CA2 on Matter of J.M. Acosta, Finality: Brathwaite v. Garland

Brathwaite v. Garland

"[W]e hold that the limitations the BIA imposed in [Matter of] J.M. Acosta [27 I. & N. Dec. 420 (BIA 2018)] are unreasonable. ... [W]e conclude that the specific burden-shifting regime and evidentiary standard demanded by the BIA to show a merits-based appeal is not reasonable.  Specifically, the BIA requires a non-citizen to make a merits-based showing at the notice stage, often before he is able to review the record or identify his arguments on appeal.  The BIA points to nothing in the statutory text or legislative history indicating that this requirement reflects Congressional intent.  Moreover, the requirement ignores the realities of appellate practice. ... The BIA’s burden-shifting scheme and its accompanying evidentiary requirement amounts to an unreasonable and arbitrary interpretation of the IIRIRA.  We therefore GRANT Brathwaite’s petition and REMAND the matter to the BIA for further proceedings consistent with this opinion."

[Hats off to Joseph Moravec, John Peng, Nicholas John Phillips, Paul Skip Laisure and Mark William Vorkink!]