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Ninth Circuit Motion PracticeAnd Jurisdictional Issues
SusanGelmis, U.S. Court of Appeals for the Ninth CircuitJohn Blakeley, Office of Immigration LitigationAndrew Knapp,Southwestern University School of LawHolly Cooper, UC Davis School of Law
Petitions for Review
Must file in 30 days of Final Agency DecisionBIA Decisions, DHS decisionsInclude agency decision, statement of jurisdiction, basis for claim, detention statusVenue based on location of agency decisionMay 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 clientDo not wait 30 days for Mexican nationals$505 filing fee or motion to proceed in formapauperisPFR and motion for stay can beefiledOnce docketed, contact ICE so it does not remove your clientPrepare 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-Perezv. Holder, 640 F.3d 962, 964 (9th Cir. 2011)Nkenv. Holder,556 U.S. 418, 129 S.Ct. 1749,173L.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 filedContact OIL to see if it can file the record early to avoid recreating the record through exhibitsRaise ICE policy on return—contact National Immigration Project
Motion for Stay of Removal
Non-oppositionsOppositionsFile a replyDecisionsJurisdiction remains even if the person is deportedSide note: Eligibility for bond hearingsBriefing schedule is issued if no other merits motions pending
Government Motions
Motions for Summary DispositionMotions 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 Cases27-8.1. Criminal CasesEvery 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 PetitionsEvery 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 toHold Briefing in AbeyanceMotion for Brief ExtensionMotion for Appointment of Pro Bono CounselMotion to Transfer (usually on claims for US citizenship)Motion to ReconsiderMotion to Recall MandateMotion to Stay the MandateAguilar–Escobar v. INS,136 F.3d 1240, 1241 (9th Cir.1998)Alvarez–Ruizv. INS,749 F.2d 1314, 1316 (9th Cir.1984)Khourassanyv. INS,208 F.3d 1096, 1101 (9thCir.2000)Roque–Carranzav. INS,778 F.2d 1373, 1374 (9th Cir.1985)
Petitions for Rehearing
File in 45 daysNow applies to dismissals based on lack of jurisdiction/summary dispositionExtensions of timePanel rehearingEn 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 mediationCourt ordered MediationProsecutorial DiscretionAttorneys Fees
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 rateParalegals and Law ClerksEnhanced rates:Nadarajahv. Holder, 569 F.3d 906, 912 (9th Cir. 2009)Specialized skillsNecessary for the litigationNot available at the statutory rate
Jurisdictional issues in immigration cases can be complex.Statutory barsExhaustion
Final agency order jurisdictional prerequisite
Abdisalanv. Holder, 774 F.3d 517(9th Cir. 2014) (when theBoard of Immigration Appeals issues a decisionthat deniessome claims, but remands any other claims forrelief toan Immigration Judge for further proceedings, theBoard decisionis not a final order of removal with regard to anyof theclaims, and it does not trigger the thirty-day windowin whichto file a petition for review.
Statutory bars for judicial review of certain applications
Barto judicial review of enumerated applications for discretionary relief at8U.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 at8U.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.InKucanav. Holder, 130S.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)TheSupreme Courtheld that federalcourts have jurisdiction toreview BIAdenials 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
TheSupreme Court has also affirmed the jurisdiction of the federal courts to review agency discretionary denials of motions to reopen.Kucanav. Holder, 130 S. Ct. 827 (2010).
Discretionary decisions
The NinthCircuit lacks jurisdiction to reviewagencydiscretionary determinations lacking governing legal standards under the rule ofHeckler v. Chaney, 470 U.S.821(1985).
Statutory bars for immigrants with certain criminal convictions
Congresshas restricted judicial review wherea noncitizenis 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
Judicialreview of legal and constitutional, as opposed to factual,determinationsis permitted under8U.S.C. §1252(a)(2)(D).Thisincludes 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(9thCir. 2007).
Practice tips
Check the record for issues of law:Check to see if IJ/BIA used the correct legal standardCheck for eligibility and deportability issuesCheck 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, 128S.Ct. 2307 (2008).The Supreme Court has also affirmed the jurisdiction of the federal courts to review agency discretionary denials of motions to reopen.Kucanav. Holder, 130 S. Ct. 827 (2010).
Departure from USA not a bar
Departurefrom the United States does not terminate jurisdiction.8 U.S.C.§1252(a).
Administrative exhaustion
The Ninth Circuit mayreview 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 issuesRetroactivity issuesUS nationality or citizenship claimsBIA decided the issueUltra vires statutory and regulatory issuesFutilityIssues occurred after BIA briefing
Zipper clause
8 U.S.C. § 1252(b)(9) “[j]udicialreview 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.





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