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Written and Oral Advocacy in

Immigration Court and Beyond

December 1, 2017

Panelists

• Raha Jorjani, Immigration Defense Attorney,

Alameda County Public Defender

• Trina Realmuto, Directing Attorney, Boston,

American Immigration Council

• Maria Mindlin, Language Specialist & CEO,

Transcend

Overview

• Writing for court

• Oral advocacy in immigration cases

• Writing for clients & the public

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Write Better, Win More

Case Theory

• Link facts with the law as you understand it; not static

• Lead the reader to the desired outcome

• Make the law and facts intelligible and straightforward, yet compelling with emotional appeal

Name Calling

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Flores v. U.S. Citizenship and Immigration Services,

718 F.3d 548, 551 n.1 (6th Cir. 2013)

We recognize that using the term “alien” to refer to

other human beings is offensive and demeaning. We

do not condone the use of the term and urge Congress

to eliminate it from the U.S. Code. We use it here,

however, to be consistent with the statutory language

and to avoid any confusion in replacing a legal term of

art with a more appropriate term.

Other Options

Mr. / Ms. Soandso

Noncitizen

Individual

Respondent (before EOIR)

Petitioner (on PFR)

Plaintiff

Foreign national

NOT “alien”

Similarly, use:

DHS / ICE (EOIR)

IJ / BIA

Respondent (on PFR)

Defendant

NOT “the government” and

certainly not “the

Government”

For Clarity and Power: Use Active Voice

Do not write: “The knife was not discovered until later.”

Write: “The police discovered the knife on March 24, 2015, two days

after Mr. Lincoln left Chicago.”

Do not write: “Mr. Rogers was placed in removal proceedings by the

government with the issuance of a Notice of Appear charging him

with/as ….”

Write: “DHS issued a Notice to Appear charging Mr. Rogers with ..”

Do not write: “The allegations against Ms. Smith were not

established.”

Write: “The DHS attorney did not prove allegations 2 and 4 of the

NTA.”

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Write More Powerfully and Precisely

Avoid / delete filler words and phrases:

Due to the fact - In order to - In terms of

“ …. based on the fact that …”

Avoid:

“very unique”

Avoid:

“It is clear that…” [If it were so clear, you would not be

litigating whatever it is]

Avoid overstating, e.g., avoid “always” and “never”

Write More Powerfully and Precisely

Do not turn nouns into verbs.

“We will be busy outreaching to the affected

communities.”

“I don’t want my children role-modeling after

Trump.”

“Her deportation is impacting her children.”

Organization and Simplification

Do: create timelines and outlines

Do not: use complex, unusual words, and latin

expressions when simple strong words will do.

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Citations and signal words

Second and Third Circuits: use 2d and 3d not 2nd or 3rd

Pa v. INS, 26 F.2d 2 (2d Cir. 1991); Ma v. Reno, 22 F.3d 79 (3d Cir. 2006).

Signal words

E.g.: Meaning "for example," this is used to indicate that the sources you

are using are only a small representative of a larger sample.

See: This indicates that the source you are using does not directly state

the proposition, but supports it.

See also: This can be used after a no signal cite to a "see" cite to give

additional authorities.

Accord: This is used when only one source is mentioned in the text, but

additional sources are being cited.

Signal Words (cont.)

Cf.: Meaning to "compare," this is used when an authority doesn't

exactly support what you are saying, but still lends support to the

argument.

Compare...with...: This contrasts two authorities that have different

views on what you are discussing.

Contra: This is used when the authority contradicts the proposition.

But see: This is used when the authority contradicts the proposition,

but without being direct (implicitly).

But cf.: This is used when the authority contrasts the proposition

indirectly (by analogy).

See generally: This is used when your cited authority uses

background material to support your text.

Advocacy Do’s and Don’ts

Judges do not necessarily want to make monumental new law,

and your client just wants to win.

Argue first on the narrowest grounds:

•E.g., the IJ’s decision violated the statute [regulation].

•BIA ignored binding precedent and acted inconsistently.

Then, only if supported by case law, argue constitutional issues.

Not everything bad that happens in immigration court is a

due process violation!

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More Advocacy Do’s and Don’ts

Do not ignore IJ errors. Argue each error.

Do categorize and quantify IJ errors.

Do make IJ errors concrete.

Show rather than tell:

•E.g., to show IJ bias against your client or that the IJ

pre-judged the case:

•Count and state (precisely and accurately!) the

number of pages of IJ questions in the transcript

compared to the number of pages of the DHS

attorney.

More Advocacy Do’s and Don’ts

Do not use your opponent’s terminology.

• Do not say: “Ms. Santos was convicted of hit and

run.”

• Say: “Ms. Santos was convicted of [the correct name

of the statute] or [violating 12 U.S.C. § 2223].

• Do not write: “The IJ found that Mr. Taylor is an

aggravated felon.”

• Write: “The IJ erred by finding Mr. Taylor had been

convicted of an aggravated felony.”

File a Reply Brief!

If you do not file a reply brief, then the government has the

last word and you forfeit the opportunity to:

• respond to the government’s framing of the case;

• correct the government’s errors of fact and law.

Sometimes the cases the government cites are helpful to your

client’s position – so point this out!

If you do not file a reply brief, the court has to do the work

and find the holes in the government’s argument.

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Reply Brief’s Do’s and Don’ts

Do not repeat your opening brief:

• If you write “As stated in Petitioner’s Opening Brief …” STOP!

Do not repeat in your brief what DHS said in its brief or what the BIA

or IJ said in their decision.

Do respond directly and precisely to your opponent’s arguments;

Do address your weak points as well as your strong points;

Do address and distinguish the cases cited by your opponent;

Do shepardize! You may find helpful cases from elsewhere.

PROOFREAD!

• Errors distract the reader and hurt credibility

• Print and proofread – you will find mistakes you did not

see on the screen

• Leave your draft overnight and re-read in the morning

• Make a deal with a colleague to read each other’s work

(the outline and substantive edits too!)

ORAL ADVOCACY

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Goal is always to convince the IJ to grant

your case before the final hearing!

Preparation is Everything

● Know Facts of Your Case

● Know What You Have to Prove in Court

(elements for Asylum, eligibility criteria for relief)

● Know Which Party Has the Burden and When

● Research all potential bars to relief that may be

raised in your case (1 year bar, crime bars, etc.)

● Know Your Legal Arguments & Case Law in

Support of and Against your position.

Preparation is Everything

● Preparing for Argument and Advocacy

○ Know what works for you: Script? Outline?

Bullet Points?

○ Moots■ Ask colleagues to moot you for argument

■ Moot hearing for your client to practice testimony

on both direct and cross-examination. Ask

colleague to moot tough cross-exam.

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Preparation is Everything

○ Anticipate Trial Attorney’s Closing Argument

- think about and begin to prepare your

rebuttal before the merits hearing.

○ Know where documents are in your record.

○ Practice your argument and/or closing

statement out loud.

Preparation is Everything

● Notes/Lists to ensure that everything gets in: ○ Additional submissions

○ Anticipated Objections You Want to Make

○ Anticipated Objections to Trial Attorney Evid

○ Corrections

● And anything else you don’t

want to forget (like naming

fam/comm members present at

the hearing to support your

client.)

Know Your Audience

• Judge v. Jury

• What do you know about the IJ you are

appearing in front of?

• Speak to other practitioners who might have

litigated similar facts or legal issues before that

particular IJ.

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Word Choice Matters

• Pay very close attention to your word choice.

• Don’t repeat language that exaggerates negative

depictions of client or client conduct.

• Is something an assault, a fight, a confrontation,

an incident? Be honest but don’t be careless.

• Consider the listener’s imagination.

• Oral Advocacy Is Opportunity for Framing

Using Visual Aids in Immigration Court

Explore using visual aids in immigration court.

• Photographs

• Large Poster Boards

• Videos

Visual aids can refocus the Judge’s attention and

convey your point in a more compelling manner.

Manner of Communication

• Remain professional and respectful at all times.

• If you don’t believe in your own case, that will

come across to the adjudicator.

• Intonation

• Identify your oral advocacy weakness and

actively address it.

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Science of Storytelling

“Stories are powerful because they transport us into

other people’s worlds, but in doing that they change

the way our brains work and potentially change our

brain chemistry.”

- Paul J. Zak, Ph.D. on

Empathy, Neurochemistry,

and the Dramatic Arc.

Science of Storytelling

• Stories can release of Oxytocin & Cortisol in the brain.

• Oxytocin associated with care, connection, & empathy.

More oxytocin means people are more generous,

charitable, and compassionate.

• Cortisol associated with focusing one’s attention.

Preparing Clients For Testimony

1. Explain the purpose of direct and cross

examination.

2. Practice direct examination questions with

Client (as many times as necessary).

3. Prepare Client for vigorous cross examination.

4. Provide Client with helpful reading materials.

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Preparing Clients For Testimony

5. Advice to Client:

• Listen to questions carefully and ask for question to be

repeated if necessary.

• Only answer question being asked.

• Never answer a question you don’t understand.

• Okay to show emotion or ask for a break.

• Always remain calm and respectful.

There’s always more to a

story...ADVOCATE

Be willing to dig deep into your client’s life history

and background to provide the Court with context

of client’s actions.

Other Tips

• Be concise

• Use pauses for effect

• In foreign jurisdictions, watch a hearing first

• Be prepared to address your weakest point

• Answer every question directly (“yes, but if I can

explain…”)

• Concede what is necessary to retain your

credibility

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Tips from Immigration Judges

• Always address the Court, not the Trial Attorney

• “Don’t argue about everything. If you argue

about everything, the Judge will think you don’t

believe in anything.” (Advice from a retired IJ at

a recent AILA conference 2017).

• Know the “holes” in your case and try to

address them them before presenting your case

to the IJ.

Preserve Your Record

• Individuals in attendance to support client

• Client’s demeanor if important for record

• TA demeanor if particularly hostile (ie: shouting)

• Preserve legal arguments - submit arguments in

writing in advance wherever possible.

• Seek explicit rulings from the Court

Oral Advocacy Beyond the Courtroom

Most cases require oral advocacy on behalf of a

client that goes beyond the courtroom…

• Getting your client into a rehab program

• Securing a timely letter of support

• Securing a consultation or evaluation from an

expert (especially pro bono or low bono)

• Advocacy with detention officials to address

issues arising for detained clients.

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Writing for Clients & Public

1.What good writing is for client & public

communication

2.Where you can learn it

3.How to practice it & get better

Is your document well written?

Whether writing for clients or judges,

legal writing scholars agree:

You must know how to write well.

That requires mastery of

•Grammar,

•Punctuation,

•Standard style practices, and

•American usage & conventions

What is good writing?

In Plain English for Lawyers,

Richard Wydick says the best

legal language is:

–Clear,

–Concise, and

–Correct.

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What is good writing?

In The Redbook, Bryan Garner

tells us to write:

• Simply,

• Directly, and

• Have empathy for our reader.

Pre-sentencing Advisement

If you are not a citizen, you are hereby advised that conviction

of the offense for which you have been charged may have the

consequences of deportation, exclusion from admission to the

United States, or denial of naturalization pursuant to the laws

of the United States.

becomes...

If you are NOT a U.S. citizen and you are convicted of this

crime, you could be:

• Deported

• Denied entry to the United States

• Denied naturalization

What is good writing?

At Transcend, we follow these writing tips:

• Edit your own work at least twice.

• Find a good editor to work with, someone w/ a similar style.

• Tell your editor what kinds of edits you are looking for (clarity,

grammar, punctuation, organization, brevity, examples, etc.)

• Give examples of the kinds of edits you want / do not want.

• Use Track Changes to Accept / Reject quickly.

• Ask editor to comment RARELY. If the author doesn’t get the edit,

s/he can ask. Time is usually scarce.

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Questions

Questions?(Use the chat box on the right of your screen to ask questions.)

Join Us!

Join a community of over 7,000

advocates dedicated to protecting

and promoting the rights of

immigrants in the United States.

To learn more, visit

www.immigrationadvocates.org

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