Writing of the Week (WOW) Brief Practice Exam Wrap-Up

February 2014 MPT-1 In re Rowan

Work through Attack Plan Work through Answer

You just have to PASS!

Attack Plan

• Skim the Instructions • Read the Task Memo • Skim the File • Read the Library/ Outline Law • Read the File • Write the answer

Read Task Memo

• Heading• Your supervising attorney

• Overview of facts• References to File documents• Investigator’s Memo

• Issue/Question Presented• Married in good faith• Denial not supported by

substantial evidence; totality of evidence supports R’s petition

• General Directions• Brief to Immigration Judge• Attached guidelines

Guidelines

• Argument only • Audience: busy judge • Headings: integrate facts and

legal propositions to be persuasive (example)

• Use law and facts • Highlight strengths, minimize

weaknesses

Skim the File

• Attorney’s interview with Rowan

• Affidavit of Cole• Investigator’s report, referred

to in task memo.

Read the Library

• Extract Rule • Identify key facts

• 8 USC S 1186a • 8 CFR S 216.5 • Hua v. Napolitano (15th Cir. 2011) • Connor v. Chertoff (15th Cir. 2007)

8 USC S 1186a

• Alien spouse has conditional permanent residence

• Can JOINTLY file to remove condition

• Can get hardship waiver: remove conditional status without joint filing if the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1) (joint filing requirement).

8 CFR S 216.5

• Alien can remove conditional basis or permanent residence status if• Not at fault in failing to file jointly• Alien entered marriage in good

faith• Marriage terminated other than

by death

8 CFR S 216.5

• Evidence of good faith: commitment by both parties• Financial assets and liabilities

combined• Cohabitation after marriage and

after alien obtained permanent residence

• Children of the marriage• Other evidence deemed pertinent

Hua v. Napolitano

• Procedural posture: Appeal from denial of petition.

• Outcome: Remanded. P satisfied “good faith” requirement.

• Rule: cites 8 USC S 1186a; good faith standard. P must show she “intended to establish a life with spouse at the time she married him . . . even if securing an immigration benefit was one of the factors that led her to marry.”

Hua v. Napolitano• Evidence:

• 2-year courtship • Frequent phone contact • Traveled to meet families • Decided which of them would move to

the other’s country • Planned ceremonies in both countries • Lived together 10 months (before/after

marriage) • Joint health insurance, tax returns bank

accounts, car loan, credit card. • But:

• Application to secure conditional permanent residence submitted within two weeks of marriage

• Married one week prior to expiration of her visitor’s visa

• Husband’s affair during marriage • P moved out shortly after obtaining

conditional residency

Hua v. Napolitano

• Court says: • Timing of conditional residence

application is not suspicious; her visa was expiring; she had to act.

• P did not know of affair until after marriage, so it does not undermine P’s good faith expectations.

• Timing of marriage and separation may be problematic, but need to assess entirety of record

Read the File

• Meeting with Plymouth RR • Problems in “other areas of the

state”• Increase track maintenance • Interfere with RR operations • Track usage; Franklin to

Columbia • Safety concerns, liability

Connor v. Chertoff

• Procedural posture: Appeal from denial of petition.

• Outcome: Affirmed. P DID NOT satisfy “good faith” requirement.

• Rule: good faith standard. Intent to establish a life together. P must prove good faith by preponderance of evidence. Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support [the determination], even if it is possible to reach a contrary result on the basis of the evidence.” Consider actions of parties, documentary evidence, testimony about courtship/wedding. Federal Rules of Evidence do not apply. Evidence must be “probative and fundamentally fair.”

Connor v. Chertoff• Evidence:

• Dated for a year • Married; moved in with wife’s family, then to

apartment • P took temp job out of state • P accused W of being unfaithful; she suggested

divorce • Divorced after 19 months of marriage • W’s affidavit: P married her to get citizenship. Didn’t

spend time together, didn’t take marriage seriously. • Joint tax return, unsigned lease for apt, checks

from joint account, phone bills, life insurance application, vehicle title application – but no evidence applications had been filed

• Letters from W • Letter from nurse who said W accompanied P at

appointments. • P’s credibility questioned: did not tell immigration

about his children; demeanor at hearing; P took job out of state within 8 months of marriage; lack of evidence from family/friends re: marriage

Read the File

• Task Memo• Interview with Rowan• Affidavit of Cole• Investigator’s Report

Timeline

• Met in 2010• Moved in together• Married 12/27/10• Moved to US 5/11• Cole moved to Olympia 4/13• Divorce finalized 11/15/13

Documents

• Lease• Promissory Note (car)• Joint Bank Account (2/12-5/13)• Divorce judgment

Other Facts

• Citizenship; met in UK • Rowan thought he’d have better job

prospects in US; contacted Franklin library w/o telling Cole.

• After moving to US, Rowan got job in Franklin.

• Lived together 2 years; Cole traveled a lot. Rowan rarely contacted her.

• Cole says Rowan disinterested in her work; objected to her travel

• Socialized primarily with Rowan’s friends, who will testify favorably.

• Cole accepted job in Olympia; Rowan looked into jobs in Olympia but declined to move.

• Cole filed for divorce. • Cole says Rowan married her primarily to

get US residency but showed “lack of commitment” to relationship.

Apply the Rule to the Facts

• Favorable Evidence of Good Faith• Length of relationship• Documents• Testimony of friends• Cole, not Rowan, moved

out

Apply the Rule to the Facts

• Unfavorable Evidence (Good Faith)• Cole says he married to get

residency• Cole says he was

disinterested in her work and friends

• Rowan declined to move with Cole

• Rowan was already thinking of moving to US before relationship with Cole.

Apply the Rules to the Facts

• Lack of Substantial Evidence for Denial of Petition• Rowan has not omitted any

important information from his application (no credibility issue)

• No internal inconsistencies in Rowan’s version of events

• Statements in Cole’s affidavit can be rebutted or disposed of as opinion. If he married her to gain US residency, this is sufficient to defeat his claim.

Organization of Argument

• Rowan married Cole in good faith• Denial of Petition not supported by

substantial evidence

Point Headings

• Rowan married Cole in good faith, intending to build a life with her in the US and sharing financial obligations.

• The denial of Rowan’s petition was not supported by substantial evidence because there was insufficient evidence challenging Rowan’s good faith to meet the substantial evidence standard.

Good Faith CREAC

• C: Married in good faith • R: statute, CFR, additions from

cases • E: Explain using evidence from Hua • A: Compare Rowan to Hua;

distinguish Connor; neutralize negative facts

• C: Married in good faith

Substantial Evidence CREAC

• C: Denial not based on substantial evidence

• R: Definition of “substantial evidence”; inapplicability of F.R. Evid. in Connor

• E: Explain using Connor• A: Distinguish Connor. Rebut

affidavit. • C: Denial not based on substantial

evidence

Self-Evaluation

• Identified legal rules • Identified determinative facts • Persuasively support

conclusion• Organized answer as

expected, including point headings