Sunday, August 17, 2008

Second Circuit Criticizes Poor Quality Briefs

The Second Circuit is specifically criticizing immigration attorneys who file briefs that they think are poor quality.

First, in Ren v. BIA, No. 04-6121 (2d Cir. Aug. 14, 2008) (summary order), the Second Circuit criticized Tao Lin of New York City (perhaps this is Tao Lin, an immigration attorney at Caesar & Napoli who has filed appeals before without any personal criticism from the Second Circuit). Seems the Second Circuit believed the brief had the following deficiencies:
  • Poor quality
  • Did not cite the administrative record
  • Inadequate statement of the facts and procedural history
  • Lacks a summary of the arguments
  • Its jurisdictional statement that is incomplete, factually inaccurate, and cites sections that are not relevant to jurisdiction
  • Largely lacks relevant Second Circuit case citations
  • Lacks the standard of review
  • Makes no attempt to connect the facts of the cases to any relevant legal principle.
Hmmm, harsh criticisms from the Second Circuit. The Second Circuit did not impose any sanctions, just warning that if it happens again, they have the power to issue a formal reprimand or refer a complaint to the court's Grievance Panel.

Second, in Yang v. Mukasey, No. 07-4498 (2d Cir. Aug. 13, 2008) (summary order), the Second Circuit warned Gary Yerman of New York, NY that he could be disciplined if he submits a brief that attempts to address issues unrelated to the appeal. It seems that Mr. Yerman has numerous appeals raising a particular issue but that this case was not one of them yet he still included that argument. So his brief wound up arguing something unrelated to this particular case. Submitting a boilerplate brief not tailored to the facts of the particular appeal annoys the Second Circuit.

Another note on that -- a few months earlier, in Wang v. Mukasey, No. 07-4389 (2d Cir. June 10, 2008) (summary order), the Second Circuit referred Gary J. Yerman of New York, NY to the Second Circuit Grievance Panel for misstating the facts of the case. The brief said a key fact was how she had two children born in the United States born 3 years apart but in fact, she had one child born in the United States and one in China more than 3 years apart. The brief also said she and her husband would never consider leaving her children behind in the US but she only has one child with her husband and the other child has been in China since the asylum-seeker left China.

Third, in Shunfi Li v. Mukasey, No. 04-3985 (2d Cir. June 13, 2008), the Second Circuit granted the appeal yet warned immigration attorney Yuming Wang of Wynnewood, Pennsylvania for filing a brief that did not cite a single decision of the Second Circuit and simply repeated word for word her brief to the BIA.

Fourth, in Octavianus v. Gonzales, No. 06-4894 (2d Cir. Sept. 4, 2007) (summary order), the Second Circuit criticized H. Raymond Fasano of Madeo & Fasano in New York, NY for submitting what the court felt was a largely boilerplate brief that did not meaningfully address any of the actual bases for the agency's decisions, waived one of the categories of relief, and did not address how the agency preterminated the asylum claim. It then pointed out a prior warning of using boilerplate briefs in Subekti v. Gonzales, 216 Fed. Appx. 93, 95 (2d Cir. Feb. 5, 2007) (summary order) and referred the matter to the Second Circuit Committee on Admissions and Grievances.  Update: see the comments to this posting for a defense of the quality of Raymond Fasano's briefs and a description of the various types of work and commendable activities he has done.  It's a good reminder that when the Second Circuit criticizes a brief, there may be another side to the story -- the criticism might be too harsh or unfair.

Fifth, in Lin v. Mukasey, No. 07-4330 (2d Cir. May 22, 2008) (summary order), the Second Circuit referred Henry Zhang of New York, NY to the Grievance Panel for filing a brief of poor quality that did not address the BIA's decision being appealed from. In large part it copied the motion that he had filed with the BIA.

Sixth, in Liu v. BIA, No. 07-2986 (2d Cir. March 24, 2008) (summary order), the Second Circuit referred John Z. Zhang of New York, NY to the Grievance Panel for a slew of problems with his brief. On top of that, they had warned him at least four other times not to submit such inadequate briefs.

Seventh, in Porras v. INS, No. 06-3067 (2d Cir. Jan. 23, 2008) (summary order), the Second Circuit referred Jorge Guttlein of New York, NY to the Grievance Panel for a brief of such poor quality that it did not address the actual basis for the BIA's decision. The Second Circuit left it for the Grievance Panel to decide whether to refer it to the Committee on Admissions and Grievances.

Don't forget we should presume people innocent until proven guilty. This does show what the Second Circuit's approach is when it believes it is receiving extremely low quality briefs.


At 10:20 AM, Anonymous Anonymous said...

I am attorney of record that was criticized in Octavianus v. Gonzales, No. 06-4894 (2d Cir. Sept. 4, 2007) (summary order) and in Subekti v. Gonzales, 216 Fed. Appx. 93, 95 (2d Cir. Feb. 5, 2007). I have defended the quality of my briefs in both cases. I respectfully believe that the Second Circuit unfairly criticized me in these cases because it did not understand the nature of the issues that were being addressed. In both cases I briefed whether there is a pattern or practice of persecution against non-Muslims in Indonesia. This is a non-specific argument that applied to non-Muslims in general.

In Subetki v. Gonzales the petition for review was denied by summary order dated 2/5/07. It is respectfully submitted that the panel did not fairly read the opening brief that I submitted in this case. I attempted to show that moderate Muslims are in substantially the same position as Christians with respect to their fear of being persecuted by extremist Muslims in Indonesia.

The Court cited Tedjo v. Gonzales, et al., 214 Fed.Appx. 69 (2d Cir.2007) ; Yanuar v. Gonzales, 209 Fed.Appx. 76 (2d Cir.2006); Hendrik v. Gonzales, 216 Fed.Appx. 91, 2007 WL 449682 (2d Cir.2007) for support of its claim that I recycled or used boilerplate arguments. This is a difficult assertion against which to defend oneself because in each of the cited cases, including the case at hand, I made arguments related to the pattern or practice of persecution against Chinese Christians and moderate Muslims in Indonesia or I argued that country conditions deteriorated for these groups to such an extent that it materially affected their eligibility for asylum. This is a generalized, non-specific country conditions argument that is almost impossible to tailor to a single individual. For example, in a case on which I did not represent the petitioner, the Second Circuit agreed that there may exist a pattern or practice of persecution against Christians in Indonesia. See Mufied v. Mukasey, 508 F.3d 88(2d Cir. 2007). In Mufied the Court did not address any of the petitioner’s specific, personal circumstances and only remanded the case because “[w]hile [the Immigration Judge] did consider the country conditions as described in the background materials, she did so only to inquire whether they would ‘lead to a finding that it is more likely than not that this particular person will be persecuted’ as opposed to the “persecution of a group.” Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007)(emphasis in original).

At the conclusion of the Subetki summary order the Court warned against my “recycling” boilerplate language in future briefs. Despite the Court’s criticism of me in Octavianus v. Gonzales, No, 06-4894-ag, I followed the Court’s warnings.

The Octavianus summary order involved an Indonesian Chinese-Christian whose asylum application was denied by the Immigration Judge. The BIA affirmed the Judge’s denial of asylum.

The panel criticized me for not challenging the agency’s finding that the petitioner was ineligible for asylum because he filed his application more than one year after he arrived in the United States. Unless there is a constitutional challenge to the agency’s finding, the Circuit Court does not have jurisdiction over the “one-year issue.” The one year issue was acknowledged and asylum was waived at a Master Calendar held on April 29, 2003 when the previous attorney stated that “he’s not eligible for asylum. He has a one year bar.” AR. 55.

The panel claims that I used boilerplate language and did not meaningfully address any of the reasons that the agency denied the petitioner’s asylum application. This is not true. The agency found no past persecution. I argued that the agency’s decision was not supported by substantial evidence because there was no analysis as to whether the cumulative effect of past mistreatment rose to the level of persecution. My brief contained a detailed statement of facts that specified each and every incidence of past mistreatment that was alleged by the petitioner. I then extensively discussed a Second Circuit case that is directly on point, Poradisova v. Gonzales. I then concluded the point heading with a reference to the past mistreatment that the petitioner suffered that was similar to the mistreatment suffered by the petitioner in Poradisova. I assumed that the panel would have compared the mistreatment discussed in the statement of facts with the catalogue of mistreatment in Poradisova and in my concluding paragraph.

The panel criticized me by reasoning that the Immigration Judge’s catch all and boilerplate language in her decision that “for the reasons stated therein” after her summary of the testimony means that she did in fact analyze the cumulative effect of the past mistreatment in the aggregate. This is dishonest reasoning by the panel because it cites Manzur v. U.S. Dep’t of Homeland Sec for support of its reasoning. In Manzur the panel reversed the agency’s order of removal and granted the petition for review despite the Immigration Judge explicitly stating in his decision that he did in fact consider the cumulative effect of past mistreatment in the aggregate. The panel remanded because there was no actual analysis by the Immigration Judge on the issue of the cumulative effect. In my brief, I could not cite something that does not exist in the record. The only manner in which I could argue that the Immigration Judge did not engage in a cumulative effect analysis was to state that she did not do it. Neither the Immigration Judge nor the BIA referenced a cumulative effect analysis.

With respect to the claim that my brief is of “poor quality” and contains boilerplate language, I refer to the Third Circuit’s reasoning that “[a]llegations by Indonesian citizens that they were persecuted ‘because they are ethnically Chinese and Christian [and][m]ore specifically, ... were robbed on separate occasions by unknown individuals who targeted them because of their ethnicity and their religion,’ have become a ‘familiar fact pattern.’” Soesilo v. Attorney General of U.S. 2007 WL 2030282 (3d Cir. 2007) quoting Lie v. Ashcroft, 396 F.3d 530, 532 (3d Cir.2005)(emphasis added). Logically, the “familiar fact pattern” will result in familiar decisions and familiar briefs. Countless Indonesian Chinese Christians allege exactly the same mistreatment as the petitioner in the instant case, to wit robberies, ethnic slurs being shouted at them in public, being picked on and bullied in school, assaults, and church disruptions. The analysis is virtually always the same. However, there is always a variation to the degree of mistreatment that is addressed in the statement of facts.

The panel unfairly claims that they have warned me in the past that I may be disciplined. The case that they cite, Subekti v. Gonzales, involved a brief that I filed on October 5, 2006. The brief in the present case was filed on January 2, 2007. The panel did not decide Subekti until February 5, 2007. Accordingly, I did not have the benefit of the Subekti warning when I filed the brief in the present case. The Subekti was filed at the time that I had my personal problems in 2006. I addressed those issues in my response to the Order to Show Cause of January 2007. Indeed, I filed the brief prior to the Order to Show Cause dated January 9, 2007. I do not understand how the panel can outright misrepresent when I was previously warned.

The panel is correct in its criticism of the fact that I referred to background materials that did not exist in the record. When I filed the brief on appeal to the BIA, I assumed that my support staff included the background materials with the submission. They did not. Nonetheless, the agency is permitted to take administrative notice of the State Department Country Reports. I would note that the BIA made no reference to the fact that the Country Reports were not submitted. I noticed the omission of the Country Reports when I was served with the certified administrative record. I then prepared a special appendix that contained the Country Reports that I cited in my brief. The brief references the special appendix. I believe that the panel may have a foundation for the criticism because I have no proof that the special appendix was filed. PACER only refers to the brief being filed. I have no stamped copy indicating a filed special appendix. I assumed that a special appendix was prepared by my staff and submitted.

I submit that the panel should have made mention that I referred to a special appendix in my brief. I am puzzled why the Clerk’s Office or the Staff Counsel did not advise me of the error that there was an omission of the special appendix. I am not suggesting that the Circuit could have cut me a break on this issue but as a house keeping matter, it was no mystery prior to the panel receiving the case that there may have been an issue as to the submission of the special appendix.

My practice is limited to Immigration and Nationality Law. I handle asylum claims, criminal deportation hearings, non-criminal deportation hearings, adjustment of status applications, naturalization and family based immigration. The majority of my practice is devoted to petitions for review in Circuit Courts. I have successfully litigated many petitions for review. The following are published decisions on which I was attorney of record in which the petitions for review were granted : Mei Juan Zheng v. Mukasey, 514 F.3d 176 (2d Cir. 2008); Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008); Rafiq v. Gonzales, 468 F.3d 165 (2d Cir. 2006); Rizal v. Gonzales, 442 F.3d 84 (2d Cir. 2006); and Yi-Tu Lian v. Ashcroft, 379 F.3d 457 (7th Cir. 2004).

I am an active member of the American Immigration Lawyers’ Association, AILA. I have been the Chair of AILA’s New York Chapter Federal Court’s Committee for the last three years. As Chair of the Committee I organize programs on behalf of the Chapter that are recognized for CLE credit by the New York State Bar.

I lecture on panels locally and nationally for AILA on removal proceedings and federal practice. I lectured at AILA’s 2007 annual national conference on the topic of immigration law fundamentals in Orlando, Florida and received excellent evaluations.

I lectured for AILA’s New York Law Symposium in 2006 and 2007 on the topic of filing petitions for review in Circuit Courts. In 2006 and 2007 I appeared on panels with, among other attorneys, Elizabeth Cronin, Attorney for the Office of Legal Affairs, from the Second Circuit, on the topic of practice in the Second Circuit.

0n April 15, 2008 I moderated a panel for AILA’s New York Chapter on the topic of mandamus and petitions for review in district court. The panel included SAUSA F. James Loprest. I recently lectured in Anaheim, CA for AILA at its Immigration Fundamentals Symposium that was held on March 10and 11, 2008.

I am a frequent lecturer for the New York State Association for Criminal Defense Lawyers, NYSACDL, speaking on the topic of the immigration consequences of criminal convictions and removal proceedings. I always receive excellent evaluations. I am considered a reference resource for NYSACDL’s membership on the issue of the immigration consequences of criminal convictions. I offer my advice, free of charge, to the NYSACDL membership on the organization’s Listserve. My advice assists criminal defense lawyers in avoiding convictions that may have negative immigration consequences. NYSACDL has been generous in permitting me to organize, draft and present CLE programs on immigration issues. Although I do not get remunerated for speaking on CLE panels for AILA or NYSACDL, indeed I have to pay AILA the cost of the program in order to be obtain CLE credit, I humbly consider the opportunity to speak as an expert to be an honor. In addition, I speak on CLE panels because I have a dedication to the improvement of the immigration law. I know, that based upon the excellent evaluations that I receive, lawyers who attend my CLE panels walk away with knowledge that they did not previously have.

I am a published author on the subject of immigration law. The following are the articles I have co-authored on the subject: “Why Are You Here? Jurisdiction in District Court for Mandamus Actions Over Delayed Adjudications,” by H. Raymond Fasano, Esq. and Donald F. Madeo, Esq. INTERREL-DAILY 1 April 8, 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).

I view my practice as a vocation to which I was called upon to serve at a young age. My dedication has inspired me to be an innovative advocate on behalf of individuals who have been persecuted in their native countries. See, “Asylum for Sect Follower, China’s Crackdown on Falun Gong drove fearful teen to U.S.,” Newsday, November 6, 1999. (article discusses the fact that I brought the first successful political asylum claim based on persecution on account of Falun Gong membership); “After escaping death she gets new life,” Newsday, June 6, 2004. (article discusses the plight of an Indonesian Chinese Christian woman who had been previously ordered deported and was only granted asylum after I successfully filed a motion to reopen and had asylum granted after a de novo hearing.) This was a pro bono case. With respect to the relief of withholding of removal pursuant to Article 3 of the Convention Against Torture, the Wisconsin Law Journal commented that “attorneys for asylum seekers would be wise to use this case [Lian] as a blueprint.” “Chinese Case Analysis,” Wisconsin Law Journal (8/25/2004)(article refers to my successful representation of the petitioner in Yi-Tu Lian v. Ashcroft, 379 F.3d 457 (7th Cir. 2004). See also “Seventh Circuit Finds IJ’s Analysis of CAT Claim Irresponsible,” 81 Interpreter Releases 1222 (2004).

I enjoy a cordial relationship with the Second Circuit’s Staff Counsel’s Office. As mentioned above, Elizabeth Cronin and I have spoken together on AILA panels. Ms. Cronin has witnessed the manner in which I engage CLE attendees in order to offer them the most entertaining and informative CLE that they have attended. I have had the privilege of working on many, many cases over the years with Lisa Greenberg’s participation. Ms. Greenberg has complimented me on the manner in which I settle cases and proceed in a manner that best utilizes the resources of the Court and the government.

H. Raymond Fasano
Madeo & Fasano
299 Broadway, Ste. 810
New York, NY 10007
(212) 791-7791
(212) 791-9706 (fax)

At 10:00 PM, Anonymous GARY J. YERMAN said...

As a licensed attorney for over 14 years, I, Gary Yerman, find it appropriate and admirable that people have avenues through which attorneys are monitored. We are given a great deal of responsibility and trust to represent our clients zealously and honestly. With that said, I believe it is reckless of this website to malign attorneys without providing all relevant information. Recently, I noticed this website posting about a decision by the Second Circuit Court of Appeals on a brief written by my law firm. This brief, written by an associate whose employment I terminated immediately following said decision, failed to address the relevant issues of the particular case. As this website accurately points out, the Court admonished my firm to be more careful when preparing such briefs. No further action was taken. What this website FAILED to mention are the following:

(1) My law firm, that of Yerman & Associates LLC, has filed hundreds of written briefs with the Court, without a single incident of any misconduct;

(2) My law firm has written over a half dozen legal briefs that have resulted in published decisions with the Federal Courts of Appeals throughout the United States;

(3) I have personally appeared at over two dozen oral arguments before the Federal Courts of Appeals; and

(4) Further, I have been repeatedly complimented on my preparedness at oral argument by some of the top Federal Judges throughout the United States.

I am not “passing the buck” as a result of a mistake made by a former associate of my firm; rather, I am simply adding relevant facts to a website that seems more interested in attacking the competition, than allowing the multiple public agencies, including the in-house grievance committee of the Circuit Courts, to do the job that they have been entrusted to perform. The public has every right to know about attorneys who do not act with their clients’ best interest in mind without being exposed to these petty attacks by competing attorneys circuitously trying to diminish the reputation of respected, honorable attorneys.

Gary J. Yerman, Esq.

At 10:19 AM, Anonymous Rex said...

Gary J. Yerman criticizes this blog for reporting that the Second Circuit criticizes what it believes are poor quality briefs. Mr. Yerman criticizes the blog but never accuses it of inaccurately reporting what the Second Circuit has publicly ruled. It would be more appropriate for him to criticize the Second Circuit for issuing what he believes is an inaccurate and misleading decision.

Gary Yerman accuses the blog of maligning attorneys without providing all relevant information. Yerman should be criticizing the Second Circuit, not this blog, for issuing public decisions that criticize certain attorneys but do not include what Mr. Yerman believes would be all the relevant information.

The blog posting is an accurate report of what the Second Circuit wrote in its public decisions. The posting explains what the Second Circuit has been doing when it receives briefs that the Second Circuit believes is poor quality. Nothing suggests that we independently reviewed any of the briefs that the Second Circuit believes are poor quality. All we looked at was the Second Circuit's description of what was filed.

If the Second Circuit left out relevant information, then that information was also left out of the blog posting -- not because the blog is distorting what the Second Circuit said, but because the blog is accurately reporting the comments of the Second Circuit even though it is possible that the Second Circuit's commentary is incomplete or incorrect.

Nobody should assume that the posting includes independent research about whether the Second Circuit left out relevant information. For example, if the blog reports that the Seventh Circuit believes a particular man was persecuted in India in April 2007, do not assume that we have traveled to India to conduct independent research on whether that man really was persecuted in April 2007. We are just giving an accurate report of what the Seventh Circuit has publicly ruled.

This particular blog posting is far from the petty attack that Gary Yerman claims. The posting noted what the Second Circuit actually stated in official court decisions. Mr. Yerman's criticism of how this blog accurately reported on the Second Circuit's rulings appears misplaced. He should instead criticize the Second Circuit if it issued an incomplete, inaccurate, or unfair ruling. Posting a comment here is one way to criticize or comment on the Second Circuit's public ruling.

At 1:48 PM, Anonymous Anonymous said...

Isn't it funny how Yerman accuses a former associate for the poor quality briefs? Really?? C'mon. Truth is that Yerman's briefs are of poor quality. The Second Circuit is not picky. So when it says your brief sucks, it does. I am an immigration attorney who has written many briefs for the 2nd Circuit and I have never had a problem because I actually care. But many immigration attorneys are low level attorneys. It's rare to find a smart, competent immigration attorney. They are simply of a lower caliber. Too bad for the immigrants.

At 8:27 PM, Anonymous Anonymous said...

actually, the Second Circuit criticized more than just one of your briefs. I don't know you but I have seen your name on the court calendars. Actually, sorry to burst your bubble, but you are not considered to be one of the better immigration attorneys at 26 Fed Plaza. Generally the Judges only consider a handful of private attorneys and most attorneys who work for non-profits like the Door to be good. And I have never heard your name mentioned. Not surprising considering the Second Circuit's comments regarding your BRIEFS

At 3:18 PM, Anonymous Anonymous said...

Who's good at 26 Federal Plaza.
Actually some of the non-profit attorneys and father Bob are good; some are not. Some of the non profits hire people right out of school. The best rule for how good of an immigratoin attorney you are varies in relation to how much the trial attorney's office hates you.
I win over 90% of my cases and they hate me. I'm sure they don't like Gary either.


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