“The Inadequacy of the Brief That Her Lawyer Has Filed … Precludes Our Vacating the Denial of Asylum”

UPDATE (post bumped in light of the update): I asked the lawyer whether he wanted to say something in response; here is what he passed along:

I feel that the brief explained the position in a case which dealt with a narrow issue and not much positive caselaw except for one recent Seventh Circuit case. I had worked for twenty-four hours on that brief on the last night I was working on it and I felt that I worked very hard on it. I have written many briefs before and have won Petitions for Review before and this is the first time the issue of my brief came up. I am working for an office that lost a lot of people due to a scandal that concerned other lawyers that work here, and I now have to handle the work, including the appeal work, that used to belong to five lawyers all by myself. I also believe that if the brief was an issue there were less heavy-handed ways it could have been dealt with than how it was. I had no prior notice that the brief was an issue after it was accepted by the Clerk until the time that oral argument commenced. Overall, I’m very disillusioned, I’d like to work in some other field or quit the practice of law entirely. I’m very disappointed in the result. It certainly wasn’t worth the small fee that I charged. I’m so sorry, everyone.

[My original post follows:]

A sad story that illustrates how clients pay for the errors of their lawyers, even outside the context of criminal law. Perhaps Ms. Chen will be able to have her case reopened by hiring a new lawyer and bringing an ineffective assistance of counsel claim, but that means more money that she might well not have, and more continued upheaval and uncertainty in her life, even if she does prevail.

Here are some relevant passages, from Chen v. Holder (7th Cir. Dec. 11, 2013) (Posner, J.) (some paragraph breaks added); you can see the brief, written by Troy Nader Moslemi of Moslemi & Associates, here:

Once again we confront a challenge to the denial by the Board of Immigration Appeals of asylum to a Chinese woman whom the government wants to deport to China’s Fujian Province. She claims to face a significant risk of persecution there because, since coming to the United States in 2002, she has given birth to two children in violation of China’s one-child policy (the official designation is “family planning policy”)….

The Board’s opinion, and to a lesser extent that of the immigration judge, are flawed. But the inadequacy of the brief that her lawyer has filed in this court precludes our vacating the denial of asylum.

The brief consists almost entirely of verbatim quotations either from the administrative record or from previous decisions of this court. The statement of facts consists almost entirely of quotations from the record, and the summary of argument consists entirely (not “almost entirely”) of an extended quotation from one of our previous decisions. The argument section of the brief consists of nothing but quotations from the record and from previous decisions, until the last few pages, which deal with the plaintiff’s alternative (and clearly meritless) claim for relief — withholding of removal. Most of the material in that section as well is quoted rather than original material, but there is a bit of interstitial material that appears to be original — though none elsewhere in the brief, excluding the table of contents and other purely formal matter.

All in all, in a 49–page brief, if one excludes purely formal matter, there are only five original sentences. A brief so composed is not helpful to either the reviewing court or the client. [EV adds: The reason this is so, which is clear to lawyers and judges, is that precedents and quotations from the record, important as they are, have to be tied to the particular argument that is being made at this stage of this case; mere quotations can't do the job.]

An inadequate brief often signals a desperately weak case. This is not a desperately weak case, but we cannot write a party’s brief, pronounce ourselves convinced by it, and so rule in the party’s favor. That’s not how an adversarial system of adjudication works. Unlike the inquisitorial systems of Continental Europe, Japan, and elsewhere, our system is heavily dependent on the parties’ lawyers for evidence, research, and analysis…. We’re neither authorized nor equipped to write a lawyer’s brief for him.

The inadequacy of the brief in this case is especially unfortunate because the Board’s opinion and that of the immigration judge contain errors that have led to reversals of the Board in previous cases, though there are also, as we’ll see, critical gaps in the petitioner’s evidence. [Extended criticism of the opinions below omitted; so is the moderately detailed explanation of the gaps in petitioner's evidence that, unremedied, mean that she can't prevail, omitted.-EV] …

[T]he petitioner’s failure to present evidence concerning her and her husband’s financial situation is a fatal weakness in her case.

The petition to review the Board’s denial of asylum is


Thanks to Bob Markle for the pointer.