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 REQUIRED RECITALS IN CRIMINAL AND IMMIGRATION CASES Criminal Cases Every motion in a criminal appeal shall recite any previous application for the relief sought and the bail status of the defendant 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 (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 (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.