BIA Invites Public To File Amicus Curiae Briefs Discussing The Application Of The Modified Categorical Analysis Of A Criminal Convention Under Pereida v. Wilkinson, 141 S. Ct. 754 (2021).
On September 30, 2021, the Board of Immigration Appeals (BIA or Board) issued an Amicus Invitation welcoming interested members of the public to file amicus curiae briefs discussing:
- Does Pereida v. Wilkinson, 141 S.Ct. 774 (2021) authorize an Immigration Judge (IJ) to rely on any document or record by INA § 240(c)(3)(B) when conducting a modified categorical analysis of a noncitizen’s removability?
- Is a transcript from a defendant’s sentencing hearing or sentencing modification hearing a document covered by §240(c)(3)(B) and, if it is, can information from the transcript revealing the identity of a controlled substance be considered under a modified categorical analysis?
- In light of Pereida and INA §240(c)(4)(i), can a noncitizen establish by a preponderance of the evidence his or her eligibility for asylum and withholding of removal if the record is inconclusive as to whether his or her conviction constitutes an aggravated felony and a particularly serious crime?
Members of the public who wish to appear as amicus curiae must submit a Request to Appear as Amicus Curiae pursuant to Chapter 2.10, Appendix B (Directory) and Appendix F (Sample Cover Page) of the BIA Practical Manual; each Request must identify that it is responding to Amicus Invitation No. 21-30-09. The decision to accept or deny a request is within the sole discretion of the Board. Briefs filed in conjunction with a Request must also identify that they are responding to Amicus Invitation No. 21-30-09 and should present relevant legal arguments that the parties have not already addressed; an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the BIA. The Board will not consider briefs that exceed the scope of the invitation.
Additional information about the case, including the parties’ contract information, may be available from the Clerk’s Office. Briefs are limited to 20 double-spaced pages. Requests and briefs must be filed with the Clerk’s Office by October 21, 2021; motions to extend the time for filing are disfavored. The Amicus Invitation also addressed issues of the service of the Request and Brief; the notice to be filed by amici, and attribution should the BIA publish the decision. The Clerk’s Office contact and filing address information were also given. No fee required to file a request or brief. Amicus Invitation No. 21-30-09.
