Ninth Circuit Motion Practice and Jurisdictional Issues Summary
Ninth Circuit Motion Practice
And 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 Law
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
removal
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 nationals
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.
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 granted
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 Project
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
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.
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)
Other Motions
Motion to Hold 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)
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.
Mediation Program
Filing requests for mediation
Court ordered Mediation
Prosecutorial Discretion
Attorneys Fees
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)
Motions for Attorneys’ Fees
Prevailing 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 unjust
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 rate
JURISDICTION
Jurisdictional issues in immigration cases
can be complex.
Statutory bars
Exhaustion
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.
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.
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.”
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.
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).
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).
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).
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).
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?
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).
Departure from USA not a bar
Departure from the United States does
not terminate jurisdiction. 8 U.S.C. §
1252(a).
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).
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 briefing
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.”
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.
This text provides valuable information on Ninth Circuit motion practice and jurisdictional issues, focusing on topics such as petitions for review, tips for petitioning for review, motion for stay of removal, and related legal standards and procedures. It emphasizes the importance of timely filing, preparing necessary documents in advance, and meeting specific criteria for motions and appeals in immigration cases before the Ninth Circuit Court of Appeals.
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Presentation Transcript
Ninth Circuit Motion Practice And 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 Law
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 removal
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 nationals
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.
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 granted
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 Project
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
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.
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)
Other Motions Motion to Hold 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)
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.
Mediation Program Filing requests for mediation Court ordered Mediation Prosecutorial Discretion Attorneys Fees
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)
Motions for Attorneys Fees Prevailing 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 unjust
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 rate
JURISDICTION Jurisdictional issues in immigration cases can be complex. Statutory bars Exhaustion
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.
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.
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.
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.
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).
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).
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).
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).
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?
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).
Departure from USA not a bar Departure from the United States does not terminate jurisdiction. 8 U.S.C. 1252(a).
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).
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 briefing
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.
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.
