REFUGEE, ASYLUM, AND INTERNATIONAL OPERATIONS DIRECTORATE (RAIO)
DATE (see schedule of revisions): 12/20/2019
RAIO DIRECTORATE – OFFICER TRAINING
RAIO Combined Training Program
READING AND USING CASE LAW
TRAINING MODULE
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Understanding and Applying Case Law in Immigration Adjudications, Study notes of Law
A training module from the USCIS RAIO Directorate Officer Training program on 'Reading and Using Case Law'. It provides an overview of the role of case law in immigration adjudications, the types of decisions and their binding nature, and how to find and use case law. It also introduces the IRAC method for briefing a case.
What you will learn
- What is the role of case law in immigration adjudications?
- How can officers find and use case law effectively?
- What are the key resources for finding and understanding case law in immigration law?
- What is the IRAC method and how is it used in briefing a case?
- What types of decisions are binding on immigration officers?
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REFUGEE, ASYLUM, AND INTERNATIONAL OPERATIONS DIRECTORATE (RAIO)
DATE (see schedule of revisions): 12/20/
RAIO DIRECTORATE – OFFICER TRAINING
RAIO Combined Training Program
READING AND USING CASE LAW
TRAINING MODULE
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
This Page Left Blank Intentionally
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
INSTRUCTIONAL M ETHODS
- Interactive Presentation
- Practical Exercises
M ETHOD ( S ) OF EVALUATION
- Written exam
- Practical exercise exam
R EQUIRED R EADING
- RAIO Directorate – Officer Training module: Sources of Authority
- Kerr, Orin S. How to Read a Legal Opinion: A Guide for New Law Students , 11 Green Bag 2d 51 (2007). •
A DDITIONAL RESOURCES
- Administrative Office of the U.S. Courts, Understanding the Federal Courts (Washington, D.C. 2003). http://www.uscourts.gov/EducationalResources/FederalCourtBasics/UnderstandingTh eFederalCourts.aspx
- Negusie v. Holder, 555 U.S. 511 (2009).
- Immigration Stories (ed. with Peter H. Schuck) (Foundation Press, 2005), 388 pp. ••
Additional Resources – International and Refugee Adjudications
Additional Resources - Asylum Adjudications
Critical Tasks
Task/ Skill #
Task Description
ILR6 Knowledge of U.S. case law that impacts RAIO (3) RI3 Skill in conducting research (e.g., legal, background, country conditions) (4) TPM6 Skill in organizing case and research materials (4) C7 Skill in preparing briefings (e.g., case-related, intelligence) (3)
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
SCHEDULE OF REVISIONS
Date Section (Number and Name)
Brief Description of Changes Made By
12/20/2019 Entire Lesson Plan
Minor edits to reflect changes in organizational structure of RAIO; no substantive updates
RAIO
Training
- USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
- 1 I NTRODUCTION .......................................................................................................................
- 2 CASE L AW CONSIDERATIONS .................................................................................................
- 2.1 Case Law Definition ................................................................................................................
- 2.2 When Case Law is Binding .....................................................................................................
- 2.3 When Case Law is Persuasive (Non-Binding) ......................................................................
- 2.4 Statutory Interpretation ..........................................................................................................
- 2.5 The Role of Case Law in Your Work ....................................................................................
- 3 T YPES OF DECISIONS ............................................................................................................
- 3.1 Administrative Decisions ......................................................................................................
- 3.2 Federal Court Decisions ........................................................................................................
- 4 READING AND USING CASE L AW ..........................................................................................
- 4.1 Where To Find Case Law ......................................................................................................
- 4.2 How to Determine If a Case Is Still “Good Law” .................................................................
- 4.3 How to “Brief” a Case ...........................................................................................................
- 4.4 How to Determine Whether a Case is “On Point” ................................................................
- 4.5 Determine Whether a Case is “Distinguishable”...................................................................
- 4.6 How to Follow a “Test” Laid Out by a Court .......................................................................
- 5 CONCLUSION .........................................................................................................................
- 6 S UMMARY ..............................................................................................................................
- PRACTICAL E XERCISES .................................................................................................................
- O THER MATERIALS .......................................................................................................................
- S UPPLEMENT A – I NTERNATIONAL AND REFUGEE ADJUDICATIONS ...........................................
- Required Reading...........................................................................................................................
- Additional Resources .....................................................................................................................
- USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
- Supplements ...................................................................................................................................
- S UPPLEMENT B – ASYLUM ADJUDICATIONS ................................................................................
- Required Reading...........................................................................................................................
- Additional Resources .....................................................................................................................
- Supplements ...................................................................................................................................
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
Throughout this training module, you will come across references to adjudication- specific supplemental information located at the end of the module, as well as links to documents that contain adjudication-specific, detailed information. You are responsible for knowing the information in the referenced material that pertains to the adjudications you will be performing.
For easy reference, supplements for international and refugee adjudications are in pink and supplements for asylum adjudications are in yellow.
You may also encounter references to the legacy Refugee Affairs Division (RAD) and the legacy International Operations Division (IO). RAD has been renamed the International and Refugee Affairs Division (IRAD) and has assumed much of the workload of IO, which is no longer operating as a separate RAIO division.
1 INTRODUCTION
In everyday conversation, when we talk about “what the law says” or “what the law is,” what we mean by “the law” includes the U.S. Constitution, Federal statutes and regulations, and relevant case law. The purpose of this lesson is to familiarize you with one of the key sources of law that governs your adjudications – case law.
The bodies that produce case law on issues that affect your work in the RAIO Directorate are the Board of Immigration Appeals (BIA), the Attorney General (AG), and the federal courts. The terms case law, case(s), legal opinions, opinions, and decisions are used interchangeably in this and other modules and are distinct from legal memoranda issued by the Department of Homeland Security (DHS) Office of General Counsel (OGC) and the U.S. Citizenship and Immigration Services (USCIS) Office of Chief Counsel (OCC).
Although you may not read case law on a daily basis, case law is a body of law that is behind the majority of your adjudications and determinations and that you are required to follow. During the course of your work you may need to research, read, and cite to case law if: the law on a particular issue changes; an attorney cites to a case to support his or her client's claim; or you find the need to cite to a case to support your own decision or determination.
It is important for you to know how to find a case, read a case, and cite to a case, as well as how to recognize which cases are binding on you (mandatory authority) and which cases are not binding (persuasive authority) but which you may turn to for guidance in your reasoning, decisions, and determinations.
This module is meant to guide you through the basics of reading and using case law so that you may stay up-to-date with changes in the law and use case law when you are
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
Immigration-related case law consists of both administrative law and federal court decisions that interpret the language of the Immigration and Nationality Act (INA) issued by, in order of descending binding authority:
- U.S. Supreme Court
- U.S. Courts of Appeals, aka United States Circuit Courts of Appeals^4
- U.S. District Court (in very limited circumstances)
- Attorney General (AG)
- Board of Immigration Appeals (BIA)
2.3 When Case Law is Persuasive (Non-Binding)
You are required to follow mandatory authority when applicable. Persuasive authority need only be consulted for guidance or where mandatory authority does not exist in a particular area or jurisdiction. You may not rely on non-binding authority if it conflicts with authority that is binding.
2.4 Statutory Interpretation
Another way to think about case law is that when the INA and corresponding regulations in Title 8 of the Code of Federal Regulations (the 8 C.F.R.) do not define some of their own key terms, or when disputes arise over the meaning of terms contained in the INA, administrative agencies and federal courts publish decisions that interpret the terms and issues more clearly. The text of the INA is intentionally broad and often vague. Case law is what we rely on most heavily for guidance on how to apply and interpret the terms contained in the INA and the regulations.
Issuing courts and administrative bodies interpret the INA following the general principles of statutory interpretation, which begins with reading the language of the statute itself. Courts often rely on "the ‘plain meaning rule, that, if the language of the statute is clear, there is no need to look outside the statute to its legislative history in order to ascertain the statute's meaning."^5 If the language of the statute does not provide clear guidance, the statute "should be read as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes."^6 As part of interpreting the language of a statute in a broader context, courts will also look to legislative intent for guidance.^7
(^4) American Jurisprudence , “Judicial Precedents as Binding or Persuasive,” 20 Am. Jur. 2d Courts § 129 (2010).
(^5) Kim, Yule, American Law Division, Congressional Research Service. CRS Report for Congress, Statutory Interpretation: General Principles and Recent Trends. Updated August 31, 2008. (^6) Kim, Yule, Statutory Interpretation: General Principles and Recent Trends. 2008.
(^7) Kim, Yule, Statutory Interpretation: General Principles and Recent Trends. 2008.
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
Example
Section 101(a)(42) of the INA, in part, defines a “refugee” as a person who, because of persecution or a well-founded fear of persecution is unable or unwilling to return to his or her country of nationality. Neither the INA nor the 8 C.F.R. define or further elaborate on the meaning of "persecution." Does persecution only mean physical harm? How severe does that physical harm have to be to qualify? Are there other forms of harm that can constitute persecution? Over many years, the BIA and the U.S. Courts of Appeals have attempted to define the parameters of what constitutes persecution for the purposes of asylum and refugee law by analyzing the issues in various published decisions. You will turn to those cases for guidance on whether the harm the applicant suffered was persecution.
Example
Section 212(h) of the INA states that an individual who is inadmissible based on certain criminal grounds of inadmissibility may have those grounds waived if he or she can show that denial of his or her admission to the United States would result in extreme hardship to a United States citizen (USC) or lawful permanent resident (LPR) spouse, parent, son, or daughter. Neither the INA nor the regulations defines extreme hardship. Therefore, when you are adjudicating a Form I-601, Application for Waiver of Grounds of Inadmissibility , you would look to case law for factors to consider when determining whether the qualifying relative has suffered extreme hardship.^8
2.5 The Role of Case Law in Your Work
Case law plays a vital role in all of your adjudications and determinations. As an officer, you will read case law for the following reasons:
Staying Updated on the Developments That Directly Impact Your Work
The law as interpreted through case law is constantly changing and evolving. As new cases with new sets of facts make their way through the courts, the courts refine their previous decisions. This process often takes many years.
Knowing how to read case law allows you to see and understand where legal principles directly related to your adjudications come from and how they affect the work you do. When a new case is published, it will be important for you to know how to read it and to understand how the court’s decision impacts how you do your job. If a lawyer in a case before you cites to specific case law, it will be important for you to know how to read the case(s) and evaluate whether the case supports the applicant’s case.
(^8) See, e.g., Hassan v. INS , 927 F.2d 465 (9th Cir. 1991); Matter of Anderson , 16 I&N Dec. 596 (BIA 1978); Matter of O-J-O- , 21 I&N Dec. 381 (BIA 1996); Matter of L-O-G- , 21 I&N Dec. 413 (BIA 1996).
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
The Board of Immigration Appeals (BIA)
IJ decisions may be appealed to the BIA, either by the individual or DHS. You must follow published BIA decisions when adjudicating cases involving similar issues, except when the decisions are modified or overruled by subsequent decisions of the BIA or by the Attorney General, or when there is a conflicting decision on the issue by the U.S. Court of Appeals in the circuit in which the decision is being made or by the Supreme Court. Published BIA decisions apply nationwide, except in federal circuits with conflicting law.
There is one exception to the requirement that officers follow U.S. Courts of Appeals opinions that conflict with BIA statutory interpretation on the same issue.^9 When the BIA issues a decision that interprets an ambiguous statutory provision and that new BIA opinion conflicts with previously issued U.S. Court of Appeals rulings, the BIA’s ruling must be followed, unless the prior judicial precedent held that the court’s construction was the only permissible reading of the statute. In other words, a court’s prior interpretation of a statute will overrule an agency’s subsequent interpretation only if the relevant court opinion held the statute unambiguous. If a U.S. Court of Appeals revisits the issue in light of the BIA’s new ruling, officers must follow the new Court of Appeals ruling.
You must follow published BIA decisions, unless they have been modified or overruled by later BIA, Attorney General (AG), Supreme Court, or controlling U.S. Court of Appeals decisions.
In the past, the BIA issued precedent decisions in "Interim Decision" form. Becaus e all published decisions are now available in final form (as "I&N Decisions"), citations t o "Interim Decisions" are no longer appropriate and are disfavored.^10
All published BIA decisions may be found in the bound volumes of Administrative Decisions under Immigration and Nationality Laws of the United States. They are cited by volume. You may also access them on the internet at:
http://www.justice.gov/eoir/vll/intdec/lib_indecitnet.html
Citing to BIA Decisions
Example
Matter of Acosta , 19 I&N Dec. 211 (BIA 1985).
(^9) National Cable & Telecomm. Ass’n v. Brand X Internet Services , 545 U.S. 967 (2005).
(^10) For the BIA’s preferred citation convention, see http://www.usdoj.gov/eoir/vll/qapracmanual/pracmanual/AppJ.pdf
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
This decision may be found in volume 19 of Administrative Decisions under Immigration and Nationality (I&N) Laws of the United States at page 211. It was decided by the BIA in 1985.
Attorney General (AG)
The Attorney General has the authority to review BIA decisions. 11 Cases may be referred to the Attorney General by DHS, the BIA, or the AG.^12 The AG may vacate decisions by the BIA and issue his or her own decisions. Generally, the AG decisions are published, precedent decisions.
3.2 Federal Court Decisions
Jurisdiction to interpret the INA and resolve disputes regarding immigration matters falls under the federal courts. There are three levels of courts in the federal judicial system: U.S. District Courts, or trial courts; U.S. Courts of Appeals which are divided into thirteen judicial circuits, and the U.S. Supreme Court.
United States District Courts
U.S. District Courts are federal trial courts where issues of fact are resolved by a judge or a jury. The judge may also rule on matters of law.
Typically, U.S. District Court decisions are not binding on other courts or on you. The BIA takes the position that it is not bound to follow the published decision of a U.S. District Court case arising within the same district as the matter before it.^13
Citing to U.S. District Court Decisions
U.S. District Court cases are contained in the Federal Supplement.
Example
Dwomoh v. Sava , 696 F. Supp. 970 (S.D.N.Y. 1988).
This decision may be found in volume 596 of the Federal Supplement on page 970. It was decided by the Southern District of New York (S.D.N.Y.) in 1988.
(^11) 8 C.F.R. § 1003.1(d)(1)(i).
(^12) 8 C.F.R. § 1003.1(h)(1).
(^13) See Matter of K-S- , 20 I&N Dec. 715 (BIA 1993).
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
Example
An officer deciding a case arising in the territorial jurisdiction of the Court of Appeals for the Second Circuit must evaluate the case consistently with published Second Circuit decisions (and precedent BIA or AG decisions) involving similar issues. That officer may seek guidance from the decisions of U.S. Courts of Appeals in other federal circuits but may only follow those holdings to the extent they do not conflict with published decisions rendered by the Second Circuit, the BIA or the AG. If the Court of Appeals for the Second Circuit and the BIA have conflicting decisions, the officer is bound to follow Second Circuit precedent.
Citing to U.S. Courts of Appeals Decisions
Decisions by the U.S. Courts of Appeals are contained in the Federal Reporter Series (1st, 2d, and 3d).
Example
Fatin v. INS , 12 F.3d 1233 (3d Cir. 1993).
This case can be found in volume 12 of the Federal Reporter, 3rd Series, on page
- It was decided by the United States Court of Appeals for the Third Circuit in
The United States Supreme Court
The U.S. Supreme Court has the discretion whether or not to hear appeals of decisions by U.S. Courts of Appeals. A party to a Court of Appeals decision seeking to appeal that decision files a petition for a writ of certiorari with the Supreme Court. The Supreme Court issues the writ of certiorari if it decides to hear the appeal. If the Supreme Court denies the petition for a writ of certiorari, the ruling of the Court of Appeals stands.^16
The U.S. Supreme Court Rules provide some indication as to how the Supreme Court exercises its discretion to grant a petition for a writ of certiorari. Factors the Supreme Court may consider (among others) include:
- whether the U.S. Court of Appeals decision conflicts with the decisions of other Courts of Appeals
- whether the decision decides an important federal question that should be decided by the Supreme Court
(^16) The Supreme Court also has jurisdiction in certain other matters described in the US Supreme Court Rules. The Rules, especially Rules 10-20, provide a detailed picture of the scope of Supreme Court jurisdiction. This lesson focuses on writs of certiorari as the other areas of Supreme Court jurisdiction are less relevant to officers in the RAIO Directorate.
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
- whether the Court of Appeals decision decides an issue of federal law in a manner that conflicts with relevant decisions of the Supreme Court The Rules indicate that a petition for a writ of certiorari is rarely granted when the petitioner asserts the U.S. Court of Appeals has made an erroneous factual finding or misapplied a rule of law that it properly stated.^17
Supreme Court decisions are binding on all lower courts and administrative adjudicators throughout the country.
Officers in the RAIO Directorate are bound by Supreme Court decisions regardless of jurisdiction.
Citing to U.S. Supreme Court Decisions
Supreme Court decisions are contained in three different sets of bound volumes. Often more than one set will be cited.
Example
INS v. Cardoza-Fonseca , 480 U.S. 421, 107 S.Ct. 1207 (1987).
This case can be found at either volume 480 of the United States Reporter on page 421, or volume 107 of the Supreme Court Reporter, page 1207. It was decided by the U.S. Supreme Court in 1987.
4 READING AND USING C ASE LAW
As mentioned above, case law provides the underlying framework that informs the analysis of facts in order to arrive at a proper decision for many types of adjudications. In many instances, application of these foundational principles in the cases you adjudicate will be fairly clear-cut.
When you come across adjudications or determinations that are novel, ambiguous, or complex, you will likely turn to additional case law for guidance and sometimes for persuasive authority to justify your decisions. The following are some tips on how to use case law in your decisions when necessary. This section should be read alongside the article How To Read a Legal Opinion.
(^17) See U.S Supreme Court Rules, Rule 10. According to Rule 10, the considerations listed therein neither control nor fully measure the Court's discretion but indicate the character of the reasons it considers when determining whether to grant a petition for a writ of certiorari. The reasons listed are those indicated in the Rules most relevant to the cases that officers in the RAIO Directorate handle.
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
To find out whether a case has been altered by subsequent decisions or legislation you must conduct legal research. Case citators list cases that have referenced a particular case and are the most useful tool in researching whether cases remain good law. The most commonly used citator is Shepard’s Citations ; therefore this process of research is often called “Shepardizing.” Westlaw provides a similar citator service called “KeyCite,” which uses a system of colored flags and symbols next to case and statute headings to alert the reader to subsequent changes that may have affected the precedential value of the case. 23 [Other Materials – KeyCite Symbols]
4.3 How to “Brief” a Case
“Briefing” a case means summarizing it with a focus on the crucial elements of the case. When you first begin reading and briefing cases, it may be helpful to follow the “IRAC” method. IRAC (pronounced “eye´-rack”) stands for: Issue, Rule, Analysis (or Application), and Conclusion. This method is used by beginning law students to help familiarize them with reading and understanding case law. It is also a tool for writing legal memoranda. For purposes of this training module, we will use the IRAC method as a reading tool.
Before attempting to “brief” a case, read the case at least once.^24 As you read the case, keep in mind the four IRAC elements. When you are finished reading the case for the first time, brief the case by identifying the IRAC elements from the case.
In addition to the four IRAC elements, it is also important for you to identify and summarize the relevant facts and procedural history of the case.^25 You will then be ready to not only discuss the case, but to compare and contrast it to other cases involving a similar issue.
When you summarize the facts of the case, remember to check if there was a finding made regarding the credibility of the applicant or evidence. If the testimonial and documentary evidence is credible, then the story, as asserted by the applicant, is treated as established fact.
Determining the procedural history of the case means that you will first identify who wrote or produced the opinion. Was it the U.S. Supreme Court? The Ninth Circuit Court of Appeals? The BIA? The Attorney General? (Hint: Check under the title of the case: the court and year of the decision will be given). Next, you will determine how the lower courts, e.g., the IJ, the BIA, or the Court of Appeals, decided the case.
When using the IRAC method, you will be able to quickly identify:
(^23) Westlaw, “Keycite On Westlaw Next” (Thomson Reuters 2011).
(^24) California State University Northridge, How to Brief a Case Using the "IRAC" Method.
(^25) Id.
USCIS: RAIO Directorate – Officer Training DATE (see schedule of revisions): 12/20/
I: The problem the court faced (the Issue)^26
First, identify the issue(s) on appeal. To determine the issue on appeal, ask, “What is the question presented to the court?” Sometimes, only one issue will be discussed, but often there will be more. You may also ask, “What is the disagreement among the parties and what are they asking the court to decide?”
Example
The main issue in Brown v. Board of Education of Topeka^27 was whether separate public schools for black and white students violated the Equal Protection Clause of the 14th Amendment.
Example
In the case of an asylum seeker, the issue might be whether there is a connection between the harm the applicant suffered and a protected ground listed in the refugee definition of the INA. The answer to that question will help to determine whether the applicant is a refugee and qualifies for asylum or refugee status.
R: The relevant law the court used (the Rule)^28
Next, determine the relevant law the court identifies in its decision. Each case will contain a discussion of the law the court deems relevant.
For purposes of your adjudications and determinations, the relevant law will always refer back to the INA and to case law that has previously interpreted that particular section of the INA.
There may be more than one relevant rule in a case.
Example
In a case involving a waiver of a ground of inadmissibility the relevant rules may concern what constitutes extreme hardship, as well as what constitutes a crime involving moral turpitude.
Under the rule section, do not simply list the type of benefit being sought (such as "asylum" or "I-601 waiver”). Ask “what law must the court apply to the facts to determine the outcome of the case?”
A: How the rule applies to the facts of the case? (the Application or Analysis).^29
(^26) Id.
(^27) Brown v. Board of Education of Topeka , 347 U.S. 483 (1954).
(^28) California State University Northridge, How to Brief a Case Using the "IRAC" Method.