After a case is disposed of at the
trial level, someone will usually be dissatisfied with the
outcome. The
party who is dissatisfied with the lower court's
ruling will often
appeal that decision. In order to appeal the lower court's decision, the party filing the appeal ("the
appellant") must
file an appellate brief with the court, explaining what the appellant thinks the lower court got wrong, why the lower court was wrong, what the lower court should have done, and what the
appellate court ought to do to
remedy the situation. The other side then has thirty days to file a
reply brief, explaining why the lower court's decision made perfect sense as a matter of
law,
precedent, and
public policy, and that, even if it wasn't such a good decision, the appellate court has to leave it alone anyway.
I. Basic Outline of an Appellate Brief
Cover Page†
Table of Contents†
Table of Authorities†
Introduction
Jurisdiction and Venue
Issues on Appeal
Statement of the Case
Statement of Facts
Statement of Related Cases and Proceedings
Summary of Argument
Argument
Conclusion
Signature Block†
Certificate of Type-Volume Compliance†
Certificate of Service†
II. The Individual Sections of the Brief
1. The Cover Page
The cover page informs the
judges and the
clerk of court of the essential facts needed for
docketing the case and scheduling a
hearing: The name of the court, names of the parties, what kind of appeal it is (from a lower court, from an
administrative agency, etc.), and whose brief it is. In a
federal court of appeals, it will look something like this:
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
KHABIBULLAKH BEZIMJONOV,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
On Petition for Review from the
Board of Immigration Appeals
Agency Docket No. A__-___-___
PETITIONER'S OPENING BRIEF
2. Table of Contents
The table of contents shows the page on which every section of the brief is located.
3. Table of Authorities
In order to make the brief more
user-friendly, courts require briefs to include a list of every
case,
statute,
law journal article, and anything else
cited in the brief, including the page on which each
citation can be found. Authorities cited multiple times are often marked
passim rather than listing every single
occurrence in the entire brief. The table of authorities used to be one of the most time-consuming parts of
drafting a brief. In the days of
typewriters and
primitive word processors, one would have to read through the entire brief, noting every occurrence of all of the sometimes hundreds of cases and statutes cited. If the brief was subsequently
revised or rewritten, the Table of Authorities had to be redone completely.
Example:
TABLE OF AUTHORITIES
Cases
Albathani v. INS, 318 F.3d 365 (1st Cir. 2003)...........................................8
Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir. 2000)..............................................36
Woldemeskel v. INS, 257 F.3d 1185 (10th Cir. 2001)..................
passim
3. Introduction
The introduction serves to ease the reader (judge, opposing
counsel, etc.) into the subject matter. It introduces the essential facts of the case and allows
recurring themes to be framed. It also provides a brief
history of the proceedings in the lower court or
agency, and gives the court some clue as to what the lower court's decision was.
Example:
Petitioner Khabibullakh Bezimjonov, a 35 year-old Muslim male, is a citizen of the former Soviet Republic of Turkmenistan. He entered the United States via New York, NY on March 19, 1999, and was admitted as a nonimmigrant visitor for a period not to exceed September 18, 2000. On September 18, 2000, he filed a petition with the Immigration and Naturalization Service for political asylum, withholding of removal, and relief under the Convention Against Torture on the grounds that he was persecuted in Turkmenistan due to his practice of Islam outside of state regulation and that he was more likely than not to be tortured if returned to Turkmenistan.
In an interview with an INS asylum officer on October 17, 2000, Bezimjonov described these fears in detail. Cert. Ad. R. 161-162. While the asylum officer found his testimony to be credible, the officer found him ineligible for asylum, and referred the case to the Immigration Judge. After a hearing that began on January 8, 2000, and was continued to March 6, 2001, the Immigration Judge found Bezimjonov to be ineligible for asylum due to a perceived lack of corroboration of the personal experiences of Bezimjonov and his immediate family, despite the ample country conditions evidence in the record. The IJ also denied Bezimjonov’s request for relief under the Convention Against Torture, and issue to which only one paragraph of the IJ’s oral decision was dedicated, Cert. Ad. R. 46, based on nothing more than the glib (and inaccurate) assertion that “the problem had not exhibited itself in the past.” In so ruling, the IJ made no reference to the well-documented practice of torture in Turkmen prisons in the record. Bezimjonov appealed the IJ’s decision to the Board of Immigration Appeals, which affirmed the IJ’s decision without opinion and declared the IJ’s decision to be the final agency determination on the matter. Cert. Ad. R. 2.
For the reasons explained herein, the IJ’s decision, denying Bezimjonov asylum, withholding of removal, and relief under the CAT, cannot be sustained. This Court should therefore grant his petition for review and hold that he qualifies for asylum, withholding of deportation, and relief under the CAT. At a bare minimum, this Court should remand Bezimjonov’s case so that the INS can give all the evidence in the record the thorough consideration the law demands.
4. Jurisdiction and Venue
This is a brief and relatively simple, but important statement. Every federal court has an
independent duty under Art. III of the
U.S. Constitution to assure itself that it actually has jurisdiction over the case. Venue simply means that, of all the courts having jurisdiction over the case, the case is before the most appropriate court.
Example:
This is a petition for review of a final agency determination of the Bezimjonov’s eligibility for political asylum. This Court has jurisdiction, and venue is proper in this Court, pursuant to 8 U.S.C. §1252(c), because the district in which the IJ completed the proceedings below is located within this circuit.
5. Issues on Appeal
This section lists every
question that the appellate court will have to decide in the case, phrased as
objectively as possible while still favouring one's own side. Some courts, such as the
Third Circuit Court of Appeals, require that the
standard of review - the
yardstick against which the judges will have to measure the lower court's decision on an issue - be included along with each issue, as well as what in the record shows that the issue was "
preserved1."
Example:
Did the Immigration Judge, by apparently failing to examine all the documentation in the record concerning religious persecution, deny Bezimjonov due process?
Where preserved: Cert. Ad. R. 18 n.8 (Brief on appeal to the BIA: “It should be noted that it is questionable whether or not the IJ actually reviewed the materials submitted, due to his unfamiliarity with the Appellants [sic] situation, and with Turkmenistan in general. See TR at 21, LN 23”), 19 (“[…] nor did the IJ appear to give due consideration to the materials that have been submitted in connection with this asylum application that indicate the Appellant will not be safe from further persecution.”)
Standard of review: This Court reviews due process claims for denial of fundamental fairness and procedural regularity. See, e.g. Bauge v. INS, 7 F.3d 1540, 1543 (10th Cir. 1993), Turri v. INS, 997 F.2d 1306, 1309 (10th Cir. 1993).
6. Statement of the Case
The record in a case on appeal is often several hundred pages long, several thousand in complex cases. Judges are overworked, and have no time to wade through the entire record just in order to figure out the basic history of the case. Thus, the
Federal Rules of Appellate Procedure require a statement of the history of the case: how it started, what court heard it, on what
basis it was decided below, etc. Sometimes, it will
overlap somewhat with the Introduction and Statement of Facts.
Example:
Petitioner Khabibullakh Bezimjonov’s petition for political asylum, withholding of deportation, and relief under the Convention Against Torture (CAT) was filed on September 18, 2000. The oral decision of the Immigration Judge denying Bezimjonov’s petition for discretionary relief (“OD”) was entered on March 6, 2001 . A timely appeal was filed, and the Board of Immigration Appeals affirmed the decision of the IJ without opinion pursuant to 8 C.F.R. § 3.1(e)(4) (now 8 C.F.R. § 1003.1(e)(4)) on November 18, 2002. Cert. Ad. R. 2. Both decisions are set forth in the Certified Administrative Record (“Cert. Ad. R.”).
While the asylum officer expressly found Bezimjonov credible, Cert. Ad. R. 161, the officer found him ineligible for asylum because “he has not shown that the government has the inclination to persecute him on account of his Muslim heritage or political opinion […] The applicant has not shown a reasonable possibility of suffering the persecution he fears.” Id. The asylum officer then referred the case to the Immigration Judge, who found Bezimjonov’s testimony credible but concluded that he was ineligible for asylum because he could not corroborate the specific experiences of himself and his family. The IJ gave Bezimjonov’s CAT claims cursory treatment, denying that it was “more likely than not” that he would be tortured based solely on the cavalier statement that “the problem had not exhibited itself in the past.” Cert. Ad. R. 46. Both during the hearing and in his oral decision, the IJ made no reference to any documentation in the record but the State Department reports, and demonstrated a degree of unfamiliarity both with Turkmenistan in general and with Bezimjonov’s circumstances in particular that raises significant doubt as to whether the IJ actually read beyond the State Department documents. Bezimjonov filed a timely appeal with the Board of Immigration Appeals, which affirmed the IJ’s decision without opinion, declaring that decision to be the final agency determination pursuant to former 8 C.F.R. § 3.1(e)(4). This timely petition for review followed.
7. Statement of Facts
The statement of
facts is a
summary of all facts
relevant to the appeal. Depending on what sort of case it is, the length of the statement of facts may vary. In cases in which the appeal deals exclusively with a point of law, or the
interpretation of a
contract, the statement of facts will be short. In cases where the facts and the
interpretation of the
evidence are
at issue, on the other hand, the statement of facts may be quite long.
8. Statement of Related Cases and Proceedings
This is another generally short section. It lists any cases or proceedings pending anywhere that are related to the present appeal. The most obvious example would be a case involving the same
parties, but cases in other courts involving different parties and similar
issues are also included.
9. Summary of Argument
Now that the court has been familiarised with all the major facts in the case, it is time to move slowly toward the actual
point of the
brief: the
argument. The summary of argument is the short form of the answers to the questions posed in the Issues on Appeal. Some people simply take their
subject headings and use a condensed one-to-two-paragraph version of each section of the actual argument. Others do a one-page synopsis of their argument, not paying attention to the exact structure of the argument.
Example:
Petitioner Khabibullakh Bezimjonov seeks review of the Immigration Judge’s order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture and the BIA’s affirmance without opinion of the same.
Both before the IJ and the BIA, Bezimjonov presented both documentary and testimonial evidence of severe human rights abuses in Turkmenistan. These abuses included persecution of Muslims who, like Bezimjonov and his family, seek to practice their religion outside of the state-run religious hierarchy. Not only does Petitioner belong to a group that is subject to state persecution in Turkmenistan, Mr. Bezimjonov himself has been subject to acts of persecution by the Turkmen government, including incarceration, during which he was repeatedly physically assaulted. See Cert. Ad. R. 40. Reports by respected human rights organizations, including Human Rights Watch and Amnesty International, detail an ongoing pattern of torture and unexplained deaths in Turkmen prisons. Although this information was before the IJ and the BIA, and the IJ in fact found Bezimjonov’s fear of persecution to be credible, his petition was denied by both the IJ and the BIA.
Throughout his opinion, the IJ repeatedly attempts to minimize the persecution suffered by Bezimjonov, his family, and others who seek to practice their religion outside of the authoritarian controls of the Turkmen dictator. In so doing, the IJ engages in a striking degree of incomprehensible reasoning, and demonstrates a thorough lack of understanding of the record. The IJ’s apparent conclusion that the Turkmen government does not interfere with Bezimjonov’s religious observances because Bezimjonov does not observe due to of his fear of government interference, see Cert. Ad. R. 43, is but one example. 8 C.F.R. § 208.13(a) provides that “[t]he testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” Here, however, the IJ found Bezimjonov’s testimony to be credible. See Cert. Ad. R. 42. Despite this, the IJ denied Bezimjonov’s applications for discretionary relief because of a perceived lack of corroboration of Bezimjonov’s personal experiences.
The IJ’s opinion gave only token consideration to Bezimjonov’s Convention Against Torture claims, disposing of them in less than one paragraph of a 13-page opinion. While there is no doubt, based on the record, that torture is an everyday occurrence in Turkmen prisons – particularly for pious Muslims like Bezimjonov – and it is also almost inevitable that A- will be imprisoned if returned to Turkmenistan, the IJ disposed of Bezimjonov’s CAT claim without considering all of the factors mandated by the INS’ own regulations.
In so ruling, the IJ ignored both the applicable regulations and repeated holdings from the BIA that clearly state that corroboration of personal experiences not easily subject to verification is not necessary when there is already substantial country conditions evidence in the record. Thus, the IJ’s decision is both incomprehensible as a matter of logic and indefensible as a matter of law.
Despite often-blunt criticism from several circuits over the past decade, the BIA still does not live up to the Constitutional minimum of due process in assessing evidence and argument advanced by asylum applicants. In contravention of its own regulations, the BIA affirmed the IJ’s decision without opinion. However, as described in detail infra, the requirements of the AWO regulation, 8 C.F.R. § 1003.1(e)(4), particularly the requirement that any error committed by the IJ be harmless, were clearly not met. While this clearly represents a deviation from the settled rules under which the BIA operates, the BIA provided no rational explanation for this deviation.
Accordingly, this Court should grant Bezimjonov’s petition for review and hold that he qualifies for asylum, withholding of removal, and relief under the Convention Against Torture. At a bare minimum, this Court should remand the case to the INS for full, thorough consideration in accordance with the applicable legal standards.
10. Argument
The argument is the
centrepiece of the brief. Having discussed the relevant facts of the case,
framed the issues, and introduced the court to the
problems it will have to
solve, the actual argument shifts the brief into high gear. Each
heading of the argument is a clear,
concise statement of the conclusion the court should draw from the section,
e.g. "The Evidence in the Record Would
Compel a
Reasonable Factfinder to Find Bezimjonov Eligible for Asylum." The Argument section describes in
detail what the
applicable law says, how the court should
construe the law in the light of its previous decisions, how the law should be applied to the
facts of the case, and what this should all lead the court ultimately to do. Statements about the
content of the record of the case include
citations to the appropriate page of the record,
e.g. "Cert. Ad. R. 43 – 44," so that the court can find them quickly. Statements of the law are followed by citations to the relevant
statute or
case. The argument takes the
abstract legal
principles and
statutory provisions, examines them, and
synthesises a
framework for deciding the case.
Example:
The record also compels the conclusion that Bezimjonov has established, by a preponderance of the evidence, that he belongs to a group subject to a pattern or practice of persecution. A “pattern or practice” of persecution within the meaning of § 208.13(b)(2)(iii)(B) has been defined as "something on the order of organized or systematic or pervasive persecution.” Woldemeskel, supra, at 1191 (quoting Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995)). There must be evidence of persecution going beyond isolated incidents of abuse of individual members of targeted groups. Woldemeskel, supra, at 1191. However, “to construe the regulation to require a showing of persecution of all the members of the applicant's group represents an unreasonable reading of the ‘pattern or practice’ language.” Makonnen, supra, at 1383. A showing of “substantial group persecution […] coupled with [an applicant’s] special circumstances (including her past individual experiences)” has been held sufficient to establish a “pattern or practice” of persecution. , 213 F.3d 1192, 1201 (9th Cir. 2000). See also Kotasz v. INS, 31 F.3d 847, 852 (9th Cir. 1994) ("Certainly, it would not have been necessary for each individual Jew to await a personal visit to his door by Nazi storm troopers in order to show a well-founded fear of persecution.")
Courts have noted the existence of a certain symbiosis between “pattern and practice” claims and claims of individual persecution. Most asylum claims contain elements of both systematic group persecution and personal targeting of the applicant. “The more egregious the showing of group persecution . . . the less evidence of individualized persecution must be adduced.” Kotasz, 31 F.3d at 853. “Conversely, a stronger showing of individual targeting will be necessary where the underlying basis for the applicant's fear is membership in a diffuse class against whom actual persecution is haphazard and rare.” Chen v. INS, 195 F.3d 198, 204 (4th Cir. 1999) Thus, courts use a “sliding-scale” approach, varying the burden of showing individual targeting based on the evidence of systematic persecution, and vice versa.
The evidence in the record, viewed in its totality, compels the finding that Bezimjonov has met the burden of proving, by a preponderance of the evidence, that he is a refugee under the §208.13(b)(2)(iii)(B) “pattern or practice” approach. Petitioner’s testimony that he belongs to a group subject to persecution by the Turkmen government, namely that of particularly pious Muslims, is uncontroverted. While the IJ, without citing any authority, seemed to accord controlling weight to the question of whether Bezimjonov has been “identified with any Muslim sect,” Cert. Ad. R. 44, this question is irrelevant, as the record shows that the Turkmen government persecutes as “Wahhabi” members of any Muslim sect who practice their religion outside of strict government controls . See, e.g. 1999 Country Report, Cert. Ad. R. 176 (noting, inter alia, that “[g]overnment officials designed the law to target Muslims worshiping outside the system of state-organized mosques.”)
As the record shows, the essential characteristic of the group to which Bezimjonov belongs is a combination of especially devout adherence to Islam and practice of Islam outside of the strictures of state regulation. The label that the Uzbek government places on those Muslims it targets is immaterial. Notwithstanding the irrelevant “Wahhabism” controversy before the IJ, Bezimjonov’s testimony that he falls within the category of “particularly devout Muslims who practice their religion outside of state regulation” is uncontroverted. Thus, the evidence compels the conclusion that Bezimjonov is a member of a group “"of persons similarly situated to him on account of race, religion, nationality, membership in a particular social group, or political opinion” within the meaning of § 208.13(b)(2)(iii)(B).
Under the second prong of the test set out in § 208.13(b)(2)(iii)(B), an asylum applicant must establish, by a preponderance of the evidence, that the group to which she belongs is subject to a “pattern or practice” of persecution. “Pattern and practice” is not defined in the regulation, but this Court has noted that the term refers to “something on the order of organized or systematic or pervasive persecution.” Woldemeskel, supra, at 1191 (quoting Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995)). In the instant case, the Turkmen government’s persecution is not only “organized” or “systematic,” it has in fact been codified into Turkmen law. 1999 Country Report, Cert. Ad. R. 176.
In addition to the ample evidence in the record of the Turkmen government’s crackdown on “Wahhabists” worshiping outside of government control, see Statement of Facts, supra, Bezimjonov testified extensively about the specific incidents of persecution suffered by himself, his brother, and his father. This testimony is summarized supra at 7 (with citations to the record). While the IJ specifically found Petitioner’s testimony to be credible, Cert. Ad. R. 42, the IJ erroneously allowed the lack of evidence corroborating the specific incidents complained of by Bezimjonov to be fatal to his claim to asylum. Not surprisingly, the IJ did not cite any authority for this proposition, which is squarely at odds with the applicable regulations and existing BIA precedent. See e.g. Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987) (“Although every effort should be made to obtain corroborating evidence, the lack of such evidence will not necessarily be fatal to the application.”), 8 C.F.R. § 208.13(a), (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”), accord Matter of B-, supra.
Moreover, Bezimjonov explained the absence of documentation of the specific incidents of persecution suffered by himself and his family. See Cert. Ad. R. 42 (noting that Petitioner did not bring evidence of the persecution he personally suffered because “he was afraid to bring potential corroborating evidence with him to the United states, as it may [sic] be discovered on a routine search of his baggage as he was leaving the country, and because of restrictions, surveillance, and other intrusive governmental policies.”) The IJ did not disbelieve this explanation. The degree of importance the IJ assigned to Bezimjonov’s credibly explained lack of corroborating evidence, despite the fact that his claims of persecution were amply supported by the documentation in the record, is clearly at odds with the BIA’s decision in Matter of S-M-J-, 21 I&N Dec. 722, 725 (BIA 1997), in which the BIA held that
“[w]here the record contains general country condition information, and an applicant’s claim relies primarily on personal experiences not reasonably subject to verification, corroborating documentary evidence of the asylum applicant’s particular experience is not required. Unreasonable demands are not placed on an asylum applicant to present evidence to corroborate particular experiences (e.g., corroboration from the persecutor). However, where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence should be provided. That is, an asylum applicant should provide documentary support for material facts which are central to his or her claim and easily subject to verification […] If the applicant does not provide such information, an explanation should be given as to why such information was not presented.”
The IJ’s opinion does not seek to distinguish Matter of S-M-J-, Matter of Mogharrabi, or Matter of B-, or even to mention them, although they are clearly controlling. Nor does 8 C.F.R. § 208.13(a), which makes it clear that lack of corroborating evidence should not be considered fatal to a claim for asylum, find any mention in the IJ’s opinion. Under § 208.13(a) and clear BIA precedent, the ample documentation of persecution of pious Muslims who seek to worship outside of the state system, combined with Bezimjonov’s uncontroverted, credible testimony as to persecution suffered by himself and his family, compel a finding of past persecution and a well-founded fear of future persecution based on the “pattern or practice” approach of § 208.13(b)(2)(iii)(B).
11. Conclusion
The final portion of the brief itself is the Conclusion. The conclusion briefly sums up everything that was
discussed in the Argument section, and clearly states what - in the particular party's opinion - the appellate court should do. This is followed by the
signature block.
Example:
As discussed above, the IJ/BIA decision is not supported by substantial evidence. Because the denial of due process inherent in the IJ’s failure to examine the entire record, to apply the proper evidentiary standards, and to give more than cursory treatment to Bezimjonov’s Convention Against Torture claim, this Court should grant the petition for review and hold that Bezimjonov qualifies for asylum, withholding of removal, and relief under the Convention Against Torture. At a bare minimum, this Court should remand Bezimjonov’s claims so that the INS can give the record the full, thorough consideration the law demands.
Dated this 11th day of March, 2003
Respectfully submitted
[SIGNATURE]
12. Certificates of Service and Compliance
In order for a court to be able to consider any document submitted by a party to an appeal or a
lawsuit, the party must ensure that its
opponent receives a copy of the document on or before the
deadline established by law. Accordingly, every
pleading - a document submitted to the court making an argument or requesting that the court take a particular action - must be accompanied by a
Certificate of Service, stating when, how, and to what address(es) the pleading was sent.
The
Federal Rules of Appellate Procedure and the various local rules of the courts have created a large body of
law surrounding the exact
formatting of briefs. The FRAP require a 14-point
font with a
serif (
e.g. Book Antiqua,
Courier,
Times New Roman), with double spacing and a one-
inch margin on all sides. Some courts - including the
District of Columbia Circuit - go so far as to require that the pleading be drafted on a specific
word processor. Moreover, there are limits to the length of the brief. Generally, a brief may be no longer than 30 pages (15 for a reply brief). However, the courts recognise that this does not provide enough space for many briefs, given the enormous fonts, margins, and double spacing. Thus, there is an alternative limit based either on word or line count set forth in Rule 32(a)(7)(C), which allows a maximum of 14,000 words or 1300 lines of text (for a
monospaced font). The maximum length of reply briefs is half that of
principal briefs (the first brief filed by each party).
† Does not count toward the type volume limit.
1 If one side wishes to be able to argue an issue on
appeal, it has to bring the issue to the lower court's attention. In the case of
evidentiary issues, this can be done simply by
objecting and stating the
reasons for objection at the time an
improper question is asked of a
witness. If the lower court had no
opportunity to decide the issue, the appellate court has no jurisdiction to decide it.