To Brief or not to Brief: Is it really a Question?

I've been an attorney long enough to know we all have our own unique styles of, well, everything. For most of my life, I've struggled with black and white thinking.  It's a personality deficiency of mine. There was a time early in my career when I couldn't fathom anyone completing a task that wasn't done "the right way," whatever that means.

As I've gained more experience though, I've come to realize that not only do we all do things differently, we also usually have strong reasons for doing things the way we do them.  Different immigration courts or individual IJs sometimes impose their own preferences and we get used to having to meet those demands, firm policies, or any other of a myriad number of reasons can account for what makes us prepare to defend our clients differently.  Overall, I think that's a good thing.

At this point in my career, I've come to sincerely enjoy talking to other attorneys about how they prepare their cases.  I'm fascinated by why they do things the way they do, especially when they do things differently than I do.

I am not ashamed to admit I've incorporated several of the strategies I've learned from those conversations into my practice.  If you're not talking to other attorneys and incorporating the things you learn because you're shy or you refuse to have dialogue with competitors, you're missing a great opportunity to be a better immigration lawyer.

You may have system, but no system's perfect and nobody knows everything, especially in this practice area.  So for all of you out there who think you don't have anything to learn from other attorneys, know this: I feel sorry for you.


Good.  Now that I've got that out of the way, I'm going to revert back to my native form of black and white thinking and talk about why we should all be briefing in removal proceedings.

I talk, better said, I listen, to as many different immigration attorneys who will let me as I can and I've been surprised, nay horrified, at the number of practitioners who choose not to include pre-trial briefs with the applications and evidence in support of relief in removal proceedings.  Why?

No one is such a great orator or capable of producing such an organized application packet that a brief wouldn't be of great value; at least, I haven't met that person yet.  The IJ's I've interacted with seem to prefer briefs too.  Briefing helps build the record and is a great opportunity to get all of your arguments out there in an organized and coherent fashion.  When well done, they make the IJs' lives easier, which certainly doesn't hurt when decision time comes.

I draw almost everything from my brief: my strategy for presenting my evidence to the court, the questions I plan on asking witnesses, my opening and closing arguments (if allowed), ideas for witness prep and the foundations for subsequent briefs in appellate proceedings.  A strong brief in support of your application for relief is like a window to your case.

Take a cue from the Bard of Avon and get writing.

So at the risk of going off on a tangent, I'd like to share the following reasons, you maybe haven't considered, why you should be briefing in removal proceedings.  There're more, but these ring true to me today.

Briefing helps you get to know your case better.  It sounds simple, but it is impossible to write without thinking.  Writing is a mental exercise as much as it is anything else.  By writing your brief, you're thinking about your case.  It is an exercise in putting your thoughts and arguments out there and getting a preview of them before you show them to the IJ and opposing counsel.  Writing helps you evaluate how effective your arguments will be because you can see them, warts and all.  You can literally see the weaknesses in your case and by seeing them, you can glean a better idea of how to polish them.  This gives you the opportunity to sharpen your arguments and your presentation while minimizing the likelihood of having to perform on the fly.

Briefing gives you the opportunity to frame the issues.  Much, if not most, of the time the burden of proof is on our client (i.e., us) in removal proceedings.  In other words, the onus is on us to present our case in such a fashion to prove to the IJ that our client merits relief.  This isn't easy, and we should be willing and ready to use our full arsenal in favor of our clients.  So you're great at closing arguments.....that doesn't mean a well-written brief that supports your oral arguments won't help sway the case in your favor.  We call what we do removal defense, but in reality, it is removal offense. Once removability has been established, DHS basically gets to sit back and claim we didn't meet our burden.  Put them on the defensive.  Write a brief.

It makes the rest of your presentation to the court look good.  True story.  I'm sure there are some out there, but I have yet to appear before an IJ who doesn't prefer pre-trial briefs.  In some courtrooms I've appeared in, a pre-trial brief is mandated.  The Immigration Court Practice Manual recommends briefs.  Need I go on? Why not?  As one IJ put it to me one time, "how can you give me 300+ pages of evidence in support of your application and not provide me with some sort of guide that makes sense of it all."  The immigration courts are overloaded folks.  It's common knowledge.  You should be preparing your application packets to be as navigable as possible for the IJs.  They don't have all the time in the world to try and figure out what it is you're trying to tell them.  Tell them up front by spelling it out in a brief.

Briefs help guard against error.  I don't know about you, but sometimes when I get in the heat of the moment, I forget things.  The adrenaline's pumping, I'm convinced my client's application should be approved, I get excited, whatever.  It's human nature. Writing a brief before the fireworks start and while I am still level headed is a sure way to make guarantee I get everything out I need and want to say.  This exercise in establishing a written record for the court helps before the IJ, but also ensures all of arguments I want to reserve for appeal are secured.

Briefing saves you work when you get to the appellate stage.  Even if you don't turn briefs in to the immigration court, surely you do to the BIA and the circuit courts down the road.  If so, your pre-trial brief easily serves as a road map to use when preparing the briefs all of us know we have to prepare.  Enough said.

Briefing gives you something to show for the thousands of dollars you're charging your clients. We've all had those clients who accuse us of not doing enough or who question our judgment about every little thing.  They might claim we didn't do our job or they could have done things better on their own.  Not if you wrote a well-written brief.  Producing a well-written brief is a great thing to be able to point to when people question whether your bills are justified.

Briefing raises the bar.....for the bar.  Let's face it.  Immigration attorneys do not have the best reputations among a group of professionals (attorneys) who already have pretty much the worst reputation among professionals.  I mean c'mon!  People hate us more than Hollywood or the real estate industry.  Writing briefs won't change our reputation overnight, at least not with the general public, but consider the people to whom our reputation should matter most: judges, opposing counsel and clients.  Briefing shows you are prepared and least, it makes you appear prepared and organized.  It is impossible to write a brief and not have put at least a little bit of thought into how you're going to represent your client.  The brief shows everyone involved that you've put some thought into your work and makes them think: "hey, this attorney took this case seriously!"

Briefing isn't going to solve all of your problems, but it can give you a better reputation with the court, opposing counsel, and mos importantly, your clients.  It also gives you greater control of your arguments, helps build the record and serves as a foundation from which to build your case.  Briefing is a useful tool that should be used regularly. Get writing.....


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