By Matthew Boles,
Background
According to the ABA Student Lawyer magazine, unpaid internships, primarily in the summer between the first and second year, consists of research and writing.[1] More than 80 percent of the top 200 law schools indicate that legal research is a mandatory course for first-year students.[2] A 2013 Insights Report states associates spend nearly one-third of their time on legal research.[3] As students and lawyers research issues, headnotes can be a useful tool to read summaries of cases and find other similar cases.[4]
This exercise helps students look past the headnotes when reading cases and making arguments that courts should follow precedent or whether the case is distinguishable. I practice immigration law and use a four-page decision from the Board of Immigration Appeals (BIA) as an example case. Students will read facts from a hypothetical scenario I created, read the decision and headnotes, and determine whether the headnote about a conviction for Driving Under the Influence (DUI) is sufficient.
Directions:
- Have students read the “Overview of Client’s Case” section
- Next, students will read the headnotes of the decision, Matter of Siniauskas,[5] take notes, and make a conclusion as to whether the case applies to our hypothetical situation, and if so, how. [Click here to access Matter of Siniauska (pdf)]
- Read the case and determine whether the headnote about a DUI addressed the issue. I highlighted portions of the decision. I provide some information below as to why we do not cite headnotes in decisions.
Overview of Client’s Case
The attorney is an immigration lawyer and works at a small firm. She handles many types of immigration matters, from submitting petitions to United States Citizenship and Immigration Services (USCIS) on a wide variety of matters, to representing immigrants who have court at the Executive Office for Immigration Review (“immigration court”). Up to this point, her work has been for immigrants who are not detained. As the firm grows, however, she begins taking cases where clients are detained by Immigration and Customs Enforcement (ICE). The firm is contacted by a family whose family member is in an ICE facility about two hours from your office. The facts are below, but ICE files a Notice to Appear (form I-862) with the immigration court. The client’s family retains the firm to represent him in immigration court. The attorney files the Notice of Entry of Appearance as Attorney or Representative Before Immigration Court (form E-28) and completes the proof of service. She is prepared for his Master Calendar hearings, preliminary type of hearings, but understandably she wants to request a custody redetermination hearing (bond hearing) in hopes that her client will be released from ICE custody and have his case transferred to a non-detained docket.
Here are the facts of the client’s case. He is an immigrant whose sole entry to the United States was in 2005. He entered without inspection and has never applied for nor received any type of visa or lawful immigration status. In 2007, he meets a woman who he marries in 2010. His wife is a United States citizen. In 2012, she gives birth to their first child, a healthy baby boy. Three years later, they have their second child. This time they have a girl, and she has some health issues. He has a full-time job, working six days a week to support his family. He is the main source of financial support for his family. In addition to working, he and his family attend church every Sunday, and he is well-respected in the community.
One day after work, he and a couple of colleagues had a couple of drinks. He was driving home alone in his car when the police arrested him for a DUI. The DUI did not result in injuries or property damage. He pleaded guilty, received credit for time served, and paid the fine. A couple of days before he was scheduled for release, ICE placed an immigration detainer (immigration hold), and he was transferred to ICE custody. The DUI is his only criminal history (remember that immigration is civil, and not criminal. ICE is alleging he violated the Immigration and Nationality Act).
Since he has been detained, his family has struggled. His children, ages 9 and 6, are having trouble focusing at school. His wife had to find a second job and is constantly worried what will happen to her husband. The attorney has already collected letters of support from friends, family members, the church, and other relevant documents she will include as exhibits in the motion. She also obtains the criminal disposition for the DUI and arrest report. She also obtained a letter from Alcoholics Anonymous, stating his client would be able to attend meetings if he is released from the ICE facility. In her notarized letter, the client’s wife states she will drive him so that he will not have to drive, and she provides her driver’s license, proof she owns a car and car insurance.
Since the attorney is new to detained work, she begins to research relevant BIA case law. She feels confident that her client would not be considered a flight risk given his family and community ties, but she is worried that the client may be considered a danger to the community based on the DUI conviction. As she researches cases, she finds a 2018 BIA case that addresses DUI in the custody redetermination context. That case is Matter of Siniauskas.[6]
Headnotes from Siniauskas
Below are the two headnotes from the case:
(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.
(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.
Looking at these headnotes, what thoughts comes to mind as it applies to our hypothetical scenario and the client? Just by reading the headnotes, it does not seem promising for the client. The first headnote essentially makes two points: the IJ should consider more than just arrests and convictions, and family and community ties that go to flight risk will not generally address whether a respondent is a danger to the community. The second headnote, however, specifically addresses DUIs and provides the “significant adverse consideration” language.
Next, read the case. I have highlighted parts of the decision. The BIA decision is four pages long, and there was no dissent. Discuss whether students believe the headnotes sufficiently summarize the decision.
Discussion/Information about Headnotes
The BIA precedent chart compiles headnotes.[7] The chart specifically states, “This document is provided for informational purposes only as a convenience to the public. It is not intended as a comprehensive source for preparing an appeal, or for citation in legal briefs, and does not represent an official publication of EOIR.”[8] Headnotes should not be cited.[9] In Supreme Court cases where there is a syllabus (headnote), there is a disclaimer to make clear the headnote is not part of the opinion.[10] The note specifically cites a 1906 Supreme Court case.[11] That case, United States v. Detroit Timber & Lumber Co.,[12] is about a property dispute, but counsel relied on the headnotes of a previous case. The Supreme Court noted, “In the first place, the headnote is not the work of the court, nor does it state its decision…It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports. . .. .”[13]
Returning to the client’s case, reading the case is important to not only understand the BIA’s reasoning but also the specific facts. As the Siniauskas court explained, “[i]n bond proceedings, it is proper for the Immigration Judge to consider not only the nature of a criminal offense but also the specific circumstances surrounding the alien’s conduct.”[14] This is where the facts come into play to distinguish the case from the one in Siniauskas. In that case, the respondent had three DUI convictions, a pending DUI charge, and three out of the four involved accidents.[15] In at least one subsequent unpublished decision, the BIA agreed with an I.J. who found a respondent was not a danger to the community when the respondent’s DUI conviction was his only offense in nine years of living in the United States and his DUI did not result in injury or property damage.[16] Even though BIA unpublished decisions are not binding,[17] they are helpful when conducting research and advocating for clients and their release from ICE custody. In our scenario, our client is closer to the respondent in the unpublished decision. In drafting the bond motion for her client, the attorney should cite both cases and explain why the I.J. should find our client is not a danger to the community. As a practical matter, I often include unpublished BIA cases as exhibits.
Headnotes, no doubt, are a helpful tool that students and practitioners can use when researching and drafting. But encourage students to go beyond the headnotes and delve into the details of the case, rather than exclusively looking at headnotes. This exercise will make students better prepared and ready for internships and eventually when they practice.
[1] Bill Chamberlain, What to Know about Your First Summer Internship, ABA Student Lawyer Magazine, December 1, 2016, available at https://abaforlawstudents.com/2016/12/01/what-to-know-about-your-first-summer-internship/ (last visited Oct. 11, 2021).
[2] Caroline L. Osborne, The State of Legal Research Education: A Survey of First-Year Legal Research
Programs, or “Why Johnny and Jane Cannot Research”, 108 Law Libr. J. 403, 408 (2016).
[3] Steven A. Lastres, “Rebooting Legal Research in a Digital Age,” Insights Paper, 2013, available at https://www.lexisnexis.com/documents/pdf/20130806061418_large.pdf (last visited October 11, 2021).
[4] Case Finding and Advanced Searching Strategies, Robert Crown Law Library, Stanford Law School, available at https://guides.law.stanford.edu/cases/headnotes (last visited October 11, 2021).
[5] 27 I&N Dec. 207, 209 (BIA 2018).
[6] 27 I&N Dec. 207 (BIA 2018).
[7] BIA Precedent Chart, available at https://www.justice.gov/eoir/bia-precedent-chart (last accessed October 11, 2021).
[8] Id.
[9] Id.
[10] See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
[11] Id.
[12] 200 U.S. 321, 337.
[13] Id.
[14] 27 I&N Dec. at 208 (citing Matter of Guerra, 24 I&N Dec. 37 (BIA 2006)).
[15] Id.
[16] N-P-N-, AXXX XXX 692 (BIA Oct. 29, 2018).
[17] See Matter of Echeverria, 25 I&N Dec. 512, 519 (BIA 2011).
