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First Circuit Appeals Court Victories Continue String of BC Law Successes

BC Law faculty and students have had remarkable success in the United States Circuit Courts of Appeals in 2015. Earlier this year, teams of students arguing before the Ninth Circuit Appeals Court in California as part of the School’s innovative Ninth Circuit Appellate Program won both of their immigrations cases. Now, two December decisions by the First Circuit Appeals Court point to more successful collaborations—this time between professors Mary Holper and Sharon Beckman and their students.

Professor Holper and former students in the Law School’s Immigration Clinic received a remand from the First Circuit to the Board of Immigration Appeals to reconsider their case for a client who had previously been facing deportation.

Working closely with then-clinic students Xing-Yin Ni and Kate Scanlan, Holper brought the case to the Court after a long-awaited decision from the Board of Immigration Appeals in November 2014. In that decision, the Board ruled that their client was barred from asking for withholding of removal, upholding a judge’s prior decision that prohibited her from presenting any evidence on her fear of returning to Costa Rica, where her domestic abuser awaited her, because her 2010 conviction for aggravated identity theft was a “particularly serious crime.”

Holper assigned Ni and Scanlan to the case, and the students argued in their briefing that “particularly serious crime” should be reserved for only the most heinous of criminal acts. Longstanding precedent by the Board of Immigration Appeals found that only violent offenses fit under that definition. The argument that won them a remand, however, turned on a technicality: because their client’s deportation proceedings had started before the last major overhaul of immigration law in 1997, she could take advantage of a provision in a 1996 statute that stated that, for particularly serious crime determinations, the judge has to consider compliance with Refugee Protocol before finding that someone is barred from seeking refugee protection.

“Neither the immigration judge nor the Board of Immigration Appeals had considered this—in fact, the Board noted that the judge had missed the point about applying the old law but that the “particularly serious crime” analysis would be the same under the new or the old law,” Holper said. “I’m incredibly proud of Xing-Ni and Kate. Their innovative and original approach led directly to the Court’s findings in our favor. Their contributions to this case cannot be overstated.”

Holper argued the case before a panel of three judges on the First Circuit in September 2015, as the timing did not allow for Ni or Scanlan, who had already graduated, to argue with her, although they attended the proceedings.

In a separate case handled by Professor Sharon Beckman, United States v. Castro-Vazquez, the First Circuit Court of Appeals vacated Castro-Vazquez’s 78-month sentence, ruling that district court erred in its application of the career offender guideline and remanded the case for further proceedings. Beckman had been appointed as counsel for the defendant by the Court’s Criminal Justice Act Appellate Panel, and two current BC Law students, Larissa Warren ’16 and Graham Welch ’17, played such an important role in the appeal that their names appear in both the briefs and the Court’s decision.

“As my research assistants, they played a critical role in researching and developing the appellate arguments and also in editing and filing the briefs,” Beckman said. ”Graham sat with me at counsel table during the oral argument in July. Timothy Wright ’16 and Julia Rindler ’14 also contributed research assistance. I’m so proud of all of them for their extraordinary contributions to the case.”

The appeal from a conviction and the 78-month sentence imposed in the District of Puerto Rico presented issues of first impression regarding the constitutionality and interpretation of the career offender sentencing enhancement provision of the United States Sentencing Guidelines, Beckman said. “The appeal was especially challenging because the legal arguments raised on appeal were not raised by the trial attorney, triggering the most deferential standard of review on appeal of a criminal case—the “plain error” standard. It is extremely rare for the First Circuit to vacate a criminal sentence on plain error review.”

The Court’s opinion was published in September, but because of a pending petition for rehearing/rehearing en banc, the decision became final on December 1, and the case was remanded on December 9.

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