It seems that every lawyer who represents asylum seekers has their own style of preparing cases. Not surprisingly, each person thinks his way is the best (of course, they are all wrong, since my way is best).
One big divide I’ve noticed is between lawyers who submit legal briefs with their cases and those who don’t. Whether due to increased efficiency or increased laziness, I am one of the lawyers who generally does not submit a brief with my cases.
When I first started doing asylum cases, I submitted briefs. I felt it was necessary to set forth the law and the facts of my case, and to show why my client qualified for asylum. As time went on, I ended that practice. Now, I only include briefs if there is a sui generis (to use a fancy law school term) issue that deserves elucidation or if there are criminal or persecutor issues in the case.
The way I see it, there are advantages and disadvantages to including briefs with run-of-the-mill cases.
One advantage is that a brief helps the lawyer organize her thoughts. It also forces the lawyer to specifically set forth the basis for the claim and might help exposes weaknesses that can be addressed prior to submitting the case. Briefs are also helpful for cases involving “particular social groups,” where the brief can clearly define the social group. Further, since lawyers should always be thinking one or two steps ahead, a brief creates a road map for appeal. When Immigration Judges and Asylum Officers see that an applicant is well-prepared to continue litigating his case, they may be more likely to grant relief. In addition, for new lawyers or lawyers who don’t normally represent asylum seekers, a brief can be particularly helpful for the lawyer to understand the law and how the facts of the case meet the legal requirements.
There are also disadvantages to writing briefs. The main disadvantage is that writing a brief is time consuming. Lawyers have limited time to prepare cases and we need to be efficient. Time spent preparing a brief might better be used for gathering evidence, doing country condition research or preparing witnesses for trial. My sense is that IJs and Trial Attorneys often do not read legal briefs, except if there is a legal issue that concerns them. They already know the law, and they will gain a better understanding of the facts by reading the applicant’s story and reviewing the evidence. Again, it is a question of efficiency–Asylum Officers and IJs have limited time to review cases, and they need to use their time wisely.
Also, for normal cases, where the law is not in dispute, a brief can be a distraction. Conscientious fact-finders will often feel obliged to read everything submitted with an asylum application. A brief that spends three pages “educating” the fact-finder about the law of asylum might be seen as condescending and does not provide information that will help the client.
Instead of a brief, I like to write a paragraph (or maybe two) explaining the basis of the claim. If there is a particular social group, I define what that is. I also include a detailed summary of the client’s affidavit and each piece of evidence. To me, this is more useful to the IJ than a brief because she can read the summary and gain a good understanding of the case.
All that said, there of course is no “right way” to present an asylum case. Each lawyer must decide what is best for herself and her client.
Perhaps limiting the time for the alien to submit a brief is a way of stopping her from dragging out her final removal date. But given the one to two year (or more) time frame for these appeals, is another few weeks going to make much difference?
With more time, we can expect better briefs–not only from the private bar, but also from DHS. I imagine this would result in better BIA decisions. There is really no good reason for such short deadlines with the BIA. The Board should consider extending the time for filing briefs.