Ninth Circuit Immigration Law Training Phoenix Arizona SANDRA

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Ninth Circuit Immigration Law Training Phoenix, Arizona SANDRA DAY O’CONNOR COURTHOUSE October 5, 2016

Ninth Circuit Immigration Law Training Phoenix, Arizona SANDRA DAY O’CONNOR COURTHOUSE October 5, 2016

Ninth Circuit Motion Practice And Jurisdictional Issues Allison Taylor, U. S. Court of Appeals

Ninth Circuit Motion Practice 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 �

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,

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)

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. 3 d 962, 964

Motion for Stay of Removal �Leiva-Perez v. Holder, 640 F. 3 d 962, 964 (9 th Cir. 2011) �Nken v. Holder, 556 U. S. 418 (2009)

Motion for Stay of Removal � Response by OIL � File a reply �

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. 3 d 942 (9 th Cir. 2008)

Practice Pointers Supplement with exhibits because the record is often filed after the stay

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

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

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. 3 d 1240, 1241 (9 th Cir. 1998) Alvarez–Ruiz v. INS, 749 F. 2 d 1314, 1316 (9 th Cir. 1984) Khourassany v. INS, 208 F. 3 d 1096, 1101 (9 th Cir. 2000) Roque–Carranza v. INS, 778 F. 2 d 1373, 1374 (9 th Cir. 1985)

Government Motions � Motions for Summary Disposition � Motions to Dismiss (usually for lack

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 � 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

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

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. 3 d 517 (9

Final agency order jurisdictional prerequisite �Abdisalan v. Holder, 774 F. 3 d 517 (9 th 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

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.

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.

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

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

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

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

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. 3 d 646 (9 th Cir. 2007).

Practice tips �Check the record for issues of law: �Check to see if IJ/BIA

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

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

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.

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

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

Mediation in the Ninth Circuit A FEW STATISTICS CHRIS GOELZ

Immigration Cases Received by Mediation 2012 - 2015 Immigration Cases Received 879 757 487

Immigration Cases Received by Mediation 2012 - 2015 Immigration Cases Received 879 757 487 205 2012 2013 2014 2015

Cases Received 1000 900 800 700 600 500 400 300 200 100 0 2012

Cases Received 1000 900 800 700 600 500 400 300 200 100 0 2012 2013 2014 Panel Referrals Other Court Referrals Opposed Remands Attorney Requests 2015

Attorney Requests 2015 300 250 244 211 200 150 100 50 5 0 Made

Attorney Requests 2015 300 250 244 211 200 150 100 50 5 0 Made Deferred Came Back

Unopposed Remands 454 500 450 400 350 300 250 200 183 2014 121 100

Unopposed Remands 454 500 450 400 350 300 250 200 183 2014 121 100 50 0 2012 2015

How does the mediation program work, and how has it changed since the President’s

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

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

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

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

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

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?

Questions?

Questions?

Best Practices for Attorneys STACY TOLCHIN

Best Practices for Attorneys STACY TOLCHIN

Best Practices for Attorneys DO’S AND DON’TS IN NINTH CIRCUIT PRACTICE FOR IMMIGRATION PRACTITIONERS

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

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

Hot Topics in Criminal/Immigration Kara Hartzler United States Office of Federal Defender, San Diego Jennifer Keeney Office of Immigration Litigation, DOJ

Hot Topics I. The Categorical Approach: Rendon, Almanza-Arenas, Mathis, and Young II. Crimes of

Hot Topics I. The Categorical Approach: Rendon, Almanza-Arenas, Mathis, and Young II. Crimes of Violence: Johnson and Dimaya

I. Categorical Approach What is the categorical approach? In particular: • When is a

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

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 Important Terminology • GENERIC DEFINITION • STATUTE OF CONVICTION • ELEMENTS

Categorical Approach �Compare: Elements of criminal statute of conviction to Elements of generic definition

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

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 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

Categorical Approach As Applied to Burglary Elements of statute of conviction: Elements of generic definition: �Unlawful/unprivileged �Entry or remaining in �A building, structure, �A building or structure or vehicle �With intent to commit a felony �With intent to commit a crime

Divisibility The Supreme Court’s Rule in Descamps �Holding: modified categorical approach only appropriate when

Divisibility The Supreme Court’s Rule in Descamps �Holding: modified categorical approach only appropriate when statute divisible �Divisible: statute lists multiple, alternative elements creating several different crimes �Purpose: identify from alternative elements the crime of conviction to compare to generic definition

Divisibility The Supreme Court’s Rule in Mathis �Statute lists multiple, alternative elements �Elements: Statutory

Divisibility The Supreme Court’s Rule in Mathis �Statute lists multiple, alternative elements �Elements: Statutory criteria that prosecutor must prove and that (as a legal matter) jury must find beyond a reasonable doubt to convict �Factual Means: Statutory criteria that (as a legal matter) a jury need not agree on to convict �Distinguishing between elements and factual means is central to the analysis

Modified Categorical Approach �When mere fact of conviction not match- may (at times) consult

Modified Categorical Approach �When mere fact of conviction not match- may (at times) consult criminal record �Only resort to criminal record when statute of conviction is divisible �Sole purpose - identify, from several alternatives, the crime of conviction to compare to generic definition �When statute is neither categorical nor divisible, inquiry ends

Modified Categorical Approach Permissible criminal documents: Charging document Plea agreement Plea colloquy between judge

Modified Categorical Approach Permissible criminal documents: Charging document Plea agreement Plea colloquy between judge and defendant Comparable judicial record

Modified Categorical Approach As Applied to Burglary Elements of statute of conviction: Elements of

Modified Categorical Approach As Applied to Burglary Elements of statute of conviction: Elements of generic definition: �Unlawful/unprivileged �Entry or remaining in �A building, structure, �A building or structure or vehicle �With intent to commit a felony �With intent to commit a crime

Modified Categorical Approach As Applied to Burglary Elements of statute of conviction: Elements of

Modified Categorical Approach As Applied to Burglary Elements of statute of conviction: Elements of generic definition: �Unlawful/unprivileged �Entry or remaining in �An occupied structure �A building or structure (defined to include a vehicle) �With intent to commit felony �With intent to commit a crime

For the visual learners… GENERIC FEDERAL DEFINITION STATE DEFINITION

For the visual learners… GENERIC FEDERAL DEFINITION STATE DEFINITION

For the visual learners… A O R B R E GENERIC FEDERAL DEFINITION V

For the visual learners… A O R B R E GENERIC FEDERAL DEFINITION V O STATE DEFINITION

For the visual learners… LAWFUL ENTRY VEHICLE R B R E A O UNLAWFUL

For the visual learners… LAWFUL ENTRY VEHICLE R B R E A O UNLAWFUL ENTRY V O BUILDING OR STRUCTURE

BUT, when is a statute divisible? • Under Descamps, statutes are only divisible if

BUT, when is a statute divisible? • Under Descamps, statutes are only divisible if they contain “multiple, alternative elements, ” rather than a “means” of committing a crime • An “element” is a fact the jury would have to unanimously agree upon • Because a jury would not have to decide whether an “entry” was lawful or lawful, it’s a “means, ” not an “element”

So what about disjunctive statutes? “entry” = indivisible BUT What about “house, tent, vessel,

So what about disjunctive statutes? “entry” = indivisible BUT What about “house, tent, vessel, etc. ”? Enter Descamps footnote 2…

Descamps footnote 2: “And if the dissent's real point is that distinguishing between ‘alternative

Descamps footnote 2: “And if the dissent's real point is that distinguishing between ‘alternative elements’ and ‘alternative means’ is difficult, we can see no real-world reason to worry. Whatever a statute lists (whether elements or means), the documents we approved in Taylor and Shepard—i. e. , indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime's elements. So a court need not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.

The Questions �When a statute says “X, Y, or Z” (e. g. , “house,

The Questions �When a statute says “X, Y, or Z” (e. g. , “house, tent, or vessel”) do we use the same means/ elements test? �If so, how do we know if these are “means” or “elements”?

The Approaches 1. Rendon (9 th Cir. three-judge panel) 2. Almanza-Arenas (9 th Cir.

The Approaches 1. Rendon (9 th Cir. three-judge panel) 2. Almanza-Arenas (9 th Cir. en banc panel) 3. Mathis (Supreme Court) All three adopt means/element test

The Approaches - Rendon �Rendon: can only use the record of conviction when “state

The Approaches - Rendon �Rendon: can only use the record of conviction when “state law requires” jury to decide between alternatives �Nine judges dissent from denial of en banc rehearing.

The Approaches - Rendon �J. Graber: Descamps fn. 2 means that disjunctive = divisible,

The Approaches - Rendon �J. Graber: Descamps fn. 2 means that disjunctive = divisible, doesn’t turn on means/elements �J. Kozinski: turns on means/ elements but you should “peek” at Shepard documents to determine elements

The Approaches - Almanza-Arenas: 1. Text

The Approaches - Almanza-Arenas: 1. Text

The Approaches - Almanza “Any person who drives or takes a vehicle not his

The Approaches - Almanza “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle”

The Approaches - Almanza Text (basically commas) “Peek” at Shepard docs (citing fn. 2)

The Approaches - Almanza Text (basically commas) “Peek” at Shepard docs (citing fn. 2) Jury instructions / maybe state case law?

The Approaches - Mathis 1. State case law/statutory text different penalties “illustrative examples” statute

The Approaches - Mathis 1. State case law/statutory text different penalties “illustrative examples” statute says if it’s elements/means 2. “Peek” at Shepard docs (charging doc and jury instructions in trial cases) 3. If inconclusive, we win!

The Approaches - Summary Rendon Almanza-Arenas 1. State case law 1. Text -commas? 2.

The Approaches - Summary Rendon Almanza-Arenas 1. State case law 1. Text -commas? 2. “Peek” at Shepard docs Mathis 1. State case law/text - different penalties - “illustrative examples” - statute says is element 2. “Peek” at Shepard docs (charging doc and jury instructions in trial cases) 3. Jury instructions/ maybe 3. If inconclusive, we state case law win

The Strategy – Five Points #1: Use Mathis, not Almanza • Instructions on using

The Strategy – Five Points #1: Use Mathis, not Almanza • Instructions on using text are better • Starts with case law, rather than making it optional • Says we win if inconclusive

The Strategy – Five Points #2: Emphasize the first step of looking at case

The Strategy – Five Points #2: Emphasize the first step of looking at case law/text �Don’t let judge skip directly to the “peek” �If case law/text resolves, then can’t look at Shepard docs

The Strategy – Five Points #3: Present other sets of conviction docs �Look for

The Strategy – Five Points #3: Present other sets of conviction docs �Look for docs from other cases and submit as part of record �Cite examples of charging docs from case law?

The Strategy – Five Points #4: Use the Sullivan rule �Default rule in California:

The Strategy – Five Points #4: Use the Sullivan rule �Default rule in California: “[W]hen a single crime can be committed in various ways, jurors are not required to unanimously agree upon the mode of commission. ” Rendon v. Holder, 764 F. 3 d 1077, 1090 n. 15 (9 th Cir. 2014)

The Strategy – Five Points #5: Create uncertainty so we win under third step

The Strategy – Five Points #5: Create uncertainty so we win under third step

What if the statute is divisible? Applying for relief �If a statute is divisible,

What if the statute is divisible? Applying for relief �If a statute is divisible, the court may consult certain facts from the reviewable record of conviction (ROC) to determine of which of the listed offenses the person was convicted.

Young Ninth Circuit Holding �ICE must prove deportability, so if statute is divisible, an

Young Ninth Circuit Holding �ICE must prove deportability, so if statute is divisible, an inconclusive record means we win �But under Young, an applicant for relief must show under the modified categorical approach that the conviction was not for an offense that bars relief. No record, or an inconclusive record, means applicant loses.

Argument that Moncrieffe overturned Young �While Moncrieffe concerned an indivisible statute, its reasoning overturns

Argument that Moncrieffe overturned Young �While Moncrieffe concerned an indivisible statute, its reasoning overturns cases like Young. Moncrieffe: If ROC is inconclusive, then as a matter of law the conviction does not “necessarily” match the generic offense. Rejects “an unfair result where two noncitizens, each ‘convicted of’ the same offense, might obtain different … determinations depending on what evidence remains available. . . ”

Young Issue Resources � See Moncrieffe, 133 S. Ct. at 1684 -85; see also

Young Issue Resources � See Moncrieffe, 133 S. Ct. at 1684 -85; see also Almanza-Arenas, 809 F. 3 d 515, 534 -35 (Watford, J. , concurring) and panel opinion. � Several cases involving the argument that Moncrieffe overturned Young await oral argument at the Ninth Circuit. Amicus brief will be posted at www. ilrc. org/crimes. � If you have such a Ninth Circuit case, contact awatchtenheim@immigrantdefenseproject. org

18 USC § 16 The term "crime of violence" means— a) an offense that

18 USC § 16 The term "crime of violence" means— a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense

Dimaya v. Lynch �Applied Supreme Court Johnson decision (finding ACCA residual clause void for

Dimaya v. Lynch �Applied Supreme Court Johnson decision (finding ACCA residual clause void for vagueness) to 18 U. S. C. § 16(b) �Now, to be a COV the offense must have an element of force under 18 U. S. C. § 16(a) definition

AZ Felonies Possibly Affected by Dimaya �Discharging a firearm at a structure § 13

AZ Felonies Possibly Affected by Dimaya �Discharging a firearm at a structure § 13 -1211 �Unlawful imprisonment § 13 -1303 �Burglary § 13 -1506 -08 �Stalking § 13 -3923 �Resisting arrest § 13 -2508(a)(2) �Unlawful flight § 28 -622. 01 �Escape § 13 -2502 -03

CA Felonies Possibly Affected by Dimaya �Residential burglary, PC § 459, 460(a) �Robbery §

CA Felonies Possibly Affected by Dimaya �Residential burglary, PC § 459, 460(a) �Robbery § 211 (but watch for theft) �Kidnapping § 207 �False Imprisonment (various) �Lewd Conduct with 14 -15 § 288(c) �Sexual Battery § 243. 4

Will § 16(b) Go To Supreme Court? �Split between Fifth Circuit and Sixth, Seventh,

Will § 16(b) Go To Supreme Court? �Split between Fifth Circuit and Sixth, Seventh, Ninth, and Tenth Circuits �But in any case, the “ordinary case analysis” is gone.

Preparing Your Brief and Oral Argument from Attorneys’ Perspectives Kara Hartzler Holly Cooper

Preparing Your Brief and Oral Argument from Attorneys’ Perspectives Kara Hartzler Holly Cooper

Do a Fresh Intake �Immigration law in constant evolution Executive programs (DACA) DAPA/DACA litigation

Do a Fresh Intake �Immigration law in constant evolution Executive programs (DACA) DAPA/DACA litigation �Client’s facts may change U visa and VAWA eligibility can change

Do a Fresh Intake �Lawyers make legal errors �Overlook citizenship claims �Changes in the

Do a Fresh Intake �Lawyers make legal errors �Overlook citizenship claims �Changes in the law Ie) Dimaya v. Lynch- finding a portion of the statutory definition of crime of violence void for vagueness.

Mediation �You should consider mediation if your client qualifies for new executive action, new

Mediation �You should consider mediation if your client qualifies for new executive action, new benefits due to a change in his/her facts, or if the law changes. �Don’t waste the court’s time if you and the government can come to an agreement.

Identify the Decision on Appeal �Immigration judge’s decision On review where BIA affirms the

Identify the Decision on Appeal �Immigration judge’s decision On review where BIA affirms the IJ’s decision �Board of Immigration Appeals’ decision On review where it provides new or additional reasoning. Both IJ and BIA decisions may be on review (ie. if BIA affirms IJ on some issues, but provides new, additional reasoning on other claims).

Checklist for Issue Spotting �Standard of proof—did IJ and BIA use the correct standard

Checklist for Issue Spotting �Standard of proof—did IJ and BIA use the correct standard of proof or any standard of proof at all? �Legal standard—did IJ and BIA use the correct legal standard applicable to your client’s case? �Evidence—did the IJ and BIA weigh all relevant evidence? �Proper waivers—did the IJ obtain the proper waivers from pro se respondent? (ie. waiver of right to counsel, waiver of right to present evidence).

SEC v. Chenery, 332 U. S. 194 (1947) “a reviewing court, in dealing with

SEC v. Chenery, 332 U. S. 194 (1947) “a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency, ” 332 U. S. at 196.

Chenery Doctrine cont. �First determine the basis provided by the agency Did the BIA

Chenery Doctrine cont. �First determine the basis provided by the agency Did the BIA adopt the IJ’s rationale or replace it? �If unclear, then remand may be appropriate: “ It will not do for a court to be compelled to guess at theory underlying the agency's action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive. ” Chenery, 322 U. S. at 196.

Chenery Doctrine cont. �Reject any attempt to provide alternative or missing rationale “Justice Department’s

Chenery Doctrine cont. �Reject any attempt to provide alternative or missing rationale “Justice Department’s lawyers are not allowed to supply the agency’s missing rationale in its brief—nor are we. ” Gattem v. Gonzales, 412 F. 3 d 758, 768 (7 th Cir. 2005) (Posner dissent).

Chevron Deference �Step one: Court must analyze the plain language of statute to determine

Chevron Deference �Step one: Court must analyze the plain language of statute to determine if intent is clear. If intent is clear there is no room to defer to agency interpretation. �Step two: If intent is not clear, Court will defer to reasonable agency interpretation of a statutory scheme it is entrusted to administer. Chevron, U. S. A. , Inc. v. Nat'l Res. Def. Council, Inc. , 467 U. S. 837 (1984)

Chevron Deference �Step One: Is the statute clear? Go beyond the plain language (any

Chevron Deference �Step One: Is the statute clear? Go beyond the plain language (any creative advocate can almost always argue there alternative interpretations) Court will apply the “traditional tools of statutory construction” to determine if statue is ambiguous Whether the statute is ambiguous is a legal issue determined de novo by the Court of Appeals

Chevron Deference �Step two—when to defer to the agency? 1. Is the statute at

Chevron Deference �Step two—when to defer to the agency? 1. Is the statute at issue one over which the agency is responsible to administer? E. g. , is the agency interpreting the INA or a criminal statute, even one referenced in the INA?

Chevron Deference �Step two (cont. )—when to defer to the agency? 2. Did agency

Chevron Deference �Step two (cont. )—when to defer to the agency? 2. Did agency rely on precedent decision? “interpretations promulgated in a non-precedential manner are ‘beyond the Chevron pale. ’ ”Estrada-Rodriguez v. Mukasey, 512 F. 3 d 517, 520 (9 th Cir. 2007). 3. Is the interpretation reasonable? Is it clear, does it contradict prior interpretations?

Waiver �Legal issues must be raised in your opening brief or you risk waiving

Waiver �Legal issues must be raised in your opening brief or you risk waiving them. �If government fails to raise an issue in its response brief, argue the issue is waived in your reply. �If the issue was not raised before the agency, try and meet an exception to waiver (issue of law, etc. ). �Waiver is separate from exhaustion—do not confuse the two. Exhaustion is jurisdictional, but waiver is not jurisdictional and has exceptions.

Retroactivity �Identify the correct immigration statute, regulation, and agency decisions that will govern your

Retroactivity �Identify the correct immigration statute, regulation, and agency decisions that will govern your case. �Identify changes in agency or judicial decisions which may affect your case. �If US citizenship claim, laws in effect at the time of birth or when the last condition precedent was fullfilled.

Preparing for Oral Argument (1) �Review the file as soon as the case is

Preparing for Oral Argument (1) �Review the file as soon as the case is set for oral argument Have pertinent decisions been issued since briefing was completed (or did you miss an important case in your brief)? If so, do a 28(j) letter. Have your client’s personal circumstances changed (eligibility for new relief? Is mediation an option? )?

Preparing for Oral Argument (2) �Be familiar with the administrative record Have notes with

Preparing for Oral Argument (2) �Be familiar with the administrative record Have notes with page numbers for important documents Have the administrative record at the podium with tabs �Do a moot argument

Preparing for Oral Argument (3) �Begin with a quick summary of the important issue(s)

Preparing for Oral Argument (3) �Begin with a quick summary of the important issue(s) and your position �Don’t recite the facts of the case �Know the weaknesses of your case and be prepared to address them �If a judge asks a question, answer it! �Have enough to say if you’re not asked questions �Save time for rebuttal

Preparing for Oral Argument (4) �Use rebuttal wisely Address the key issues raised by

Preparing for Oral Argument (4) �Use rebuttal wisely Address the key issues raised by opposing counsel Address questions from the panel that you didn’t adequately address before Time will be short, so focus on the most important points

Case Digest �Vartelas v. Holder, 132 S. Ct. 1479 (2012) �INS v. St. Cyr,

Case Digest �Vartelas v. Holder, 132 S. Ct. 1479 (2012) �INS v. St. Cyr, 533 U. S. 289 (2001) �Miguel v. Gonzales, 500 F. 3 d 941 (9 th Cir. 2007) �Toia v. Fasano, 334 F. 3 d 917 (9 th Cir. 2003) �Nunez-Reyes v. Holder, 646 F. 3 d 684 (9 th Cir. 2011)(en banc) �Montgomery Ward v. FTC, 691 F. 2 d 1322 (9 th Cir. 1982) �Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014)

Ninth Circuit: After the Decision JOHN BLAKELEY STACY TOLCHIN JONATHAN WESTEN

Ninth Circuit: After the Decision JOHN BLAKELEY STACY TOLCHIN JONATHAN WESTEN

After the judgment: timeline �Petition for rehearing : 45 days after circuit decision �

After the judgment: timeline �Petition for rehearing : 45 days after circuit decision � Same timeline for dispositive motions �Mandate 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 decision �Attorneys’ fees: 120 days after circuit decision

Petitions for Rehearing FRAP 40 (panel rehearing) FRAP 40(a)(2) The petition must state with

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 (en banc) �en banc consideration is necessary to secure

Petitions for Rehearing FRAP 35 (en banc) �en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or �the proceeding involves a question of exceptional importance.

Motions to Reconsider �Circuit Rule 27 -10(a)(1) Filing for Reconsideration: Orders that terminate the

Motions to Reconsider �Circuit Rule 27 -10(a)(1) Filing for Reconsideration: Orders that terminate the case (45 day deadline, same deadline for petitions for rehearing) �Circuit Rule 27 -10(a)(2) Filing for Reconsideration: All other orders (14 day deadline)

Motions to Reconsider Circuit Rule 27 -10(a)(3) �Required showing: A party seeking relief under

Motions to Reconsider Circuit Rule 27 -10(a)(3) �Required showing: A party 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) When Issued. The court's mandate must issue

Motions to Stay the Mandate FRAP 41(b) When Issued. 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 rehearing en banc, 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.

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 rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.

Motions to Stay the Mandate �Bell v. Thompson, 545 U. S. 794, 806 (2005)

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, 955 F. 2 d 614, 620 -21 (9 th Cir. 1992), (stay of the mandate under Fed. 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, 661 F. 3 d 1178, (Mem)-1179

Motions to Stay the Mandate �Myers v. Holder, 661 F. 3 d 1178, (Mem)-1179 (9 th Cir. 2011) �Aguilar–Escobar v. INS, 136 F. 3 d 1240, 1241 (9 th Cir. 1998) �Alvarez–Ruiz v. INS, 749 F. 2 d 1314, 1316 (9 th Cir. 1984) �Khourassany v. INS, 208 F. 3 d 1096, 1101 (9 th Cir. 2000) �Roque–Carranza v. INS, 778 F. 2 d 1373, 1374 (9 th Cir. 1985)

Motions for Attorneys’ Fees Equal Access to Justice Act. 28 U. S. C. §

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. 3 d 913, 915 (9 th Cir. 2007)

Motions for Attorneys’ Fees �Prevailing Party Remand Dismissal Fee agreements �Government’s Position was not

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, $125/hr adjusted for inflation http: //cdn. ca 9.

Motion for Attorneys’ Fees �Statutory rate, $125/hr adjusted for inflation http: //cdn. ca 9. uscourts. gov/datastore/uploads/immigration/i mmig_west/F. pdf �Paralegals and Law Clerks �Enhanced rates: Nadarajah v. Holder, 569 F. 3 d 906, 912 (9 th Cir. 2009) Specialized skills Necessary for the litigation Not available at the statutory rate

Returning Your Client After Removal • The Solicitor General assured the Supreme Court in

Returning Your Client After Removal • The Solicitor General assured the Supreme Court in Nken v. 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 �

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, if appropriate. � 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. ”

Returning Your Client After Removal �eroprosecutorialdiscretioninquiries@ice. dhs. gov �EROPublic. Advocate@ice. dhs. gov �Eligibility for

Returning Your Client After Removal �eroprosecutorialdiscretioninquiries@ice. dhs. gov �EROPublic. Advocate@ice. dhs. gov �Eligibility for bond?