Ninth Circuit Immigration Law Training
This content provides valuable information on Ninth Circuit motion practice, petitions for review, petition review tips, motion for stay of removal, and practice pointers. It covers key aspects such as filing deadlines, jurisdictional issues, and stay standards, offering insights into handling immigration law cases effectively.
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Ninth Circuit Immigration Law Training Phoenix, Arizona SANDRA DAY O CONNOR COURTHOUSE October 5, 2016
Ninth Circuit Motion Practice Ninth Circuit Motion Practice And Jurisdictional Issues And Jurisdictional Issues Allison Taylor, U.S. Court of Appeals for the Ninth Circuit John Blakeley, Office of Immigration Litigation Holly Cooper, UC Davis School of Law
Petitions for Review Must file within 30 days of Final Agency Decision PFR and motion for stay can be e- filed $500 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)
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 PFR and motion for stay can be efiled (under Utilities bar) Once docketed, contact ICE so it does not remove your client
Motion for Stay of Removal Supplement 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.
Motion for Stay of Removal Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011) Nken v. Holder, 556 U.S. 418 (2009)
Motion for Stay of Removal Response by OIL File a reply Side note: Eligibility for bond hearings e.g. Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008)
Practice Pointers Supplement with exhibits because the record is often filed after the stay is 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
Motions practice: Tips and rules Many different kinds of motions FRAP 27 Circuit 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)
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)
Government Motions Motions for Summary Disposition Motions to Dismiss (usually for lack of jurisdiction) Petitioner s failure to respond may be construed as non-opposition
Jurisdiction Jurisdictional issues in immigration cases can be complex. Importance of establishing jurisdiction Orders to Show Cause Zipper clause Habeas jurisdiction 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
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, 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?
Departure from USA not a bar Departure from the United States does not terminate jurisdiction. 8 U.S.C. 1252(a).
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. Appeal from habeas petition in the district court follow different procedures than a petition for review.
Mediation, Prosecutorial Discretion and Remand Panelists Chris Goelz (Circuit Mediator) John Blakeley (Department of Justice) Stacy Tolchin (Private Practitioner, Los Angeles)
Mediation in the Ninth Circuit A FEW STATISTICS CHRIS GOELZ
Immigration Cases Received by Mediation 2012 - 2015 879 757 Axis Title 487 205 2012 2013 2014 2015
Cases Received 1000 900 800 700 600 500 400 300 200 100 0 2012 2013 Attorney Requests Opposed Remands Other Court Referrals Panel Referrals 2014 2015
Attorney Requests 2015 300 244 250 211 200 150 100 50 5 0 Made Deferred Came Back
Unopposed Remands 500 454 450 400 350 300 250 200 183 200 121 150 100 50 0 2012 2013 2014 2015
How does the mediation program work, and how has it changed since the President s Executive Order? Attorney Requests Panel Referrals Statistics
How Can Mediation Help the Petitioner? DACA DAPA Admin Closure Taken off the active docket, can be re-calendared by either party, no longer have deport/removal order Stays / Deferred Action (I-246 with ERO), deport/removal order remains Motions to Reopen Now eligible to adjust Post Conviction Relief Other Relief Clear legal error Holding in abeyance for pending litigation Attorneys fees and expenses
When might you NOT want to settle the case for prosecutorial discretion? What does your client want Possibility of other relief in the future Likelihood of success with Petition for Review Danger of dismissing your Petition for Review Work permit Possibility of EAJA fees
How to seek mediation Contact OIL attorney and try to work it out Seek mediation of the issues Go directly to DHS
What is the role of OIL regarding these various forms of relief? Screen cases for possible PD Reach out to Petitioner s counsel Seek mediation
Remands Under 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?
Best Practices for Attorneys STACY TOLCHIN
Best Practices for Attorneys DO S AND DON TS IN NINTH CIRCUIT PRACTICE FOR IMMIGRATION PRACTITIONERS DO: file your petition for review timely DO: attach a copy of the BIA decision to the petition for review DO: read the Federal Rules of Appellate Procedure DO: read the local rules DO: read the general orders DO: 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 argument
Best Practices for Attorneys DO NOT: file late motions or briefs DO NOT: forget to cite check briefs and motions DO NOT: copy and paste old briefs without updating names and case law DO NOT: expect Ninth Circuit staff attorneys to do your research for you DO NOT: submit on the briefs if the Court orders oral argument DO NOT: be lazy DO NOT: file petitions for review for clients without entering an appearance
Hot Topics in Criminal/Immigration Kara Hartzler United States Office of Federal Defender, San Diego Jennifer Keeney Office of Immigration Litigation, DOJ
Hot Topics The Categorical Approach: Rendon, Almanza-Arenas, Mathis, and Young I. II. Crimes of Violence: Johnson and Dimaya
I. Categorical Approach What is the categorical approach? In particular: When is a statute divisible? (Rendon, Almanza-Arenas, Mathis) What happens if the record of conviction is inconclusive and the immigrant wants to apply for relief? (Young litigation)
Determining when a Conviction Triggers Immigration Consequences 1. CATEGORICAL APPROACH 2. DIVISIBILITY 3. MODIFIED CATEGORICAL APPROACH
Categorical Approach Important Terminology GENERIC DEFINITION STATUTE OF CONVICTION ELEMENTS
Categorical Approach Compare: Elements of criminal statute of conviction to Elements of generic definition Look to statute of conviction only not underlying facts of crime Presume 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 acts
Categorical Approach As Applied to Burglary Elements of statute of conviction: Elements of generic definition: Unlawful/ unprivileged Entry or remaining in Any occupied structure With intent to commit a felony Unlawful/ unprivileged Entry or remaining in A building or structure With intent to commit a crime
Categorical Approach As Applied to Burglary Elements of statute of conviction: Elements of generic definition: Unlawful/unprivileged Entry or remaining in A building, structure, or vehicle With intent to commit a felony Unlawful/unprivileged Entry or remaining in A building or structure With intent to commit a crime
