Allison Taylor, U.S. Court of Appeals for the Ninth Circuit - PowerPoint Presentation

Slide1

Allison Taylor, U.S. Court of Appeals for the Ninth CircuitJohn Blakeley, Office of Immigration LitigationIlyce Shugall, Community Legal Services in East Palo Alto Avantika Shastri, The Bar Association of San Francisco

Ninth Circuit Motion Practice

And Jurisdictional IssuesSlide2

Petitions for ReviewMust file within 30 days of Final Agency DecisionPFR and motion for stay can be e-filed

$505 filing fee or motion to proceed in forma

pauperis

Include agency decision, statement of jurisdiction, basis for claim, detention status

Venue based on location of agency decision

May include skeletal request for stay of removal (with request to supplement in 14 days)Slide3

Petition for Review Tips Slide4

Motion for Stay of RemovalSupplement in 14 days: General Order 6.4(c)Standard for Stay:

(

1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(

2) whether the applicant will be irreparably injured absent a stay;

(

3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(

4) where the public interest lies.Slide5

Motion for Stay of RemovalLeiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011)

Nken

v. Holder,

556 U.S.

418

(2009

)Slide6

Motion for Stay of RemovalResponse by OIL File a replySide note: Eligibility for bond hearings

e.g.

Casas-

Castrillon

v. DHS

, 535 F.3d 942 (9th Cir. 2008) Slide7

Motion for Stay of Removal:Practice Pointers Slide8

Motions practice: Tips and rulesMany different kinds of motionsFRAP 27Circuit rule 27-8. Required recitals in immigration cases

Every

motion in a petition for review of a decision of the BIA shall recite any previous application for the relief sought and inform the Court if petitioner is detained in the custody of the DHS or at liberty.

(New, 1/1/05; Rev. 12/1/09)Slide9

Government MotionsMotions for Summary DispositionMotions to Dismiss (usually for lack of jurisdiction)Petitioner’s failure to respond may be construed as a statement of non-oppositionSlide10

JurisdictionJurisdictional issues in immigration cases can be complex.Importance of establishing jurisdictionOrders to Show Cause

Zipper clause

Habeas jurisdiction

Departure

from the United States does

not

terminate jurisdiction. 8 U.S.C. § 1252(a).Slide11

Administrative exhaustionThe Ninth Circuit may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.

§

1252(d)(1).Slide12

Exceptions to exhaustion Constitutional issuesRetroactivity issuesUS nationality or citizenship claims

BIA decided the issue

Ultra vires statutory and regulatory issues

Futility

Issues occurred after BIA briefingSlide13

Final agency order jurisdictional prerequisiteAbdisalan v

. Holder

, 774 F.3d 517 (9th Cir. 2014) (en banc)

Ortiz-Alfaro

v

. Holder

, 694 F.3d 955 (9th Cir. 2012)Slide14

Jurisdiction over motions to reopen Reyes Mata v. Lynch

, 576 U.S. ___, 135 S. Ct. 2150 (2015

)

Kucana

v. Holder

, 130 S. Ct. 827 (2010

).

Dada v.

Mukasey

, 128

S.Ct

. 2307 (2008).Slide15

Statutory bars to review Certain applicationsCertain discretionary decisions

Discretionary determinations

C

ases of immigrants with certain criminal convictions Slide16

Statutory exception for legal and constitutional questionsJudicial review of legal and constitutional, as opposed to factual,

determinations

is permitted under

8

U.S.C. §

1252(a

)(2)(D

).

Includes

review of the “application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law.”

Ramadan v. Gonzales

, 479 F.3d 646

(9th

Cir. 2007).Slide17

Statutory Bars: Practice Pointers Slide18

…Questions? Slide19

Other Motions Motion to Use Pseudonym, Redact Record or Seal

Record

Doe v. Holder

, 736 F.3d 871, 872 n.1 (9

th

Cir. 2013)

Motion to

H

old Briefing in Abeyance / Motion to Stay Proceedings

Motion for Brief Extension

Motion for Appointment of Pro Bono Counsel

Motion to Transfer (usually on claims for US citizenship) Slide20

Other Motions ctd…Motion to Reconsider

Motion to Recall Mandate

Motion to Stay the Mandate

Aguilar–Escobar v. INS,

136 F.3d 1240, 1241 (9th Cir.1998)

Alvarez–Ruiz v. INS,

749 F.2d 1314, 1316 (9th Cir.1984)

Khourassany

v. INS,

208 F.3d 1096, 1101 (9th Cir.2000)

Roque–Carranza v. INS,

778 F.2d 1373, 1374 (9th Cir.1985

)Slide21

Statutory bars for judicial review of certain applications

Bar

to judicial review of enumerated applications for discretionary relief at

8

U.S.C. § 1252(a)(2)(B)(

i

), which provides that, notwithstanding other provisions of the law, courts have no jurisdiction to review "any judgment regarding the granting of relief under" several provisions of the Act, including cancellation of removal, adjustment of status, voluntary departure, and 212(h) and 212(

i

)

waivers.Slide22

Statutory bars of certain discretionary decisions

Bar to judicial review at

8

U.S.C. § 1252(a)(2)(B)(ii) of “any other decision or action of the Attorney General . . . the authority for which is specified under this title to be in the discretion of the Attorney General,”

except for asylum

.

In

Kucana

v. Holder

, 130

S.Ct

. 827, 837

(2010

) the Supreme Court held that the phrase “specified under this subchapter” means that “Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.” Slide23

Jurisdiction to review denials of motions to reopenReyes Mata v. Lynch, 576 U.S. ___, 135 S. Ct. 2150 (2015)The

Supreme Court

held that federal

courts have jurisdiction to

review BIA

denials of requests to equitably toll the deadline for filing motions to reopen removal orders. The decision strongly reaffirmed the importance of federal court review of motions to reopen.Slide24

Denials of timely motions to reopen reviewable

The

Supreme Court has also affirmed the jurisdiction of the federal courts to review agency discretionary denials of motions to reopen.

Kucana

v. Holder

, 130 S. Ct. 827 (2010).Slide25

Statutory bars for immigrants with certain criminal convictions

Congress

has restricted judicial review where

a noncitizen

is removable based on a conviction for certain crimes.

8 U.S.C. section

§

1252(a)(2)(c)

But court can review whether noncitizen is properly categorized within the statutory bar (i.e. whether the conviction is an aggravated felony).Slide26

Review of denials of motions to reopen

Motions to reconsider/reopen are “important safeguard[s]” that “ensure proper and lawful disposition” of immigration proceedings.

Dada v.

Mukasey

, 128

S.Ct

. 2307 (2008).

The Supreme Court has also affirmed the jurisdiction of the federal courts to review agency discretionary denials of motions to reopen.

Kucana

v. Holder

, 130 S. Ct. 827 (2010).Slide27

Discretionary decisionsThe Ninth Circuit lacks jurisdiction to review agency discretionary

determinations lacking governing legal standards under the rule of

Heckler v. Chaney

, 470 U.S.

821

(1985).Slide28

Zipper clause8 U.S.C. § 1252(b)(9) - “[j]udicial

review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section

.”Slide29

Habeas corpusLimited review in habeas corpus petitions of orders of removal. 8 U.S.C. § 1252(a)(5).

Habeas corpus petitions can still be used in the district court to challenge custody and execution of removal orders.Slide30

Mediation, Prosecutorial Discretion and RemandSlide31

PanelistsClaudia Bernard (Chief Circuit Mediator)John Blakeley (Department of Justice)Stacy Tolchin (Private Practitioner)Marc Van Der Hout (Private Practitioner)Slide32

A Few StatisticsClaudia BernardMediation in the Ninth CircuitSlide33

Immigration Cases Received by Mediation 2012 - 2015Slide34
Slide35
Slide36

Unopposed RemandsSlide37

How does the mediation program work, and how has it changed since the President’s Executive Order?Attorney RequestsPanel ReferralsStatisticsSlide38

How Can Mediation Help the Petitioner?DACADAPAAdmin ClosureTaken off the active docket, can be re-calendared by either party, no longer have deport/removal orderStays / Deferred Action (I-246 with ERO), deport/removal order remainsMotions to ReopenNow eligible to adjust

Post Conviction Relief

Other Relief

Clear legal error

Holding in abeyance for pending litigation

Attorneys’ fees and expensesSlide39

When might you NOT want to settle the case for prosecutorial discretion?What does your client wantPossibility of other relief in the futureLikelihood of success with Petition for ReviewDanger of dismissing your Petition for ReviewWork permitPossibility of EAJA feesSlide40

How to seek relief?Contact OIL attorney and try to work it outSeek mediation of the issuesGo directly to DHSSlide41

What is the role of OIL regarding these various forms of relief?Screen cases for possible PDReach out to Petitioner’s counselSeek mediationSlide42

RemandsUnder what circumstances does OIL ask for a remand?When should petitioner consider contacting OIL to discuss a remand?When does OIL review a matter for possible remand?What factors should petitioner consider in agreeing to a remand?Must attorneys’ fees be waived?Slide43

Questions?Slide44

DO’S AND DON’TS IN NINTH CIRCUIT PRACTICEFOR IMMIGRATION PRACTITIONERSIlyce Shugall, San Francisco Slide45

DO’S AND DON’TS IN NINTH CIRCUITDO: file your petition for review timelyDO: attach a copy of the BIA decision to the petition for reviewDO: read the Federal Rules of Appellate ProcedureDO: read the local rulesDO: read the general ordersDO: file a stay of removal

DO

: research

DO

: file your opening brief on time

DO

: file any extension request on time

DO

: file a reply brief (and file on time)

DO

: proof read

DO

: get opposing party’s position on

motions

DO

: prepare for oral argumentSlide46

DO’S AND DON’TS IN NINTH CIRCUITDO NOT: file late motions or briefsDO NOT: forget to cite check briefs and motionsDO NOT: copy and paste old briefs without updating names and case law DO NOT: expect Ninth Circuit staff attorneys to do your research for youDO NOT: submit on the briefs if the Court orders oral argumentDO NOT: be lazyDO NOT

: file petitions for review for clients without entering an

appearanceSlide47

Hot Topics in Criminal/ImmigrationKathy Brady Immigrant Legal Resource Center

Jennifer Keeney

Office of Immigration Litigation, DOJSlide48

Hot TopicsThe Categorical Approach: Almanza-Arenas, Mathis, and YoungCrimes of Violence: Johnson and DimayaSlide49

I. Categorical ApproachWhat is the categorical approach?In particular:When is a statute divisible? (Almanza-Arenas, Mathis)How much does that matter?

What happens if the record of conviction is inconclusive and the immigrant wants to apply for relief? (

Young

litigation)Slide50

Determining when a Conviction Triggers Immigration ConsequencesCategorical ApproachDivisibilityModified Categorical ApproachSlide51

Step 1: Categorical ApproachImportant TerminologyGeneric DefinitionStatute of ConvictionElementsSlide52

Step 1: Categorical ApproachCompare: Elements of criminal statute of conviction toElements of generic definitionLook to statute of conviction only – not underlying facts of crimePresume conviction

rested

on the least acts

criminalized under the statute

if there

is a “realistic probability, not a theoretical possibility” the state would apply its statute

those actsSlide53

Elements of statute of conviction: Elements of generic definition:Unlawful/ unprivileged Entry or remaining inAny occupied structure

W

ith intent to commit a felony

Unlawful/ unprivileged

E

ntry or remaining in

A

building or structure

W

ith intent to commit a crime

Step 1: Categorical Approach

As Applied to BurglarySlide54

Elements of statute of conviction:Elements of generic definition:Unlawful/unprivileged Entry or remaining inA

building

,

structure

,

or vehicle

W

ith intent to commit a felony

Unlawful/unprivileged

E

ntry or remaining in

A

building

or

structure

W

ith intent to commit a crime

Step

1: Categorical Approach

As Applied to BurglarySlide55

Step 2: DivisibilityDescamps v. United States, 133 S. Ct. 2276 (2013)Holding: modified categorical approach only appropriate when statute divisible Divisible: statute lists multiple, alternative elements creating several different crimes

Purpose

: identify from alternative elements the crime of conviction to compare to generic definitionSlide56

Step 3: Modified Categorical ApproachResort to criminal record when statute of conviction is divisiblePurpose to identify, from several alternatives, the crime of conviction to compare to generic definitionSlide57

Step 3: Modified Categorical ApproachPermissible criminal documents: Charging documentPlea agreementPlea colloquy between judge and defendantComparable judicial recordSlide58

Elements of statute of conviction:Elements of generic definition:Unlawful/unprivileged Entry or remaining in A building

,

structure

,

or vehicle

W

ith intent to commit a felony

Unlawful/unprivileged

E

ntry or remaining in

A

building

or

structure

W

ith intent to commit a crime

Step 3: Modified Categorical

Approach As Applied to BurglarySlide59

Elements of statute of conviction:Elements of generic definition:Unlawful/unprivileged Entry or remaining in An occupied structure

(defined to include a vehicle)

With intent to commit felony

Unlawful/unprivileged

E

ntry or remaining in

A

building or structure

W

ith intent to commit a crime

Step 3: Modified Categorical Approach As Applied to BurglarySlide60

Categorical Approach Road MapIs there a categorical match?If so, immigrant loses and inquiry stops.If not, go to Step 2.Is the statute divisible?If not, immigrant wins and inquiry stops.If so, go to Step 3.

Does the ROC establish that the offense of conviction comes within removal ground?

What if the ROC is inconclusive and the applicant wants to apply for relief? (

Young

issue)Slide61

Case ExampleWas Mr. Almanza-Arenas’ conviction for California Veh Code § 10851 a crime involving moral turpitude, so that he was barred from applying for non-LPR cancellation?Almanza-Arenas v. Lynch, 809 F.3d 515 (9th Cir. 2015) (en banc) Slide62

Step 1. Categorical Match?Identify the federal “generic” definition of the criminal law term in the removal ground, e.g., of “burglary” or “crime involving moral turpitude.”Identify the minimum conduct that violates the criminal statute at issue, also called the “least criminalized act.” (This conduct must have a reasonable probability of being prosecuted.)

Compare them

.Slide63

Step 1: Is § 10851 a Categorical CIMT?Generic definition: The definition of a CIMT includes theft (a taking without consent), but only if the intent is to deprive the owner permanently.Minimum conduct: Cal Vehicle Code § 10851 prohibits taking a vehicle with intent to deprive “permanently or temporarily.” People have been prosecuted for taking a vehicle with intent to deprive temporarily.Compare:

Can one be convicted of VC § 10851 but not of the generic offense? If so, no categorical match.Slide64

No Categorical Match --

Criminal statute is “overbroad”

© 2011 American Immigration Lawyers Association

Go on to Step 2: Is § 10851 Divisible?

§ 10851 TEMPORARY INTENT

CIMT

REQUIRES

PERMANENT INTENTSlide65

Step 2: Is the Statute Divisible?Statute must set out different elements phrased in the alternative (using “or”).

E.g., the term “entry” is not divisible.

Descamps

At least one but not all of the alternative offenses must trigger the removal ground.

*

*

A jury must decide unanimously between the alternative offenses in order to find guilt, in every case.

**

This is the definition of

an “element.”

Compare

Almanza-Arenas

with

Mathis v. U.S.

(11

th

Cir 2014), cert granted 2016Slide66

Is § 10851 Divisible? Yes, 10851 sets out different statutory alternatives: “permanently or temporarily”. Yes, p

ermanent intent is a CIMT, while temporary intent is not.

**

Maybe – it

d

epends on the test used.

If jury unanimity rule applies (

Almanza-Arenas

), it is not divisible.

Is that rule doesn’t apply (

Mathis

11th Cir), it is.Slide67

How much does divisibility matter?A lot. Few criminal statutes (“a narrow range of cases”) are divisible under the “elements” test. Courts do not want to require jury unanimity on statutory alternatives in criminal cases.See, e.g., Sullivan rule cited in

Rendon

See Law of Inverse Unfortunate Outcomes of Immigration and Crimes

TMSlide68

Divisibility Debate: Descamps TextDivisible statute contains “multiple, alternative elements.”“Elements” = facts upon which a jury must unanimously agree in every case. Otherwise, statutory alternatives are just different “means” of committing a single crime.

See

Richardson,

relied upon in

Descamps

Courts can look to the ROC only to determine the “elements” of a conviction – not the “means” by which it was committed. Slide69

Descamps Fn 2Fn. 2: “And if the dissent's real point is that distinguishing between ‘alternative elements’ and ‘alternative means’ is difficult, we can see no real-world reason to worry.

Whatever a statute lists (whether elements or means), the documents we approved in

Taylor

and

Shepard

—

i.e.,

indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime's elements

. So a court need not parse state law in the way the dissent suggests:

When

a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense

.Slide70

What to Do with Footnote 2? Almanza-Arenas majority and some Courts of Appeals:Shepard documents are a “guide” if there is “difficulty in distinguishing between the elements and means”Other Courts of Appeals: No distinction between means and elements. Any statute phrased in the disjunctive is divisible.

Supreme Court should resolve this in

Mathis.

Until then,

Almanza-Arenas

controls in the Ninth Circuit.Slide71

Almanza-Arenas Majority: Divisibility Analysis a. Look at text of the statute to ID elements.“Any

person who drives or takes a vehicle not his or her own,

without the consent of the owner thereof,

and

with intent either to permanently or temporarily deprive

the owner thereof of his or her title to or possession of the

vehicle”Slide72

Determining Divisibility, Cont’dConfirm elements by examining Shepard docs, per Descamps fn 2 Here

prosecutor charged

“intent to

either permanently or temporarily to

deprive”

Because

prosecutors can’t charge two offenses in same count, it must be means, not elements

But prosecutors don’t always charge correctly, so analysis “may not end” with

Shepard

documents (

Almanza-Arenas

, n. 13)Slide73

Determining Divisibility, cont’dVerify elements by looking to state case law and jury instructions In Rendon, where statute didn’t provide a “clear answer,” court looked to state law. Because jury instructions resolved

that

the temporary/permanent

distinction is a “means,” majority found it need not look to state case lawSlide74

Overbroad, Indivisible Statute = Immigrant WinsNo conviction under § 10851 ever is a CIMT for any purpose, as a matter of law.This includes eligibility for relief. If a statute is indivisible the ROC is irrelevant, so no burden of proof switching as in Young. But all facts

are considered in discretionary

decisions.

See also Moncrieffe v. Holder:

B

ecause minimum prosecuted conduct

i

s not an aggravated felony, Mr. Moncrieffe may apply for reliefSlide75

If Statute is Divisible, Go to Step 3: Modified Categorical ApproachIf a statute is divisible, the court may consult certain facts from the reviewable record of conviction (ROC) to determine of which of the listed offenses the person was

convicted

.

Then the court will apply the categorical analysis to that offense.

Remember: If the statute is

not divisible

the ROC is irrelevant and none of this comes into play.Slide76

Young Issue: Divisible Statutes andEligibility for ReliefICE must prove deportability. For conviction of a divisible statute, an inconclusive ROC means the person is not deportable.The immigrant must prove eligibility for relief, for example on factual issues. But does this extend to legal questions such as the character of a prior conviction under the categorical approach?Slide77

Young Ninth Circuit HoldingApplicant for relief must show under the modified categorical approach that the conviction was not for an offense that bars relief. Thus the applicant (a) must produce a record of conviction that (b) conclusively shows that the conviction does not bar relief. No record, or an inconclusive record, means applicant loses.This issue is being heavily litigated. Circuit Courts of Appeals are split. Slide78

Argument that Moncrieffe overturned YoungWhile Moncrieffe concerned an indivisible statute, its reasoning overturns cases like Young. Moncrieffe:

Affirms

that

if the ROC is inconclusive, then as a matter of law the

conviction

does not “

necessarily”

match

the generic

offense, as the categorical approach requires.

Rejects “an

unfair result where two noncitizens, each ‘convicted of’ the same offense, might obtain different

…

determinations depending on what evidence remains available

. . .

” Slide79

Young Issue ResourcesSee Moncrieffe, 133 S. Ct. at 1684-85; see also Almanza-Arenas, 809 F.3d 515, 534-35 (Watford, J., concurring) and panel opinion.

Several cases involving the argument that

Moncrieffe

overturned

Young

await oral argument at the Ninth Circuit. Amicus brief will be posted at

www.ilrc.org/crimes

.

If you have such a Ninth Circuit case, contact

awatchtenheim@immigrantdefenseproject.orgSlide80

II. Crimes of Violence (COV)18 USC § 16 defines COV for immigration (and some federal criminal) purposes.Conviction of a COV with at least one year sentence imposed is an “aggravated felony.”8 USC 1101(a)(43)(F), INA 101Conviction of a COV committed against victim with protected domestic relationship is a deportable “crime of domestic violence.”

8 USC 1227(a)(2)(E)(

i

), INA 237Slide81

18 USC § 16The term "crime of violence" means—an offense that has as an element the use, attempted use, or threatened use of physical

force

against the person or property of another, or

any

other offense that is a

felony

and that

, by its nature, involves a substantial risk

that

physical force

against the person or property of another may be used in the course of committing the offense Slide82

Dimaya v. Lynch Applied Supreme Court Johnson decision (finding ACCA residual clause void for vagueness) to 18 U.S.C. § 16(b)Now, to be a COV the offense must have an element of force under 18 USC 16(a) definitionPetition for rehearing was deniedSlide83

CA Felonies Held COVs Only under § 16(b)Residential burglary, PC § 459, 460(a)Robbery § 211 (but watch for theft)Kidnapping § 207

False Imprisonment (various)

Lewd Conduct with 14-15 § 288(c)

Sexual Battery

§ 243.4

See also discussion in ILRC & NIPNLG Advisories,

www.ilrc.org

/resources/some-felonies-should-no-longer-be-crimes-of-violence-for-immigration-purposes-under-johnsoSlide84

Will § 16(b) Go To Supreme Court?Split between Seventh and Ninth Circuits, and Sixth CircuitCompare U.S. v. Vivas-Ceja, 808 F.3d 719, 722-23 (7th Cir. 2015), Dimaya v. Lynch,

with

U.S. v. Taylor

09-

5517 (6th Cir. 2/11/16) (re identical 18 USC 924(c)(3)(B)).

But in any case, the

“ordinary case analysis” is gone.Slide85

See alsoVoisine v. United States, cert. granted 136 S.Ct. 386 (2015)Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016)Slide86

Categorical ApproachTaylor v. United States, 495 U.S. 575, 602 (1990) Gonzalez v. Duenas-Alvarez, 549 U.S. 183 (2007)

Moncrieffe

v. Holder

, 133 S. Ct.

1678

(

2013

)

Descamps v. United States,

133 S.Ct. 2276 (2013

), citing

Richardson

v. United States,

526 U.S.

813 (1999)

United States v.

Grisel

, 488 F.3d 844 (9th Cir. 2007

)

Young v. Holder

, 697 F.3d 976 (9th Cir. 2012) (

en banc

)

Rendon v. Holder,

764 F.3d 1077 (9

th

Cir. 2014)

Almanza-Arenas v. Lynch

, 809 F.3d 515 (9th Cir. 2015) (en banc) (as amended 2/29/16)

Case CitationsSlide87

Categorical Approach, cont’dSupreme Court Pending CasesUnited States v. Mathis, 136 S.Ct. 894 (2016), appeal of 786 F.3d 1068 (8th Cir. 2015) Torres v. Lynch

, 135 S.Ct. 2918 (2015),

appeal of

764 F.3d 152 (2nd Cir. 2014)

Crimes of Violence

Johnson v. United States

, 135 S.Ct. 2551 (2015)

Dimaya v. Lynch

, 803 F.3d 1110 (9

th

Cir. 2015)

Supreme Court Pending Case

United

States v.

Voisine

,

136 S.Ct. 872 (2016),

appeal of 778

F.3d 176

(1st

Cir. 2015)Slide88

Preparing Your Brief on aPetition For Review of Removal OrderHolly Cooper, U.C. Davis Law SchoolZachary Nightingale, Van Der Hout, Brigagliano & Nightingale, LLPBased on powerpoint by Matt Adams, Northwest Immigrant Rights ProjectSlide89

Do a Fresh Intake Immigration law in constant evolutionExecutive programs (DACA; P.D.)DAPA/DACA litigationClient’s facts may changeU visa and VAWA eligibility can changeSlide90

Do a Fresh Intake Lawyers make legal errorsOverlook citizenship claimsChanges in the law applicable to arguments and issues already raised belowE.g.) Dimaya v. Lynch- finding a portion of the statutory definition of crime of violence void for vagueness.Slide91

MediationYou should consider mediation if your client qualifies for new executive action, new benefits due to a change in his/her facts, or if the law changes.Don’t waste the court’s time if you and the government can come to an agreement.If Motion to Reopen filed with BIA, request stay of briefing before the CourtSlide92

Know the Rules; Apply them CarefullyRules:Follow the FRAP and the 9th Cir rulesRule 28: Briefs – include all required sections and observe all requirementsApplication of the rules to a brief:Think about the perspective of the readerMake sure your client’s story comes throughMake sure your client’s legal theory is clearly presentedTable of Contents

Introduction

Summary of ArgumentSlide93

Identify the Decision on AppealImmigration judge’s decision On review where BIA affirms the IJ’s decision Board of Immigration Appeals’ decisionOn review where it provides new or additional reasoning.Both IJ and BIA decisions may be on review (ie. if BIA affirms IJ on some issues, but provides new, additional reasoning on other claims).Slide94

Checklist for Issue SpottingStandard of proof—did IJ and BIA use the correct standard of proof or any standard of proof at all?Legal standard—did IJ and BIA use the correct legal standard applicable to your client’s case?Evidence—did the IJ and BIA weigh all relevant evidence?Proper waivers—did the IJ obtain the proper waivers from pro se respondent? (ie. waiver of right to counsel, waiver of right to present evidence).Slide95

SEC v. Chenery, 332 U.S. 194 (1947)“a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency,”332 U.S. at 196.Slide96

Chenery Doctrine cont.First determine the basis provided by the agencyDid the BIA adopt the IJ’s rationale or replace it?If unclear , then remand may be appropriate:“ It will not do for a court to be compelled to guess at the theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.”

Chenery

, 322 U.S. at 196.Slide97

Chenery Doctrine cont.Reject any attempt to provide alternative or missing rationale“Justice Department’s lawyers are not allowed to supply the agency’s missing rationale in its brief—nor are we.”Gattem v. Gonzales, 412 F.3d 758, 768 (7

th

Cir. 2005) (Posner dissent).Slide98

Chevron DeferenceStep one: Court must analyze the plain language of statute to determine if intent is clear. If intent is clear there is no room to defer to agency interpretation.Step two: If intent is not clear, Court will defer to reasonable agency interpretation of a statutory scheme it is entrusted to administer.Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc

., 467 U.S. 837 (1984)Slide99

Chevron DeferenceStep One: Is the statute clear?Start with the plain language, but don’t be limited by itCourt will apply the “traditional tools of statutory construction” to determine statutory meaning and whether it is ambiguousWhether the statute is ambiguous is a legal issue determined de novo by the Court of AppealsSlide100

Chevron DeferenceStep two—when to defer to the agency?Is the statute at issue one over which the agency is responsible to administer?E.g., is the agency interpreting the INA, or is it interpreting a criminal statute, even one referenced in the INA?Slide101

Chevron DeferenceStep two (cont.)—when to defer to the agency?2. Did agency rely on precedent decision?“interpretations promulgated in a non-precedential manner are ‘beyond the Chevron pale.’ ”Estrada-Rodriguez v.

Mukasey

, 512 F.3d 517, 520 (9th Cir. 2007).

Is the interpretation reasonable?

Is it clear, does it contradict prior interpretations?Slide102

RetroactivityIdentify the correct immigration statute, regulation, and agency decisions that will govern your case.Generally, the law in effect at the time of your client’s conviction will govern.If US citizenship claim, laws in effect at the time of birth or when the last condition precedent was fulfilled. Slide103

Case DigestVartelas v. Holder, 132 S.Ct. 1479 (2012)INS v. St. Cyr, 533 U.S. 289 (2001)Miguel Miguel v. Gonzales, 500 F.3d 941 (9th Cir. 2007)Toia

v. Fasano

, 334 F.3d 917 (9th Cir. 2003)

Nunez-Reyes v. Holder

, 646 F.3d 684 (9th Cir. 2011)(

en

banc)

Montgomery Ward v. FTC

, 691 F.2d 1322 (9th Cir. 1982)

Matter of

Abdelghany

, 26 I&N Dec. 254 (BIA 2014)Slide104

WaiverLegal issues must be raised in your opening brief or you risk waiving them.If government fails to raise an issue in its response brief, argue the issue is waived in your reply.If the issue was not raised before the agency, consider an exception to waiver (issue of law, etc.).Waiver is separate from exhaustion—do not confuse the two. Exhaustion is jurisdictional, but waiver is not jurisdictional and has exceptions.Slide105

Best Practices for Oral ArgumentSlide106

Tip #1: Know Your (Time) Limits Plan to make 2-4 main points.Be disciplined about time. Tip #2: Use Short Declarative Answers Don’t explain your way into an answer.Slide107

Example #1:Judge: So why isn’t this a CIMT?Lawyer: Well, this Court said in Nunez that CIMTs generally have to fall in one of three categories. One category is an intent to harm, but this statute only requires a reckless mens

rea

. Another category is causing actual harm, but

this statute doesn’t require that the victim suffer any injury or

loss. 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 protected class.Slide108

Example #2 (BETTER):Judge: So why isn’t this a CIMT?Lawyer: Because it doesn’t involve an intent to harm, actual harm, or a protected class. This Court said in Nunez

that CIMTs generally have to fall in one of three categories. One category is an intent to harm, but this statute only requires a reckless

mens

rea

. Another category is causing actual harm, but

this statute doesn’t require that the victim suffer any injury or

loss. 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.Slide109

Tip #3: Know How to Pivot “Even if you disagree with us on X, we still win under Y.” Tip #4: Be ReasonableWhat can you concede that won’t hurt you?

Acknowledge

the judges

’

concerns. Slide110

Tip #5: Don’t Avoid Tough IssuesAddress the judges’ concerns – don’t simply repeat your favorite points.Be prepared to address your most vulnerable issues.Slide111

Tip #6: Prepare for argumentTry to do two moots if possible. Have two versions of your argument – a short version for when the judges have a lot of questions, and a longer one for when they give you more latitude. In preparing, reread your briefs and address any rough or inarticulate arguments.Just because you have time doesn’t mean you have to use it.Slide112

Tip #7: Listen!Don’t just repeat the contents of your brief.Answer the questions.Do not interrupt.Start with yes or no, if it’s a yes or no question.Look the panel in the eye. Do not have your head down reading. You won’t see when they want to ask something or pick up on their cues.Slide113

Tip #8: Be Specific on What you WantBe prepared to tell the Court what is 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 as a CIMT or has the BIA already had their opportunity and you now ask the Court to resolve the question? Slide114

Last ThoughtsPrepare for oral argument. Think about what questions are still unanswered.Record yourself practicing answers and listen to them.Watch your oral arguments on line.Don’t be afraid to say you don’t know. Better to ask for permission to address something in a follow-up letter than to make a mistake. Slide115

John BlakeleyStacy TolchinJonathan WestenNinth Circuit: After the DecisionSlide116

After the judgment: timelinePetition for rehearing : 45 days after circuit decisionSame timeline for dispositive motionsMandate issues 7 days after expiration of time for rehearing or denial of petition for rehearing (52 days from circuit decision)Certiorari: 90 days after circuit decisionAttorneys’ fees: 120 days after circuit decision Slide117

Petitions for RehearingFRAP 40 (panel rehearing)FRAP 40(a)(2)The petition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Oral argument is not permitted.Slide118

Petitions for Rehearing FRAP 35 (en banc)en banc consideration is necessary to secure or maintain uniformity of the court's decisions; orthe proceeding involves a question of exceptional importance.Slide119

Motions to ReconsiderCircuit Rule 27-10(a)(1)Filing for Reconsideration: Orders that terminate the caseCircuit Rule 27-10(a)(3)Required showing: A party seeking relief under this rule shall state with particularity the points of law or fact which, in the opinion of the movant, the Court has overlooked or misunderstood. Changes in legal or factual circumstances which may entitle the movant to relief also shall be stated with particularity.Slide120

Motions to Stay the Mandate FRAP 41(b) When Issued. The court's mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time.Slide121

Motions to Stay the Mandate FRAP 41(d)(1): (1) On Petition for Rehearing or Motion. The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.Slide122

Motions to Stay the MandateBell v. Thompson, 545 U.S. 794, 806 (2005) (courts have equitable authority to stay mandate even when no pending petition for certiorari)Adamson v. Lewis, 955 F.2d 614, 620-21 (9th Cir. 1992), (stay of the mandate under Fed.R.App.P. 41(b), “would have to be justified upon the same grounds as would justify a recall of mandate.”) Slide123

Motions to Stay the MandateMyers v. Holder, 661 F.3d 1178, (Mem)-1179 (9th Cir. 2011)Aguilar–Escobar v. INS, 136 F.3d 1240, 1241 (9th Cir.1998)Alvarez–Ruiz v. INS, 749 F.2d 1314, 1316 (9th

Cir.1984

)

Khourassany

v. INS,

208

F.3d

1096, 1101 (9th

Cir.2000

)

Roque–Carranza

v. INS,

778

F.2d

1373, 1374 (9th

Cir.1985

)Slide124

Motions for Attorneys’ FeesEqual Access to Justice Act. 28 U.S.C. § 2412(d)File within 30 days of FINAL decision, or 120 days of decision90 days for government to file for certiorariIncludes motions to remand. Li v. Keisler, 505 F.3d 913, 915 (9th Cir. 2007)Slide125

Motions for Attorneys’ FeesPrevailing PartyRemand DismissalFee agreementsGovernment’s Position was not substantially justified before the agency or in litigationSpecial circumstances do not make an award unjustSlide126

Motion for Attorneys’ Fees Statutory rate, $125/hr adjusted for inflationParalegals and Law ClerksEnhanced rates: Nadarajah v. Holder, 569 F.3d 906, 912 (9th Cir. 2009)Specialized skillsNecessary for the litigationNot available at the statutory rateSlide127

Returning Your Client After Removal The Solicitor General assured the Supreme Court in Nken v. Holder, 129 S. Ct. 1749 (April 22, 2009) that immigrant petitioners “who prevail can be afforded effective relief by facilitation of their return along with restoration of the immigration status they had upon removal.” But not until February 24, 2012 did DHS issue a “policy” regarding returns. ICE Policy Directive 11061.1. Slide128

Returning Your Client After RemovalReturn directive:https://www.ice.gov/ero/faq-return-certain-lawfully-removed-aliens“What happens if I win my case and the court grants my petition for review after I have been removed?Absent extraordinary circumstances, ICE will facilitate your return to the United States if your case is remanded for further proceedings before the Board of Immigration Appeals or the Immigration Court and your presence is necessary for continued adjudication of your case. This may be because the court specifically ordered your presence, or because the nature of the court's decision requires you to return for further testimony. ICE may explore other options in lieu of facilitating your return, such as arranging for video teleconferencing or telephonic testimony, if

appropriate

.

If, after your case is remanded, the Board or Immigration Court enters a final and unreviewable decision that permits you to be physically present in the United States, ICE will facilitate your return and you will be able to obtain the status that the Board or Immigration Court has granted you

.”