered words or lines)permitted in a principal brief. Headings, footnotes, and quotations count toward word and line limitations.

The filer must certify the number of words or lines in a certificate of compliance which is includedin the brief.

The corporate disclosure statement; table of contents; table of citations; statement with respect tooral argument; any addendum containing statutes, rules, or regulations; and any certificates of compliancedo not count toward the type-volume limitation. See FRAP 32.

A brief must be legible.

A brief in pamphlet size will be accepted in this Court and must conform to FRAP 32(a).

The petitioner's brief must also contain (see FRAP 28):

• A table of contents, with page references;• An alphabetically arranged table of cases, statutes, and other authorities cited with references

to pages in the brief;• A preliminary statement including the name of the judge or agency member who rendered

the decision and a citation of the reported opinion, if any, see Local Rule 28;• A statement of subject matter and appellate jurisdiction, the filing dates establishing

timeliness of the appeal, and an assertion that the appeal is from a final order or judgmentor that some other basis exists for appellate jurisdiction;

• A statement of the issues presented;• A statement of the case;• A summary of argument;• A statement of facts with references to the record;

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• An argument;• A short conclusion stating the precise relief sought;• Proof of service unless filed electronically in accordance with LR 25.1; and• A Certificate of Compliance bound at the back of the brief when a principal brief exceeds

30 pages or a reply brief exceeds 15 pages, see FRAP 32(a)(7)(C).

The following colors for brief covers must be used:

• Petitioner - Blue• Respondent - Red• Reply - Gray• Intervenor or Amicus - Green• Supplemental - Tan

The caption on the covers of the briefs and appendices must conform to this Court's "officialcaption." If this Court's official caption is erroneous, counsel must alert the Court promptly in writing butin no event later than 7 days prior to the due date for the appellant's brief.

A motion for leave to file an oversized brief must, in the absence of extraordinarycircumstances, be made at least 14 days before the brief’s due date. A motion for leave to extend thetime to file a brief must be made as soon as practicable after an extraordinary circumstance arises.

The Appendix

The appendix must comply with FRAP 30 and LR 30.1. It should contain from the certified recordall material cited in the briefs or required by the Court to be included. Such material includes the following:

• the relevant docket entries in the agency proceedings;• any relevant portions of the pleadings, charge, findings, or opinion;• the judgment, order, or decision being appealed; and • any other parts of the record to which the parties wish to direct the particular attention of the

Court.

Only those parts of the record necessary to illustrate the legal argument should be included in the appendix.The omission of part of the record from the appendix will not preclude the parties or the Court from relyingon such parts since the record is available to the Court if needed. See FRAP 30(a)(1).

Only material that is part of the certified record may be included in the appendix.

SPECIAL APPENDIX

The parties must file a Special Appendix if the appendix, exclusive of the orders, opinions andjudgments being appealed, exceeds 300 pages. The Special Appendix must contain (1) the orders, opinionsand judgments being appealed, and (2) the text, with appropriate citation, of any significant rule of law,including any constitution provision, treaty, statute, ordinance, regulation, rule or sentencing guideline. The Special Appendix may be an addendum at the end of a brief or a separately bound volume designated“Special Appendix.” See LR 32.1.

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If an attorney’s failure to file a brief or appendix results in a default or dismissal of the appeal,this Court may discipline the attorney.

MOTIONS

All requests to the Court - for example, permission to file an oversized brief - must be made in theform of a motion that complies with FRAP 27, LR 27.1, and any other applicable rule or statute. The Courtrequires a motion to be accompanied by the Court’s Form T-1080 Motion Information Statement. In a casein which all parties are represented by counsel, the moving party’s motion must indicate (1) that the movanthas notified opposing counsel or why the movant could not do so; (2) opposing counsel’s position on therelief requested, and (3) whether opposing counsel intends to file a response to the motion.

An affidavit or attorney’s affirmation that contains only factual information must be filed with themotion. The movant may file a memorandum of law that complies with LR 27.1(a)(3).

A moving party seeking substantive relief from a lower court opinion or agency decision must attacha copy of the opinion or decision and any written decision as a separately identified exhibit. For cases inwhich a party does not file documents electronically with the Court, a counseled party must file only anoriginal of the motion. If the motion exceeds 50 pages, the movant must also submit 3 additional papercopies of the motion to the Court. Proof of service on all other parties to the action must accompany themotion papers unless the motion is filed electronically in accordance with LR 25.1.

Papers in response to a motion must be served and filed within 10 days of service in person or within13 days of service by mail or email. For cases in which the Court does not require electronic filing ofdocuments, an adverse party must file only an original of the responsive papers. If the response exceeds50 pages, the respondent must also submit 3 additional paper copies of the response. A substantive motionrequiring oral argument is usually heard on Tuesdays when the Court is in session.

Procedural motions (for example, an extension of time to file a document or permission to file anoversized brief), will not be placed on a motions calendar and need not be noticed for a particular date.Since papers usually are not filed in opposition to procedural motions, the Court does not wait for suchpapers to determine the motion. As a result, opposition papers should be filed promptly to ensure that theCourt considers them. In some instances the Court may request the filing of opposition papers. In that eventthe opposition papers should be filed in accordance with the deadline set by the Court.

Certain routine procedural motions are determined by the clerk or the clerk acting under the clerk'sauthority. Other procedural motions are referred to the applications judge. Upon counsel’s request forreconsideration, a clerk’s order may be resubmitted to a judge for determination.

Once a case is assigned a date for oral argument, all motions filed in that case, including anyprocedural motions, will be referred to the panel that will hear the appeal. To maintain the anonymity ofthe panel, a motion decided by the panel is signed by the clerk or the clerk’s designee.

MOTION FOR A STAY

A petitioner seeking to stay the agency order being appealed for the pendency of the appeal mustfirst ask the agency to stay its decision pending the appeal. The motion may be made directly in the Court

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of Appeals if the movant demonstrates that moving first in the agency would be impracticable or that theagency denied the motion or otherwise failed to afford the relief requested. The movant must state thereasons the agency gave for its action, if any. In addition, the motion must include the reasons for grantingthe relief requested, the facts upon which movant relies, affidavits supporting the facts subject to dispute,and relevant parts of the record. See FRAP 18.

PRIVACY NOTICE

Unless the Court orders otherwise, any submission to the Court must not include an individual’ssocial security number, taxpayer identification number, or birth date; the name of an individual known tobe a minor; or a financial account number except as permitted in Fed. R. Civ. P. 5.2(a) and (b).

PROOF OF SERVICE

All papers filed in this Court must be served on the other parties in the case. See FRAP 25. ThePDF version of a document must be e-mailed to a party represented by counsel and to a party notrepresented by counsel if the pro se party has chosen to submit documents in PDF.

All such papers presented for filing must include an acknowledgment of service by the person(s)served or proof of service by the person who made the service. The acknowledgment or proof must be inthe form of a certified statement of the date and manner of service and the name of each person served.Proof of service may appear on or be affixed to the papers filed. An acknowledgment and proof of serviceform can be found on the website. If, however, a party is filing a document electronically with the Courtin accordance with LR 25.1, no separate proof of service is necessary. See LR 25.1(h)(2).

A pro se litigant who does not submit documents in PDF must be served with hard copies ofdocuments by mail or in person.

FAILURE TO FILE

If a counseled or pro se petitioner fails to file a form, brief, appendix, or document, or otherwise failsto act, by the date set in FRAP, a LR, or a Court order, that party will be deemed in default. The Court willissue an order that sets a firm dismissal date to occur if the default is not cured within a specified time frame.Once the case is dismissed, the Court will view a motion to reinstate unfavorably unless the Court finds thatextraordinary reasons explain the default.

DOCUMENTS UNDER SEAL

On rare occasions a document will be placed "under seal" so that it is not publicly available. A paperthat has been sealed in the agency below will remain under seal in the Court of Appeals if received as partof the record. A document that was not sealed in the agency below will not be sealed in the Court ofAppeals without a Court order. A party wishing to file a paper under seal with the Court of Appeals mustmake a written motion. An informal request to seal a document will not be entertained. All paperssubmitted to the Court pursuant to a sealing order must be submitted in a sealed envelope, markedSEALED, with a copy of the order placing the document under seal attached to the envelope.

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ORAL ARGUMENT

Within 14 days after the final respondent’s brief is filed, each party must advise the Court whetherit seeks oral argument by filing an Oral Argument Statement Form which is available on the Court’swebsite. Failure to timely file the Oral Argument Statement Form signifies that the party does not seek oralargument. See LR 34.1.

Certain types of immigration petitions are not automatically calendared for oral argument butproceed on a separate non-argument calendar (“NAC”). Cases that are heard on the NAC include those thatraise the following:

• a claim for asylum under the Immigration and Nationality Act (“INA”),• a claim for withholding of removal under the INA, or• a claim for withholding of deferral of removal under the Convention Against Torture,

or a denial of a motion to reopen or reconsider a prior decision that raised one of theclaims above.

On occasion the Court may decide to take a case on submission, without oral argument. When theCourt so decides, the clerk will notify the parties. See FRAP 34(a)(2), LR 34.1.

When an appeal is set for argument, the Court will notify counsel 2 to 4 weeks prior to the argumentdate. Occasionally the notification time may be shorter especially if the appeal has been expedited onmotion of the parties. Once a case has been assigned a date for oral argument, an adjournment israrely granted.

An appeal is heard by a three-judge panel of the Court. The names of the judges are not madepublic until noon on Thursday of the week before the panel sits. From September through June, the Courtgenerally sits every weekday except holidays and the last week of December. During July and August, theCourt generally sits two weeks each month.

Currently the Court hears argument in the 9 Floor Ceremonial Courtroom of the Daniel Patrickth

Moynihan U.S. Courthouse, at 500 Pearl Street, New York City. Occasionally the Court will hear argumentat another location within the Circuit. Oral argument generally starts at 10:00 a.m. and continues untilcompletion. During certain weeks the Court has double panels with the second panel hearing argumentsimultaneously in another designated courtroom or beginning at 2:00 p.m. Notice of changes in the date,time, or location of a Court session is posted on the website.

The Court sets the amount of argument time for each case that will be heard. Arguments aregenerally limited to 10 minutes or less per side. Additional time may be granted in complex or multi-partycases.

PETITION FOR REHEARING

After the Court issues a final order or judgment, a party may wish to apply for a rehearing. Thereare two kinds of rehearing. A petition for a panel rehearing requests that the panel of judges that originallyheard the case reconsider its decision. A petition for a rehearing en banc requests that all the active judges

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on Court rehear the case. A petition for panel rehearing and/or rehearing en banc must be filed within 14days after the decision determining the case is filed. FRAP 35(c)(2), 40(a)(1); LR 35.1, 40.1. If a partyis simultaneously filing a petition for rehearing and a petition for rehearing en banc, both requests must bemade in a single document. When a petition for rehearing exceeds 50 pages, the party filing the petitionmust submit an additional 3 paper copies to the Court. If the petition for rehearing includes a petition forrehearing en banc, the party filing the petition must submit an additional 15 paper copies to the Court.

If the Court amends a decision, the time for filing the petition for rehearing or amended petition forrehearing begins to run from the date the amended decision is entered. This recalculation of the time to filea petition for rehearing does not apply if the Court issues a corrected, as opposed to amended, decision.Each petition for rehearing must include a copy of the opinion or summary order to which the petitionrelates.

The timely filing of a petition for rehearing will stay the issuance of the mandate until dispositionof the petition unless otherwise ordered by the Court. If the petition is denied, the mandate issues 7 daysafter the entry of the order denying the petition unless the time is shortened or extended by order.

COSTS

The prevailing party on appeal may assess costs incurred during the appeal against the losing party.If the Court affirms and reverses in part, modifies or vacates a judgment, costs are assessed only as the Courtmay order. If the United States is a party, costs will be assessed only if authorized by law. See FRAP 39;LR 39.1.

The Bill of Costs, verified, must be filed within 14 days after the entry of judgment. An originalplus one copy must be filed with the Court. The bill also must be served on all parties.

Identify the number of copies that comprise the printer’s unit. Include the printer’s bills, which muststate the minimum charge per printer’s unit for a page, a cover, foot lines by the line, and an index and tableof cases by the page. Indicate only the number of necessary copies. State actual costs at rates not higherthan those generally charged for printing services in New York, NY; excessive charges are subject toreduction.

The Bill of Costs form is available on the Court’s website.

ISSUANCE OF MANDATE

The issuance of the mandate terminates the Court of Appeals' jurisdiction over a case and transfersjurisdiction back to the district court or agency. The mandate is a copy of the order or judgment thatterminates the case with the words "Issued as Mandate" inscribed. There is no separate document. If nopetition for rehearing is filed, the mandate will issue 21 days after the entry of the judgment except for casesin which the United States is a party. In that event the mandate will issue 52 days after the entry of thejudgment. The mandate issues 7 days after entry of an order denying a timely petition for rehearing orsooner if so ordered by the Court. FRAP 41.

An appeal that is terminated upon the disposition of a motion ordinarily is mandated forthwith.

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PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES SUPREME COURT

A party seeking United States Supreme Court review of a Court of Appeals judgment or order mustfile a Petition for a Writ of Certiorari with the Supreme Court within 90 days from the date of the entry ofjudgment or denial of the petition for rehearing. The party may move to stay the mandate, pendingapplication to the Supreme Court for a writ of certiorari. FRAP 41(d)(2).

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APPEALS CLERKS IN THE DISTRICT COURTS

An appeals clerk has been appointed in each district court’s clerk’s office to assist anyone who mayhave questions regarding the filing of appeal papers. The following list provides contact numbers/locationsfor the appeals clerks within the Second Circuit:

District of Connecticut 203-773-2140

Northern District of New York 315-234-8502

Eastern District of New York 718-260-2310 (Brooklyn, NY) 631-712-6030or631-712-6042 (Central Islip, NY)

Southern District of New York 212-805-0636 (New York, NY)914-390-4100 (White Plains, NY)

Western District of New York 716-332-1708 (Buffalo, NY)585-613-4016 (Rochester, NY)

District of Vermont 802-951-6395 ext. 119

SECOND CIRCUIT CLERK’S OFFICE

Any person with questions regarding appellate procedure in the Second Circuit should contact theClerk’s Office. Anyone with a case before this Court should speak with the Case Manager assigned to thatmatter. Set forth below are the relevant telephone numbers in the Second Circuit’s Clerk’s Office for useduring the various stages of an agency case:

Case Initiation (until issuance of docketing notice). . . . . . . .212-857-8551Agency Team. . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . .212-857-8548Pro Se/Prisoner Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212-857-8550Calendar Team. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .212-857-8550Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212-857-8620Attorney Admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212-857-8603

Part II: Procedural and Substantive Issues Concerning the Petition for Review Process

B. Forms, Instructions and Notices

Blank Petition for Review from the U.S. Court of Appeals for the Second Circuit Blank Pre-Argument Statement (Form C-A) Sample Petition for Review, with Sample Addendum A, Addendum B and Form C-A Sample Rule 28(j) Fed. R. App. P. Letter Notice to Appear from Department of Homeland Security Acknowledgement and Notice of Appearance Form Notice to Bar – Reduced Time to File Briefs Petitioner’s Requested Briefing Schedule Motion Information Statement Form T-1080 Oral Argument Statement LR 34.1(a) Second Circuit Night Depository Form CAMP Stipulation Without Prejudice - - Agency Cases Board of immigration Appeals – Sample Decision

Federal Rules of Appellate Procedure Form 3. Petition for Review of Order of an Agency,Board, Commission or Officer

United States Court of Appeals for the ______________ Circuit

A.B., )Petitioner )

)v. ) Petition for Review

))

XYZ Commission, ))

Respondent. )

(here name all parties bringing the petition) *, hereby petitionthe court for review of the Order of the XYZ Commission (describe the order) entered on the______ day of _________________ 19___.

/s/ Attorney for Petitioners Address

*See Rule 15.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITAGENCY APPEAL PRE-ARGUMENT STATEMENT (FORM C-A)

9 APPLICATION FOR ENFORCEMENT 9 PETITION FOR REVIEW

1. SEE NOTICE ON REVERSE. 2. PLEASE TYPE OR PRINT. 3. STAPLE ALL ADDITIONAL PAGES.

CAPTION: AGENCY NAME: AGENCY NO.:

DATE THE ORDER UPON WHICHREVIEW OR ENFORCEMENT ISSOUGHT WAS ENTERED BELOW:

ALIEN NO :(Immigration Only)

DATE THE PETITION ORAPPLICATION WAS FILED:

Is this a cross-petition for review /cross-application for enforcement? 9 YES 9 NO

Contact

Information

for

Petitioner(s)

Attorney:

Counsel’s Name: Address: Telephone No.: Fax No.: E-mail:

Contact

Information

for

Respondent(s)

Attorney:

Counsel’s Name: Address: Telephone No.: Fax No.: E-mail:

JURISDICTIONOF THE COURTOF APPEALS(provide U.S.C.title and section):

APPROX. NUMBEROF PAGES IN THERECORD:

APPROX.NUMBER OFEXHIBITS INTHE RECORD:

Has this matter been before this Circuit previously? 9 Yes 9 No If Yes, provide the following: Case Name: 2d Cir. Docket No.: Reporter Citation: (i.e., F.3d or Fed. App.)

ADDENDUM “A”: COUNSEL MUST ATTACH TO THIS FORM: (1) A BRIEF, BUT NOT PERFUNCTORY, DESCRIPTION OF THENATURE OF THE ACTION; (2) THE RESULT BELOW; AND (3) A COPY OF ALL RELEVANT OPINIONS/ORDERS FORMING THE

BASIS FOR THIS PETITION FOR REVIEW OR APPLICATION FOR ENFORCEMENT.

ADDENDUM “B”: COUNSEL MUST ATTACH TO THIS FORM: (1) THE RELIEF REQUESTED; (2) A LIST OF THE PROPOSEDISSUES; AND (3) THE APPLICABLE APPELLATE STANDARD OF REVIEW FOR EACH PROPOSED ISSUE.

PART A: STANDING AND VENUE

STANDING

PETITIONER / APPLICANT IS:

9 AGENCY 9 OTHER PARTY

9 NON-PARTY (SPECIFY STANDING):

VENUE

COUNSEL MUST PROVIDE IN THE SPACE BELOW THE FACTS ORCIRCUMSTANCES UPON WHICH VENUE IS BASED:

IMPORTANT. COMPLETE AND SIGN REVERSE SIDE OF THIS FORM.

Page 1 of 2

PART B: NATURE OF ORDER UPON WHICH REVIEW OR ENFORCEMENT IS SOUGHT (Check as many as apply)

TYPE OF CASE:

ADMINISTRATIVE REGULATION/ RULEMAKING IMMIGRATION-includes denial of an asylum claim

BENEFITS REVIEW IMMIGRATION-does NOT include denial of an asylum claim

UNFAIR LABOR TARIFFS

HEALTH & SAFETY OTHER:

COMMERCE (SPECIFY)

ENERGY

1. Is any matter relative to this petition or application still pending below? 9 Yes, specify: 9 No

2. To your knowledge, is there any case presently pending or about to be brought before this Court or another court or administrative agency which: (A) Arises from substantially the same case or controversy as this petition or application ? 9 Yes 9 No

(B) Involves an issue that is substantially similar or related to an issue in this petition or application ? 9 Yes 9 No

If yes, state whether 9 “A,” or 9 “B,” or 9 both are applicable, and provide in the spaces below the following information on the other action(s):

Case Name: Docket No. Citation: Court or Agency:

Name of Petitioner or Applicant:

Date: Signature of Counsel of Record:

NOTICE TO COUNSEL

Once you have filed your Petition for Review or Application for Enforcement, you have only 14 days in which to complete the

following important steps:

1. Complete this Agency Appeal Pre-Argument Statement (Form C-A); serve it upon your adversary, and file it with the

Clerk of the Second Circuit in accordance with LR 25.1.

2. Pay the $450 docketing fee to the Clerk of the Second Circuit, unless you are authorized to prosecute the appeal without payment.

PLEASE NOTE: IF YOU DO NOT COM PLY WITH THESE REQUIREMENTS WITHIN 14 CALENDAR DAYS, YOUR

PETITION FOR REVIEW OR APPLICATION FOR ENFORCEMENT WILL BE DISMISSED. SEE LOCAL RULE 12.1.

Page 2 of 2

Faculty Biographies

Douglas Broder, Partner, K&L Gates LLP Mr. Broder has been in private practice in New York for over 30 years. A leader of K&L Gates’ antitrust practice group, his practice includes litigating antitrust matters and a wide variety of commercial matters. Mr. Broder also assists clients in obtaining antitrust clearance for mergers, acquisitions and joint ventures. Mr. Broder has an extensive appellate practice and, as a member of the Second Circuit’s Pro Bono Panel, has had primary responsibility for more than 50 appeals to the Second Circuit alone. Mr. Broder is the author of three books on antitrust, including, most recently U.S. Antitrust Law and Enforcement: A Practice Introduction, (Oxford University Press, 2010). He has written numerous articles, and taught CLE courses, on antitrust, effective brief writing, and appellate advocacy.

Raymond Fasano is an attorney whose practice is dedicated to immigration litigation on the agency and federal level throughout the nation. Mr. Fasano is counsel of record in several published opinions in Circuit Courts across the country. He is the author of several published articles in the area of immigration litigation including: "Why Are You Here? Jurisdiction in District Court for Mandamus Actions Over Delayed Adjudications," by H. Raymond Fasano, Esq. and Donald F. Madeo, Esq. 85 NO. 16 Interpreter Releases 1181 (April 14, 2008); "Coercive Population Control Claims After Matter of J-W-S-" by H. Raymond Fasano, Esq. and Donald F. Madeo, Esq., 84 NO. 28 Interpreter Releases 1677 (July 23, 2007); "Holding by Administrative Fiat: Why Matter of Acosta Hidalgo was Erroneously Decided," H. Raymond Fasano, Esq. and Donald F. Madeo, Esq., 84 NO. 15 Interpreter Releases 841, 841) (April 9, 2007); "Testing the Faithful in the Second Circuit: Religious Persecution and Political Asylum," H. Raymond Fasano, Esq. and Donald F. Madeo, Esq., 83 NO. 17 Interpreter Releases 765, 765 (April 24, 2006). He is a graduate of Boston College Law School.

Gregg Kanter

Flemming Zulack Williamson Zauderer LLP Mr. Kanter joined Flemming Zulack Williamson Zauderer in 1997 and became Of Counsel in 2002. He has represented numerous foreign clients in lawsuits in New York, including his defense of German, Italian, and Austrian companies in class action litigations, a Swiss bank in banking, securities, and bankruptcy matters, a French bank in a fraud and conspiracy action, and a Swiss citizen in a contract dispute. Mr. Kanter also has represented a variety of domestic clients, including a prominent architectural firm in a number of actions alleging professional liability. Mr. Kanter’s experience includes his having been the lead trial lawyer representing a Swiss national in a contract case in which the jury returned a multi-million dollar verdict in favor of our client that exceeded the damages demand. Mr. Kanter also served as lead counsel in a bankruptcy adversary proceeding concerning a partnership dispute. In addition, Mr. Kanter represented the former CFO of a Fortune 500 company on a breach of an employment contract claim in an arbitration in which our client recovered the contract proceeds, his attorneys' fees, and a 25% statutory penalty. Mr. Kanter also represented a contractor in a dispute with a subcontractor in a bench trial in which the judge ruled against the subcontractor's breach of contract claim and in favor of our client's counterclaim. Prior to joining Flemming Zulack, Mr. Kanter was a Law Clerk for the Honorable Henry A. Politz of the United States Court of Appeals for the Fifth Circuit in Shreveport, Louisiana and then practiced law at Cahill Gordon & Reindel LLP in New York.

Matthew L. Guadagno specializes in deportation defense and federal litigation relating to immigration. He has argued numerous cases in the federal courts that have resulted in precedent decisions. Mr. Guadagno currently serves on the Amicus Committee of the American Immigration Lawyers’ Association and the Advisory Committee to the Legal Action Center of the American Immigration Council. In September 2010, Mr. Guadagno was listed in the publication, Super Lawyers, for the third year in a row.

Robert E. Juceam, Esq., is a director and former president of the American Immigration Lawyer's Association and the American Immigration Counsel. He is the recipient of American Lawyer Magazine's 2010 Lifetime Achievement Award, a frequent lecturer on legal ethics, pro bono, and the legal needs of immigrants. He has served as Chairman of the American Bar Association's Commission on Immigration, a member if its Standing Committee on Pro Bono and a director of NYCLA. A senior Of Counsel, he practices at Fried, Frank, Harris, Shriver & Jacobson LLP, based in its New York office where he was a litigation partner from 1974 to 2006.

Biographical Information: Robert A. Katzmann Robert A. Katzmann is a United Stated Circuit Judge for the U.S. Court of Appeals for the Second Circuit. At his appointment in 1999, he was Walsh Professor of Government, Professor of Law and Professor of Public Policy at Georgetown University; a Fellow of the Governmental Studies Program of the Brookings Institution; and president of the Governance Institute. A lawyer and political scientist by training, Judge Katzmann received his A.B. (summa cum laude) from Columbia College, A.M. and Ph.D in government from Harvard University, and a J.D. from the Yale Law School, where he was an Article and Book Review Editor of the Yale Law Journal. After clerking on the U.S. Court of Appeals for the First Circuit, he joined the Brookings Institution Governmental Studies Program, where he was a research associate, senior fellow, visiting fellow, and acting program director. He has authored these books: Regulatory Bureaucracy: The Federal Trade Commission and Antitrust Policy (MIT Press), Institutional Disability: The Saga of Transportation Policy for the Disabled (Brookings), co-editor of Managing Appeals in Federal Court (Federal Judicial Center), editor and contributing author of Daniel Patrick Moynihan: The Intellectual in Public Life (Johns Hopkins), and editor and contributing author of Judges and Legislators: Toward Institutional Comity (Brookings). Judge Katzmann wrote another volume of his own essays on the subject of interbranch relations, Courts and Congress (Brookings/Governance). Judge Katzmann also directed a project on the legal profession and public service, The Law Firm and the Public Good (Governance/Brookings). In 2007, he delivered the Marden Lecture of the Association of the Bar of the City of New York, “The Legal Profession and the Unmet Needs of the Immigrant Poor.” Judge Katzmann has been a board director of the American Judicature Society, a public member of the Administrative Conference of the United States, a vice-chair of the Committee on Government Organization and Separation of Powers of the ABA Section on Administrative Law and Regulatory Practice, a board member of NYU’s Institute of Judicial Administration, a member of the Board of Visitors of Georgetown University Law Center, and a member of the board of academic advisors of the Rehnquist Center. He served as co-chair of the FTC transition team for the Clinton/Gore Administration, and as special counsel to Senator Moynihan on the confirmation of Justice Ruth Bader Ginsburg. He has also chaired the Section on Legislation of the American Association of Law Schools. He currently teaches a course on the administrative process at NYU Law School.

Judge Katzmann, the first political scientist to join the federal appellate bench, is recipient of the American Political Science Association’s Charles E. Merriam Award (2001), “given to a person whose published work and career represents a significant contribution to the art of government through the application of social science research.” In 2003, he was elected a Fellow of the American Academy of Arts and Science.

Daniel B. Lundy is an associate at Barst Mukamal & Kleiner, LLP, and Manager of the firm’s Litigation Department. Mr. Lundy practices in all areas of immigration law. His primary areas of practice include litigation and appeals in the Federal Courts, removal defense before the Immigration Courts and the Board of Immigration Appeals, E-1 and E-2 Treaty Trader and Treaty Investor visas, EB-5 employment creation visas, asylum and refugee proceedings, and other employment and family based immigration matters. Mr. Lundy also practices before the Department of Labor in immigration related matters. Mr. Lundy is a member of the American Immigration Lawyers Association National Immigration Reform Committee, the American Immigration Lawyers Association New York Federal Practice Committee, the New York County Lawyers Association Committee on the Federal Courts, and the Honorable Robert A. Katzmann’s Study Group on Immigrant Representation.

Eva Saltzman is a Supervisory Staff Attorney in the Immigration Unit at the United States Court of Appeals for the Second Circuit. Prior to joining the Court, she practiced immigration law, specializing in criminal alien deportation defense and immigration-related appellate litigation. She is a graduate of the University of Wisconsin-Madison and the Benjamin N. Cardozo School of Law, where she received the Telford Taylor Fellowship in Public International Law for research at Oxford University. Ms. Saltzman has worked on human rights and international law issues in Oxford, England, Cairo, Egypt and Nairobi, Kenya. She is a frequent speaker on the topics of immigration and appellate advocacy.

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