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1de4963eabe4a0eabd5610500aabf06f-A Global Context For 1326 Mitigation

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Best Practices for Oral ArgumentMatt AdamsNorthwest Immigrant Rights ProjectKara HartzlerFederal Defenders of San Diego, Inc.
Tip #1: Know Your (Time) Limits
Plan to make 2-3 points maximumBe disciplined about timeConsider not announcing you’d like to reserve two minutes – just stop yourself
Tip #2: Use Short Declarative Answers
Don’t explain your way into an answer – give a short declarative response and then explain afterwards
Example #1:Judge:So why isn’t this a CIMT?Lawyer:Well, this Court said inNunezthat CIMTs generally have to fall in one of three categories. One category is an intent to harm, but this statute only requires a recklessmensrea. Another category is causing actual harm, butthis statute doesn’t require that the victim suffer any injury orloss. And the third category is that the offense be committed against a protected class of victim, but this statute can be committed against anyone. So
the statute doesn’t involve an intent to harm, actual harm, or a protectedclass.
Example #2 (BETTER):Judge:So why isn’t this a CIMT?Lawyer:Because itdoesn’tinvolve an intent to harm, actual harm, or a protected class.This Court said inNunezthat CIMTs generally have to fall in one of three categories. One category is an intent to harm, but this statute only requires a recklessmensrea. Another category is causing actual harm, butthis statute doesn’t require that the victim suffer any injury orloss. And the third category is that the offense be committed against a protected class of victim, but this statute can be committed against anyone. So it doesn’t fall into any of the three categories of offenses that qualify as CIMTS.
Tip #3: Know How to Pivot
Don’t dig your heels in; be willing to shift to alternative theories.“Even if you disagree with us on X, we still win under Y.”
Tip #4: Strive to Appear Reasonable
What can you concede that won’t hurt you?Acknowledge judges’ concerns“We’re not saying client is an angel, but he still doesn’t deserve X.”
Tip #5: Don’t Avoid Tough Issues
Primary responsibility at arguments is to address concerns raised by Judges—not to simply repeat your favorite pointsBe prepared to address your most vulnerable issues
Tip #5: Don’t Avoid Tough Issues (cont.)
In preparing for arguments, reread your briefs, and try to address any rough or inarticulate arguments.
Tip #6: Prepare two versions
Have one set of key talking points: two or three critical points that you want to address even if you get hammered.Have a long version of talking points: be prepared for when the Judges give you more latitude.
Tip #6: Listen!
The Judges have your briefs, now try to figure out what they are not sold onDo not dodge the questionsDo not interrupt the questionsYes or No
Tip #7: Be Specific on What you Want
Be prepared to tell the Court what is now required to resolve the Petition for Review.E.g., are you seeking a general remand that allows the BIA to reconsider whether the conviction qualifies asa CIMTor has the BIA already had their opportunity and you now ask the Court to resolve the question?

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1de4963eabe4a0eabd5610500aabf06f-A Global Context For 1326 Mitigation