And Jurisdictional Issues Susan Gelmis US Court of Appeals for the Ninth Circuit John Blakeley Office of Immigration Litigation Andrew Knapp Southwestern University School of Law Holly Cooper UC Davis School of Law ID: 486504
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Slide1
Ninth Circuit Motion PracticeAnd Jurisdictional Issues
Susan
Gelmis
, U.S. Court of Appeals for the Ninth Circuit
John Blakeley, Office of Immigration Litigation
Andrew Knapp,
Southwestern University School of Law
Holly Cooper, UC Davis School of LawSlide2
Petitions for Review
Must file in 30 days of Final Agency Decision
BIA Decisions, DHS decisions
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 remova
lSlide3
Petition for Review Tips
Until you file the PFR and motion for a stay, ICE can physically remove your client
Do not wait 30 days for Mexican nationals
$505 filing fee or motion to proceed in forma
pauperis
PFR and motion for stay can be
efiled
Once docketed, contact ICE so it does not remove your client
Prepare PFR and stay in advance and call BIA daily, especially Mexican nationalsSlide4
Motion for Stay of Removal
Supplement in 14 days: General Order 6.4(c)
Standard:
(
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 Removal
Leiva
-Perez
v. Holder
, 640 F.3d 962, 964 (9th Cir. 2011)
Nken
v. Holder,
556 U.S. 418, 129 S.Ct. 1749,
173
L.Ed.2d 550 (2009
)
must demonstrate that irreparable harm is probable if the stay is not grantedSlide6
Motion for Stay of Removal
Practice pointers:
Supplement with exhibits because the record is not yet filed
Contact OIL to see if it can file the record early to avoid recreating the record through exhibits
Raise ICE policy on return—contact National Immigration ProjectSlide7
Motion for Stay of Removal
Non-oppositions
Oppositions
File a reply
Decisions
Jurisdiction remains even if the person is deported
Side note: Eligibility for bond hearings
Briefing schedule is issued if no other merits motions pending Slide8
Government Motions
Motions for Summary Disposition
Motions to Dismiss (usually for lack of jurisdiction)
You must respond in 10 days, or your petition can be dismissed for failure to prosecute.
Watch out for Orders to Show Cause issued by the Ninth Circuit.Slide9
Special Motion rules for immigration cases
Circuit Rule 27-8. Required Recitals in Criminal and Immigration Cases
27-8.1. Criminal Cases
Every motion in a criminal appeal shall recite any previous application for the relief sought and the bail status of the defendant.
27-8.2. Immigration Petitions
Every motion in a petition for review of a decision of the Board of Immigration Appeals shall recite any previous application for the relief sought and inform the Court if petitioner is detained in the custody of the Department of Homeland Security or at liberty.
(New, 1/1/05; Rev. 12/1/09)Slide10
Other Motions
Motion to
H
old Briefing in Abeyance
Motion for Brief Extension
Motion for Appointment of Pro Bono Counsel
Motion to Transfer (usually on claims for US citizenship)
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
)Slide11
Petitions for Rehearing
File in 45 days
Now applies to dismissals based on lack of jurisdiction/summary disposition
Extensions of time
Panel rehearing
En Banc rehearing –FRAP 35
(
1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.Slide12
Mediation Program
Filing requests for mediation
Court ordered Mediation
Prosecutorial Discretion
Attorneys Fees Slide13
Motions for Attorneys’ Fees
Equal Access to Justice Act.
28
U.S.C
. § 2412(d
)
File within 30 days of FINAL decision, or 120 days of decision
90 days for government to file for certiorari
Includes motions
to remand.
Li v.
Keisler
, 505 F.3d 913, 915 (9th Cir. 2007)Slide14
Motions for Attorneys’ FeesPrevailing Party
Remand
Dismissal
Fee agreements
Government’s Position was not substantially justified before the agency or in litigation
Special circumstances do not make an award unjustSlide15
Motion for Attorneys’ Fees
Statutory rate
Paralegals and Law Clerks
Enhanced rates:
Nadarajah
v. Holder
, 569 F.3d 906, 912 (9th Cir. 2009
)
Specialized skills
Necessary for the litigation
Not available at the statutory rateSlide16
JURISDICTION
Jurisdictional issues in immigration cases can be complex.
Statutory bars
ExhaustionSlide17
Final agency order jurisdictional prerequisite
Abdisalan
v. Holder
, 774 F.3d 517
(9th Cir. 2014) (when the
Board of Immigration Appeals issues a decision
that denies
some claims, but remands any other claims for
relief to
an Immigration Judge for further proceedings, the
Board decision
is not a final order of removal with regard to any
of the
claims, and it does not trigger the thirty-day window
in which
to file a petition for review.Slide18
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.Slide19
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.” Slide20
Jurisdiction to review denials of motions to reopen
Reyes 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.Slide21
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).Slide22
Discretionary decisions
The 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).Slide23
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 (
ie
. whether the conviction is an aggravated felony).Slide24
Statutory exception for legal and constitutional questions
Judicial
review of legal and constitutional, as opposed to factual,
determinations
is permitted under
8
U.S.C. §
1252(a
)(2)(D
).
This
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).Slide25
Practice tips
Check the record for issues of law:
Check to see if IJ/BIA used the correct legal standard
Check for eligibility and deportability issues
Check for constitutional issues:
Improper waiver of rights?
Ineffective assistance of counsel?
Failure to consider all relevant evidence?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
Departure from USA not a bar
Departure
from the United States does not terminate jurisdiction.
8 U.S.C.
§
1252(a).Slide28
Administrative exhaustion
The 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).Slide29
Exceptions to exhaustion
Constitutional issues
Retroactivity issues
US nationality or citizenship claims
BIA decided the issue
Ultra vires statutory and regulatory issues
Futility
Issues occurred after BIA briefingSlide30
Zipper clause
8 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.”Slide31
Habeas corpus
Limited 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.