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No. 14-2042 in the UNITED STATES COURT of APPEALS for the FIRST CIRCUIT

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No. 14-2042 in the UNITED STATES COURT of APPEALS for the FIRST CIRCUIT No. 14-2042 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT JOSE RICARDO PERALTA SAUCEDA (A 073-613-148) Petitioner, v. LORETTA E. LYNCH, United States Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals BRIEF OF AMICI CURIAE IMMIGRANT DEFENSE PROJECT, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, DETENTION WATCH NETWORK, COMMITTEE FOR PUBLIC COUNSEL SERVICES, NEW HAMPSHIRE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, MAINE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, POLITICAL ASYLUM/IMMIGRATION REPRESENTATION PROJECT, HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM, BOSTON UNIVERSITY IMMIGRANTS’ RIGHTS CLINIC, SUFFOLK UNIVERSITY LAW SCHOOL IMMIGRATION CLINIC, POST- DEPORTATION HUMAN RIGHTS PROJECT, NINTH CIRCUIT APPELLATE PROJECT AT BOSTON COLLEGE SCHOOL OF LAW, AND PROFESSORS MARY HOLPER AND IRENE SCHARF IN SUPPORT OF PETITIONER’S PETITION FOR REHEARING OR REHEARING EN BANC JAYASHRI SRIKANTIAH MANUEL VARGAS LISA WEISSMAN-WARD ANDREW WACHTENHEIM Immigrants’ Rights Clinic, Mills Legal Clinic Immigrant Defense Project Stanford Law School 40 W. 39th St., Fifth Floor 559 Nathan Abbott Way New York, NY 10018 Stanford, CA 94305-8610 Telephone: (212) 725-6422 Telephone: (650) 724-2442 AILA Doc. No. 16011360. (Posted 1/13/16) DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1 and 29(c), amici curiae the Immigrant Defense Project; National Immigration Project of the National Lawyers Guild; American Immigration Lawyers Association, Detention Watch Network; Committee for Public Counsel Services; New Hampshire Association of Criminal Defense Lawyers; Maine Association of Criminal Defense Lawyers; Political Asylum/Immigration Representation Project; Harvard Immigration and Refugee Clinical Program; Boston University Immigrants’ Rights Clinic; Suffolk University Law School Immigration Clinic; Post-Deportation Human Rights Project; Ninth Circuit Appellate Program, Boston College School of Law; Professor Mary Holper (Supervisor, Boston College Immigration Clinic); and Professor Irene Scharf (Director, Immigration Law Clinic, University of Massachusetts School of Law) state that no publicly held corporation owns 10% or more of the stock of any of the parties listed above, which are nonprofit organizations, state public defender organizations, and law school clinics and professors. Pursuant to Fed. R. App. P. 29(c)(5), amici curiae state that no counsel for the party authored this brief in whole or in part, and no party, party’s counsel, or person or entity other than amici curiae and their counsel contributed money that was intended to fund preparing or submitting the brief. i AILA Doc. No. 16011360. (Posted 1/13/16) TABLE OF CONTENTS INTEREST OF AMICI……………………………………………………………1 SUMMARY OF ARGUMENT……………………………………………………1 ARGUMENT………………………………………………………………………4 I. The Court Should Revisit the Panel Opinion Because It Is Inconsistent With Moncrieffe and this Court’s Decisions in Berhe and Villanueva……………………………………………………………………4 II. The Panel Opinion is Contrary to the Structure of Removal Proceedings, the Regulations, and the BIA’s Decision in A-G-G-………………………...9 III. The Panel Decision Would Require Noncitizens to Produce Records That Do Not Exist or That They Are Powerless to Access………………...13 CONCLUSION…………………………………………………………………...15 i AILA Doc. No. 16011360. (Posted 1/13/16) TABLE OF AUTHORITIES Page(s) State and Federal Cases Almanza-Arenas v. Holder, Nos. 09-71415 & 10-73715 (9th Cir.) (en banc) .................................................. 9 Berhe v. Gonzales, 464 F.3d 74 (1st Cir. 2006) ..........................................................................passim Cheung v. Holder, 678 F.3d 66 (1st Cir. 2012) ................................................................................... 7 Cho v. Gonzales, 404 F.3d 96 (1st Cir. 2005) ................................................................................... 8 Clark v. Martinez, 543 U.S. 371 (2005) ............................................................................................ 11 Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) ............................................................................ 9 Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014) .............................................................................. 11 In re Hannaford Bros. Co. v. Kash N’ Karry Food Stores, Inc., 564 F.3d 75 (1st Cir. 2009) ................................................................................... 7 Johnson v. Att’y Gen., 605 F. App’x 138 (3d Cir. 2015) .......................................................................... 9 Judulang v. Holder, 132 S. Ct. 476 (2011) .......................................................................................... 13 Mellouli v. Lynch, 135 S. Ct. 1980 (2015) .......................................................................................... 5 Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) .................................................................................passim Naizghi v. Lynch, __ Fed. Appx. __, 2015 WL 5257067 (4th Cir. Sept. 10, 2015) ........................ 11 i AILA Doc. No. 16011360. (Posted 1/13/16) Peralta Sauceda v. Lynch, 804 F.3d 101 (1st Cir. 2015) ............................................................................. 6, 8 Prison Legal News v. Columbia County, 942 F.Supp.2d 1068 (D. Or. 2013) ..................................................................... 15 Salazar v. Ashcroft, 359 F.3d 45 (1st Cir. 2004) ................................................................................. 11 Salem v. Holder, 647 F.3d 111 (4th Cir. 2011) ................................................................................ 9 Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014) ................................................................................ 9 Sequa Corp. & Affiliates v. United States, 350 F. Supp. 2d 447 (S.D.N.Y. 2004), aff’d, 437 F.3d 236 (2d Cir. 2006) ..................................................................................................................... 7 State v. Holmes, 818 A.2d 1054 (Me. 2003).................................................................................. 13 Thomas v. Att’y Gen., 625 F.3d 134 (3d Cir. 2010) ................................................................................. 9 United States v. Norbury, 492 F.3d 1012 (9th Cir. 2007) .............................................................................. 7 Villanueva v. Holder, 784 F.3d 51 (1st Cir. 2015) ..........................................................................passim Agency Decisions Matter of A-G-G-, 25 I.&N. Dec. 486 (BIA 2011) ............................................................. 2, 9, 10, 11 Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) ......................................................................... 11 ii AILA Doc. No. 16011360. (Posted 1/13/16) Statutes 8 U.S.C. § 1158 .......................................................................................................... 3 8 U.S.C. § 1158(b)(2)(A) ........................................................................................... 8 8 U.S.C. § 1158(b)(2)(A)(vi) ................................................................................. 7, 9 8 U.S.C. § 1158(b)(2)(B)(i) ....................................................................................... 3 8 U.S.C. § 1182(a)(2) ................................................................................................. 3 8 U.S.C. § 1227(a)(2)(E)(i) ........................................................................................ 4 8 U.S.C. § 1227(a)(4)(A)(ii) ...................................................................................... 8 8 U.S.C. § 1229a(c)(3) ............................................................................................... 6 8 U.S.C. § 1229a(c)(4) ............................................................................................... 6 8 U.S.C. § 1229b(a) ................................................................................................... 3 8 U.S.C. § 1229b(b)(1)............................................................................................... 3 8 U.S.C. § 1229b(b)(2)............................................................................................... 3 8 U.S.C. § 1255(a) ..................................................................................................... 3 8 U.S.C. § 1255(c)(8) ................................................................................................. 8 8 U.S.C. § 1255(h)(2)(B) ........................................................................................... 3 8 U.S.C. § 1255(l)(1)(B) ............................................................................................ 3 8 U.S.C. § 1427(a)(3) ................................................................................................. 3 Federal Regulations 8 C.F.R. § 1240.8(d) .........................................................................................passim iii AILA Doc. No. 16011360. (Posted 1/13/16) State Court Rules Mass. Supreme Judicial Court Rule 1:12 ................................................................. 14 Mass. Dist./Mun. Court Civil Rule 211 ................................................................... 13 N.H. Super. Ct. Rule 3-1 .......................................................................................... 14 Other Authorities
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