Orrick Team Wins Second Circuit Pro Bono Appeal

November.01.2019

An Orrick pro bono team scored a significant pro bono victory in a Second Circuit immigration appeal.

The case challenged a Board of Immigration Appeals (BIA) decision that classified our client’s prior convictions as crimes involving moral turpitude (CIMTs) and rendered him ineligible for adjustment of status (a defense to removal).

Ned Hirschfeld, supported by Danny Rubens and Andrew Silverman, argued in the Second Circuit that the BIA impermissibly departed from its own precedent on CIMT requirements without a reasoned explanation. Unanimously backing our argument that the BIA’s decision was a procedural error, the Second Circuit panel vacated the prior decision and remanded the case back to the BIA with instructions to reconsider—and adequately explain—its approach to CIMTs, as well as to address whether any new rule could be applied retroactively to our client.

The case came to Orrick through the Second Circuit’s pro bono program; Danny is a member of the court’s Pro Bono Panel.

Ned’s successful oral argument is the latest example of Orrick associates securing success in significant appellate litigation. This summer, Easha Anand scored a major win in the U.S. Court of Appeals for the Ninth Circuit, which in an en banc ruling overturned the life-without-parole sentence of a juvenile offender from Arizona, and Rachel Shalev successfully argued a case in which the New Orleans-based Fifth Circuit invalidated a debtors’ prison scheme. Earlier this year, Chris Cariello won a copyright case in the Ninth Circuit. Now-partner Brian Goldman won a major Second Amendment en banc case in the Ninth Circuit two years ago as an associate.

Bloomberg Law recently profiled Orrick’s approach to building a pipeline of experienced appellate lawyers.

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Ned Hirschfeld Senior Associate, Supreme Court & Appellate

New York

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D:+1 212 506 3745
E: [email protected]

Practice:

Supreme Court & Appellate

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Ned Hirschfeld Senior Associate

New York

Ned focuses on appellate litigation. He has authored successful merits briefs and petitions for certiorari in the U.S. Supreme Court, as well as dozens of briefs in federal and state appellate courts. Ned's work has covered a wide range of subject areas, including patent, constitutional law, and complex commercial litigation. He has also counseled Fintech clients on novel issues confronting the industry.

Ned maintains an active pro bono practice focused on immigration and criminal justice matters, including a successful appeal in the Second Circuit that vacated an arbitrary change to the meaning of "moral turpitude" under the Immigration and Nationality Act.

Prior to joining Orrick, Ned served as a law clerk to Judge Robert Sack of the U.S. Court of Appeals for the Second Circuit and Judge Kimba Wood of the U.S. District Court for the Southern District of New York. During law school, he served as an Articles Editor for the Yale Law Journal.

Daniel A. Rubens Partner, Supreme Court & Appellate

New York

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D:+1 212 506 3679
E: [email protected]

Practice:

Supreme Court & Appellate

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Daniel A. Rubens Partner

New York

Danny's practice focuses on appellate litigation. He has led the drafting on dozens of appellate briefs, and regularly argues appeals in state and federal courts. Danny has extensive trial litigation experience as well, with an emphasis on dispositive motions, preserving appellate issues, and developing creative legal strategies.

Danny’s work has covered a wide range of subject areas, including securities, bankruptcy, intellectual property, arbitration, class actions, and criminal law. He has a deep understanding of appeals and critical motions in financial services litigation, and in recent years has played a key role in representing financial institutions in major RMBS cases brought by trustees, investors, and monoline insurers. His financial services clients include Credit Suisse, Goldman Sachs, Mr. Cooper, and Ocwen. He also represents leading technology companies in precedent-setting cases involving antitrust law and ballot initiatives, as well as other complex commercial litigation. In addition, Danny is an experienced bankruptcy litigator, having represented various debtors and creditors in fraudulent transfer cases and other contested insolvency-related matters involving U.S. and foreign law.

Danny is a member of the Second Circuit's pro bono panel and maintains an active pro bono practice focusing on criminal, immigration, racial justice, and LGBTQ+ rights matters in the Supreme Court and other appellate courts. He was recently recognized by the National LGBTQ+ Bar Association as a “Best LGBTQ+ Lawyer Under 40,” by the New York Law Journal as a Rising Star, and by LawDragon in its inaugural 500 X – The Next Generation listing. As part of his commitment to diversity, equity, and inclusion, Danny serves as a mentor for The Appellate Project, an organization focused on empowering law students of color to thrive in the appellate field. He has also served as an Orrick ambassador for the Move The Needle Fund, a collaborative effort designed by Diversity Lab to create a more diverse and inclusive legal profession.

Before joining Orrick, Danny served as a law clerk to U.S. Supreme Court Justice Ruth Bader Ginsburg, Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit, and Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York. Following his clerkships, he was selected to represent the American Inns of Court as a Temple Bar Scholar in London.

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