Ninth Circuit Immigration Law Training Seattle Washington WILLIAM

Ninth Circuit Immigration Law Training Seattle, Washington WILLIAM K. NAKAMURA COURTHOUSE May 5, 2016

Ninth Circuit Motion Practice And Jurisdictional Issues Allison Taylor, U. S. Court of Appeals for the Ninth Circuit John Blakeley, Office of Immigration Litigation Hilary Han, Dobrin & Han, PC

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

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 (9 th 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. 3 d 942 (9 th Cir. 2008)

Motion for Stay of Removal: Practice Pointers

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)

Government Motions � Motions for Summary Disposition � Motions to Dismiss (usually for lack of jurisdiction) � Petitioner’s failure to respond may be construed as a statement of 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. 3 d 517 (9 th Cir. 2014) (en banc) Ortiz-Alfaro v. Holder, 694 F. 3 d 955 (9 th Cir. 2012)

Jurisdiction over motions to reopen � Reyes Mata v. Lynch, 576 U. S. ___, 135 S. Ct. 2150 (2015) � Kucana v. Holder, 130 S. Ct. 827 (2010). � Dada v. Mukasey, 128 S. Ct. 2307 (2008).

Statutory bars to review �Certain applications �Certain discretionary decisions �Discretionary determinations �Cases of immigrants with certain criminal convictions

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). � 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).

Statutory Bars: Practice Pointers

…Questions?

Other Motions � Motion to Use Pseudonym, Redact Record or Seal Record Doe v. Holder, 736 F. 3 d 871, 872 n. 1 (9 th Cir. 2013) � Motion to Hold Briefing in Abeyance / Motion to Stay Proceedings � Motion for Brief Extension � Motion for Appointment of Pro Bono Counsel � Motion to Transfer (usually on claims for US citizenship)

Other Motions ctd… � 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)

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. 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).

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 (i. e. whether the conviction is an aggravated felony).

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. 2307 (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).

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).

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 and execution of removal orders.

Mediation, Prosecutorial Discretion and Remand Panelists Claudia Bernard (Chief Circuit Mediator) John Blakeley (Department of Justice) Stacy Tolchin (Private Practitioner, Los Angeles) Marc Van Der Hout (Private Practitioner, San Francisco)

Mediation in the Ninth Circuit A FEW STATISTICS CLAUDIA BERNARD

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 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 Deferred Came Back

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 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?

Questions?

Hot Topics in Criminal/Immigration Kathy Brady Immigrant Legal Resource Center Jennifer Keeney Office of Immigration Litigation, DOJ

Hot Topics I. The Categorical Approach: 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 statute divisible? (Almanza. Arenas, Mathis) • How much does that matter? • 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 Categorical Approach 2. Divisibility 3. Modified Categorical Approach 1.

Step 1: Categorical Approach Important Terminology �Generic Definition �Statute of Conviction �Elements

Step 1: 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

Step 1: Categorical Approach As Applied to Burglary Elements of statute of conviction: �Unlawful/ unprivileged �Entry or remaining in �Any occupied structure �With intent to commit a felony Elements of generic definition: �Unlawful/ unprivileged �Entry or remaining in �A building or structure �With intent to commit a crime

Step 1: Categorical Approach As Applied to Burglary Elements of statute of conviction: �Unlawful/unprivileged �Entry or remaining in �A building, structure, or vehicle �With intent to commit a felony Elements of generic definition: �Unlawful/unprivileged �Entry or remaining in �A building or structure �With intent to commit a crime

Step 2: Divisibility Descamps v. United States, 133 S. Ct. 2276 (2013) �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

Step 3: Modified Categorical Approach �Resort to criminal record when statute of conviction is divisible �Purpose to identify, from several alternatives, the crime of conviction to compare to generic definition

Step 3: Modified Categorical Approach Permissible criminal documents: Charging document Plea agreement Plea colloquy between judge and defendant Comparable judicial record

Step 3: Modified Categorical Approach As Applied to Burglary Elements of statute of conviction: �Unlawful/unprivileged �Entry or remaining in �A building, structure, or vehicle �With intent to commit a felony Elements of generic definition: �Unlawful/unprivileged �Entry or remaining in �A building or structure �With intent to commit a crime

Step 3: Modified Categorical Approach As Applied to Burglary Elements of statute of conviction: �Unlawful/unprivileged �Entry or remaining in �An occupied structure (defined to include a vehicle) �With intent to commit felony Elements of generic definition: �Unlawful/unprivileged �Entry or remaining in �A building or structure �With intent to commit a crime

Categorical Approach Road Map 1. Is there a categorical match? If so, immigrant loses and inquiry stops. If not, go to Step 2. Is the statute divisible? If not, immigrant wins and inquiry stops. If so, go to Step 3. Does the ROC establish that the offense of conviction comes within removal ground? What if the ROC is inconclusive and the applicant wants to apply for relief? (Young issue)

Case Example �Was Mr. Almanza-Arenas’ conviction for California Veh Code § 10851 a crime involving moral turpitude, so that he was barred from applying for non-LPR cancellation? • Almanza-Arenas v. Lynch, 809 F. 3 d 515 (9 th Cir. 2015) (en banc)

Step 1. Categorical Match? a. Identify the federal “generic” definition of the criminal law term in the removal ground, e. g. , of “burglary” or “crime involving moral turpitude. ” b. Identify the minimum conduct that violates the criminal statute at issue, also called the “least criminalized act. ” (This conduct must have a reasonable probability of being prosecuted. ) c. Compare them.

Step 1: Is § 10851 a Categorical CIMT? � Generic definition: The definition of a CIMT includes theft (a taking without consent), but only if the intent is to deprive the owner permanently. � Minimum conduct: Cal Vehicle Code § 10851 prohibits taking a vehicle with intent to deprive “permanently or temporarily. ” People have been prosecuted for taking a vehicle with intent to deprive temporarily. � Compare: Can one be convicted of VC § 10851 but not of the generic offense? If so, no categorical match.

§ 10851 TEMPORARY INTENT CIMT REQUIRES PERMANENT INTENT Go on to Step 2: Is § 10851 Divisible? © 2011 American Immigration Lawyers Associatio

Step 2: Is the Statute Divisible? a) Statute must set out different elements phrased in the alternative (using “or”). • E. g. , the term “entry” is not divisible. Descamps b) At least one but not all of the alternative offenses must trigger the removal ground. c) ** A jury must decide unanimously between the alternative offenses in order to find guilt, in every case. ** This is the definition of an “element. ” • Compare Almanza-Arenas with Mathis v. U. S. (11 th Cir 2014), cert granted 2016

Is § 10851 Divisible? a. Yes, 10851 sets out different statutory alternatives: “permanently or temporarily”. b. Yes, permanent intent is a CIMT, while temporary intent is not. c. ** Maybe – it depends on the test used. If jury unanimity rule applies (Almanza. Arenas), it is not divisible. Is that rule doesn’t apply (Mathis 11 th Cir), it is.

How much does divisibility matter? �A lot. Few criminal statutes (“a narrow range of cases”) are divisible under the “elements” test. Courts do not want to require jury unanimity on statutory alternatives in criminal cases. • See, e. g. , Sullivan rule cited in Rendon See Law of Inverse Unfortunate Outcomes of Immigration and Crimes TM

Divisibility Debate: Descamps Text �Divisible statute contains “multiple, alternative elements. ” �“Elements” = facts upon which a jury must unanimously agree in every case. Otherwise, statutory alternatives are just different “means” of committing a single crime. • See Richardson, relied upon in Descamps �Courts can look to the ROC only to determine the “elements” of a conviction – not the “means” by which it was committed.

Descamps Fn 2 � Fn. 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.

What to Do with Footnote 2? �Almanza-Arenas majority and some Courts of Appeals: Shepard documents are a “guide” if there is “difficulty in distinguishing between the elements and means” �Other Courts of Appeals: No distinction between means and elements. Any statute phrased in the disjunctive is divisible. �Supreme Court should resolve this in Mathis. Until then, Almanza-Arenas controls in the Ninth Circuit.

Almanza-Arenas Majority: Divisibility Analysis a. Look at text of the statute to ID elements. “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”

Determining Divisibility, Cont’d b. Confirm elements by examining Shepard docs, per Descamps fn 2 Here prosecutor charged “intent to either permanently or temporarily to deprive” Because prosecutors can’t charge two offenses in same count, it must be means, not elements But prosecutors don’t always charge correctly, so analysis “may not end” with Shepard documents (Almanza-Arenas, n. 13)

Determining Divisibility, cont’d c. Verify elements by looking to state case law and jury instructions In Rendon, where statute didn’t provide a “clear answer, ” court looked to state law. Because jury instructions resolved that the temporary/permanent distinction is a “means, ” majority found it need not look to state case law

Overbroad, Indivisible Statute = Immigrant Wins �No conviction under § 10851 ever is a CIMT for any purpose, as a matter of law. �This includes eligibility for relief. If a statute is indivisible the ROC is irrelevant, so no burden of proof switching as in Young. • But all facts are considered in discretionary decisions. See also Moncrieffe v. Holder: Because minimum prosecuted conduct is not an aggravated felony, Mr. Moncrieffe may apply for relief

If Statute is Divisible, Go to Step 3: Modified Categorical Approach �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. �Then the court will apply the categorical analysis to that offense. �Remember: If the statute is not divisible the ROC is irrelevant and none of this comes into play.

Young Issue: Divisible Statutes and Eligibility for Relief �ICE must prove deportability. For conviction of a divisible statute, an inconclusive ROC means the person is not deportable. �The immigrant must prove eligibility for relief, for example on factual issues. But does this extend to legal questions such as the character of a prior conviction under the categorical approach?

Young Ninth Circuit Holding �Applicant for relief must show under the modified categorical approach that the conviction was not for an offense that bars relief. Thus the applicant (a) must produce a record of conviction that (b) conclusively shows that the conviction does not bar relief. No record, or an inconclusive record, means applicant loses. �This issue is being heavily litigated. Circuit Courts of Appeals are split.

Argument that Moncrieffe overturned Young �While Moncrieffe concerned an indivisible statute, its reasoning overturns cases like Young. Moncrieffe: Affirms that if the ROC is inconclusive, then as a matter of law the conviction does not “necessarily” match the generic offense, as the categorical approach requires. 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 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

II. Crimes of Violence (COV) � 18 USC § 16 defines COV for immigration (and some federal criminal) purposes. Conviction of a COV with at least one year sentence imposed is an “aggravated felony. ” 8 USC 1101(a)(43)(F), INA 101 Conviction of a COV committed against victim with protected domestic relationship is a deportable “crime of domestic violence. ” 8 USC 1227(a)(2)(E)(i), INA 237

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 vagueness) to 18 U. S. C. § 16(b) �Now, to be a COV the offense must have an element of force under 18 USC 16(a) definition �Petition for rehearing was denied

CA Felonies Held COVs Only under § 16(b) �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 • See also discussion in ILRC & NIPNLG Advisories, www. ilrc. org/resources/some-felonies-should-nolonger-be-crimes-of-violence-for-immigrationpurposes-under-johnso

Will § 16(b) Go To Supreme Court? �Split between Seventh and Ninth Circuits, and Sixth Circuit �Compare U. S. v. Vivas-Ceja, 808 F. 3 d 719, 722 -23 (7 th Cir. 2015), Dimaya v. Lynch, with U. S. v. Taylor 09 -5517 (6 th Cir. 2/11/16) (re identical 18 USC 924(c)(3)(B)). �But in any case, the “ordinary gone. case analysis” is

See also �Voisine v. United States, cert. granted 136 S. Ct. 386 (2015) �Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016)

Case Citations Categorical Approach � Taylor v. United States, 495 U. S. 575, 602 (1990) � Gonzalez v. Duenas-Alvarez, 549 U. S. 183 (2007) � Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) � Descamps v. United States, 133 S. Ct. 2276 (2013), citing Richardson v. United States, 526 U. S. 813 (1999) � United States v. Grisel, 488 F. 3 d 844 (9 th Cir. 2007) � Young v. Holder, 697 F. 3 d 976 (9 th Cir. 2012) (en banc) � Rendon v. Holder, 764 F. 3 d 1077 (9 th Cir. 2014) � Almanza-Arenas v. Lynch, 809 F. 3 d 515 (9 th Cir. 2015) (en banc) (as amended 2/29/16)

�Categorical Approach, cont’d �Supreme Court Pending Cases United States v. Mathis, 136 S. Ct. 894 (2016), appeal of 786 F. 3 d 1068 (8 th Cir. 2015) Torres v. Lynch, 135 S. Ct. 2918 (2015), appeal of 764 F. 3 d 152 (2 nd Cir. 2014) �Crimes of Violence �Johnson v. United States, 135 S. Ct. 2551 (2015) �Dimaya v. Lynch, 803 F. 3 d 1110 (9 th Cir. 2015) �Supreme Court Pending Case United States v. Voisine, 136 S. Ct. 872 (2016), appeal of 778 F. 3 d 176 (1 st Cir. 2015)

Preparing Your Brief and Oral Argument from Attorneys’ Perspectives Hilary Han, Dobrin & Han, PC Matt Adams, Northwest Immigrant Rights Project

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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) 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 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, 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 MARC VAN DER HOUT STACY TOLCHIN JONATHAN WESTEN

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 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 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 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 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 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. 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) (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 (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. § 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 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. 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 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 � “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