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09f949406b90716e49937d67fd8ab8b9-Ninth Circuit Motion Practice - United States Court of ...

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Ninth Circuit:After the Decision
John BlakeleySusanGelmisAndrewKnappStacy Tolchin
After the judgment: timeline
Petition 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
Petitions for Rehearing
FRAP 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.
Petitions for Rehearing
FRAP 35 (enbanc)enbanc consideration is necessary to secure or maintain uniformity of the court's decisions; ortheproceeding involves a question of exceptional importance.
Motions to Reconsider
Circuit Rule 27-10(a)(1)Filing forReconsideration: Ordersthat terminate thecaseCircuit Rule 27-10(a)(3)Required showing: Aparty 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.
Motions to Stay the Mandate
FRAP 41(b)WhenIssued. 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 rehearingenbanc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time.
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 rehearingenbanc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.
Motions to Vacate the Decision
Orozco v.Mukasey, 546F.3d1147 (9th Cir. 2008) (vacating Orozco v.Mukasey, 521F.3d1068 (9th Cir. 2008) upon joint motion of the parties).
Motions to Stay the Mandate
Bell 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, 955F.2d614, 620-21 (9th Cir. 1992),(stayof the mandate underFed.R.App.P. 41(b), “would have to be justified upon the same grounds as would justify a recall of mandate.”)
Motions to Stay the Mandate
Myers v. Holder, 661F.3d1178, (Mem)-1179 (9th Cir. 2011)Aguilar–Escobarv. INS, 136F.3d1240, 1241 (9thCir.1998)Alvarez–Ruizv. INS, 749F.2d1314, 1316 (9thCir.1984)Khourassanyv. INS,208F.3d1096, 1101 (9thCir.2000)Roque–Carranzav. INS,778F.2d1373, 1374 (9thCir.1985)
Motions to Stay the Mandate
Indefinite stays?FRAP 41(d)(2) (may not exceed 90 days)Must exhaust stay with BIA or DHS?Stay cannot be filed until deportation is imminentShaboyanv. Holder, 652F.3d988, 989 (9th Cir. 2011) (no jurisdiction to review denial of stay filed with motion to reopen)
Motions for Attorneys’ Fees
Equal Access to Justice Act.28U.S.C. § 2412(d)File within 30 days of FINAL decision, or 120 days of decision90 days for government to file for certiorariIncludes motionsto remand.Li v.Keisler, 505 F.3d 913, 915 (9th Cir. 2007)
Motions for Attorneys’ Fees
Prevailing PartyRemandDismissalFee agreementsGovernment’s Position was not substantially justified before the agency or in litigationSpecial circumstances do not make an award unjust
Motion for Attorneys’ Fees
Statutory rate, $125/hradjusted for inflationParalegals and Law ClerksEnhanced rates:Nadarajahv. Holder, 569 F.3d 906, 912 (9th Cir. 2009)Specialized skillsNecessary for the litigationNot available at the statutory rate
Returning Your Client After Removal
The Solicitor General assured the Supreme Court inNkenv. 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.
Returning Your Client After Removal
Return 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, ifappropriate.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.”

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09f949406b90716e49937d67fd8ab8b9-Ninth Circuit Motion Practice - United States Court of ...