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Penn Law graduate’s Third Circuit argument creates circuit split

March 21, 2016

Few law students ever get a chance to argue in front of a Federal Court of Appeals. But last year, as part of the Federal Appellate Litigation Externship at Penn Law, Amanda Johnson L’15 had the opportunity to argue a case in front of the Third Circuit. In a recently released decision, the court accepted her argument and in doing so created a circuit split with the four other circuits to have considered the issue.

Last year, Johnson was one of the three 3Ls from Penn Law selected to participate in the Federal Appellate Litigation Externship. Each student is given a Third Circuit case and works with two lawyers from Dechert, who have been appointed by the court as pro bono counsel. The student writes the appellate brief with the attorneys in the fall, and does oral argument in front of the Third Circuit in the spring or summer, if argument is granted by the Court.

Johnson argued Milton Orozco-Velasquez v. Attorney General United States, a case involving a Guatemalan citizen who received a notice to appear at a deportation hearing, though no date for the hearing was listed on the notice, and the address for the immigration court was incorrect.

By the time Orozco-Velasquez received another notice with the necessary information, two years had passed. At that point, he had been in the U.S. for over 10 continuous years, and was therefore eligible for cancellation of removal, which would prevent him from being deported.

The fundamental issue in the case is how the “stop-time” rule applies: did Orozco-Velasquez’s ten years stop accruing when he received the first notice, which did not have all the information required by statute, or not until he received the complete second notice?

Johnson argued that time did not stop upon receipt of the first notice, based on the language of the Immigration and Nationality Act, and the Third Circuit, in its opinion filed on March 11, agreed with her, despite the agency’s interpretation that an incomplete notice would do. Johnson worked on the case with Dechert attorneys Stuart T. Steinberg and Ryan M. Moore; the team was appointed by the court as amicus curiae to brief on the legal issues of the case, since Orozco-Velasquez represented himself pro se.

 Penn Law’s Louis S. Rulli, Practice Professor of Law and Director of Clinical Programs, who is the faculty supervisor for the externship, helped Johnson prepare for her oral argument, and Dechert organized moots to get her ready to argue in front of the panel of Third Circuit judges.

 “Amanda brought strong analytical skills and great determination to a very challenging immigration appeal in which several other circuit courts had already ruled against the position she was advancing to the Third Circuit,” said Rulli. “This did not deter Amanda. The Third Circuit’s decision in her favor is a great testament to her extraordinary talent, hard work, and passion for justice, and a tribute to the important difference that Penn Law students make every day in our clinics and externships.”

 “Most attorneys won’t handle an appellate case, much less do the oral argument, until much later in their career,” said Johnson, “and getting to do it as a law student is an incredible opportunity.”

 In a footnote to the decision, the judges thanked Steinberg and Moore, and gave special recognition to Johnson, who they wrote “argued adeptly in support of Orozco-Velasquez.”

Because the case has created a circuit split — four other circuits have ruled that even an incomplete notice stops the clock for eligibility for cancellation of removal — the issue has a chance of heading to the Supreme Court. As of now, two different standards apply, depending on the circuit.

Johnson is now a first-year associate at Arnold & Porter LLP in Washington, D.C., and her experience arguing in front of the Third Circuit has inspired her to take on another pro bono immigration case. She is excited to hear what happens next in Orozco-Velasquez v. Attorney General United States