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«PRACTICE ADVISORY1 May 25, 2012 SEEKING A JUDICIAL STAY OF REMOVAL IN THE COURT OF APPEALS: STANDARD, IMPLICATIONS OF ICE’S RETURN POLICY AND THE ...»

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IMMIGRANT RIGHTS CLINIC

NYU SCHOOL OF LAW

PRACTICE ADVISORY1

May 25, 2012

SEEKING A JUDICIAL STAY OF REMOVAL IN THE COURT OF APPEALS:

STANDARD, IMPLICATIONS OF ICE’S RETURN POLICY AND THE OSG’S

MISPRESENTATION TO THE SUPREME COURT, AND

SAMPLE STAY MOTION

I. INTRODUCTION

Filing a petition for review of a removal order does not automatically stay the petitioner’s removal from the United States. INA § 242(b)(3), 8 U.S.C. § 1252(b)(3). However, the courts of appeals may issue a judicial stay of removal to prevent U.S. Immigration and Customs Enforcement (ICE) officers from deporting a person while his/her petition for review is pending before the court. In Nken v. Holder, 556 U.S. 418, 434 (2009), the Supreme Court instructed courts to adjudicate stay motions by applying the “traditional” standard for a stay.

This advisory begins with background information regarding stay requests, including when an immigration agency order becomes final and how to file a stay motion. See pages 2-5. Next, it discusses the legal standard for stay motions as set forth in Nken. See pages 5-7. Lastly, it addresses the implications on stay motions of the U.S. Immigration and Customs Enforcement (ICE) return policy and of the Office of the Solicitor General’s (OSG) misrepresentations to the Supreme Court regarding the government’s ability to return successful litigants. See pages 8-14.

1 Copyright (c) 2012, National Immigration Project of the National Lawyers Guild, Boston College Post Deportation Human Rights Project and Immigrant Rights Clinic, Washington Square Legal Services, New York University School of Law, and the American Immigration Council. The authors of this practice advisory are Trina Realmuto, Jessica Chicco, Nancy Morawetz, and Beth Werlin.

This practice advisory is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case.

The advisory also includes a sample stay motion containing legal arguments for litigants in stay litigation. It also contains a template declaration in support of a stay motion. See pages 36-38.

Finally, the advisory contains an appendix detailing local rules and procedures of circuit courts.

This practice advisory does not address stay requests submitted to the immigration agencies or to a district court, nor does it address requests under the All Writs Act.

Please contact us: The authors of this advisory would like to hear about how the courts are deciding stay motions and the government’s position on the return policy. Please email trina@nationalimmigrationproject.org and jessica.chicco@bc.edu with information about your cases. Also, the sample stay motion and sample declaration are available as Word documents upon request.

II. BACKGROUND INFORMATION

–  –  –

Once an order of removal becomes administratively final, the Department of Homeland Security (DHS), acting through its component agency U.S. Immigration and Customs Enforcement (ICE), immediately may remove the individual. Significantly, there is no automatic stay of removal during the 30-day period for filing a petition for review. Moreover, the mere filing of a stay motion does not temporarily stay removal until the court adjudicates the motion except in the Ninth and Second Circuits. In these circuits, the filing of a stay motion temporarily stays removal until the motion is adjudicated.2 (Similarly, filing a petition for review or stay motion does not toll the period for a motion to reopen or reconsider with the BIA.3) Even though a person may be removed immediately after the order becomes final, it may not always be advisable to file a stay motion right away. For example, if the individual is not detained, filing a stay motion may prompt ICE to arrest and detain him or her. Of course, ICE could arrest and detain a noncitizen with a final order at any time, even if a stay motion is not filed. Counsel must consider this risk as well as local ICE practices when deciding whether and when to file a stay motion.

2 In the Ninth Circuit, the filing of a stay motion automatically confers a temporary stay by operation of law. Deleon v. INS, 115 F.3d 643, 644 (9th Cir. 1997); General Order 6.4(c)(1) (General Orders of the Ninth Circuit Court of Appeals).

The Second Circuit has entered into an informal agreement with DHS: upon notification by the court that a stay motion has been filed, DHS will not remove the noncitizen until the court adjudicates the stay motion. See Matthew L. Guadagno, Nuts and Bolts in Presenting Petitions for Review to the U.S. Court of Appeals for the Second Circuit, p. 12, New York County Lawyers’ Association, Litigating Immigration Cases in the Second Circuit (Feb. 9, 2011).

Significantly, however, this agreement is not in writing and, therefore, its enforceability is questionable. See additional information in Appendix.

3 See Keo Chan v. Gonzales, 413 F.3d 161, 162 (1st Cir. 2005) (issuance of a stay of removal does not toll motion to reopen deadline); Randhawa v. Gonzales, 474 F.3d 918, 922 (6th Cir. 2007) (filing of petition for review does not toll motion to reopen deadline).





2 In deciding when to file the stay motion, it is important to consult the statutory and regulatory provisions that specify when a removal order becomes final. Keep in mind that both DHS and the Executive Office for Immigration Review (EOIR) – which includes immigration judges and the Board of Immigration Appeals (BIA) – have authority to issue orders of removal, depending on the circumstances.

Relevant here, an EOIR-issued order of removal becomes final upon the BIA’s dismissal of the appeal or upon overstaying the voluntary departure period granted by the BIA.4 When a DHSissued order becomes final depends on the type of order and whether the person has a fear of return to his or her country of origin. The following DHS removal orders generally are reviewable in the courts of appeals.5 Reinstatement Order. DHS may remove an individual following the entry of a reinstatement order pursuant to INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), unless the person is referred for a reasonable fear interview, see 8 C.F.R. §§ 241.8(e), 208.31. If an asylum officer, or an immigration judge reviewing the asylum officer’s decision at the noncitizen’s request, determines that the person has a reasonable fear of persecution or torture, DHS may not remove the person until the conclusion of proceedings to determine whether removal must be withheld or deferred, including any appeal of the immigration judge’s decision to the BIA. 8 C.F.R. §§ 208.31(e)-(g); 1208.31(e)-(g); 8 C.F.R. §§ 208.2(c)(2), 1208.2(c)(2). If the asylum officer, or an immigration judge reviewing the asylum officer’s decision at the noncitizen’s request, determines the person has not established a reasonable fear of persecution or torture, DHS may then remove the person. 8 C.F.R. §§ 208.31(f), (g)(1); 1208.31(f), (g)(1).

Removal Orders Against Non LPRS with Aggravated Felonies. DHS may issue a removal order against non-lawful permanent residents with aggravated felony convictions pursuant to INA § 238(b), 8 U.S.C. § 1228(b). In this situation, however, DHS is prevented from physically deporting the person “until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to apply for judicial review....” INA § 238(b)(3), 8 U.S.C. § 1228(b)(3); 8 C.F.R. § 238.1(f)(1). Further, if the 4 The regulations address final orders of removal and provide an order of removal shall become final: (1) upon an immigration judge’s order if the noncitizen waives his or her right to appeal to BIA (including a stipulated order of removal by which the noncitizen automatically waives appeal pursuant to 8 C.F.R. § 1003.25(b)); (2) upon expiration of the 30-day period for filing a BIA appeal if the right to appeal is reserved but no appeal is timely filed; (3) upon the BIA’s dismissal of the appeal; (4) if the case is certified to the BIA or the Attorney General, upon the subsequent order; (5) upon an immigration judge’s order of removal in absentia; (6) where the immigration judge grants voluntary departure, upon overstay of the voluntary departure period or failure to timely post the required bond; or (7) where the immigration judge grants voluntary departure and the noncitizen appeals to the BIA, upon the BIA’s order of removal or overstay of the voluntary departure period granted by the BIA. 8 C.F.R. §§ 241.1;

1241.1.

5 DHS also may issue an expedited removal order pursuant to INA § 235(b), 8 U.S.C. § 1225(b). However, the statute precludes judicial review of these orders in the courts of appeal so a stay motion generally is not appropriate. INA § 242(e)(1), 8 U.S.C. § 1242(e)(1).

3 individual requests withholding of removal, DHS must refer the case for a reasonable fear interview. 8 C.F.R. §§ 238.1(f)(3); 208.31. See paragraph above discussing when DHS may deport someone who has a reasonable fear interview.

Removal Order under the Visa Waiver Program. DHS also may issue and execute a removal order against an individual who entered on the visa waiver program unless the individual requests an asylum-only hearing before an immigration judge. INA § 217(b), 8 U.S.C. § 1187(b), 8 C.F.R. § 217.4(b).

B. How to File a Stay Motion

A stay motion is filed with the court of appeals with jurisdiction over the petition for review of the removal order. INA § 242(b)(2); 8 U.S.C. § 1252(b)(2). Practitioners may file the motion concurrently with a petition for review or after a petition for review has been filed.6 There is no fee for filing a motion for stay of removal (however, the filing fee for a petition for review is $ 450 unless the court waives it). A sample stay motion is provided at the end of this advisory.

The procedural vehicle for a stay request is a motion. Motions are governed by Federal Rule of Appellate Procedure (FRAP) 27 and corresponding local rules and internal operating procedures.7 Unless otherwise set forth by local rules, the government has 10 days to file an opposition to the motion, and the movant has 7 days to file a reply. FRAP 27(a)(3), (4). Given the importance of obtaining a stay for an individual and his/her family, counsel generally should not forego reply briefing.

Some circuits’ local rules require that the motion inform the court of the position of opposing counsel (see the Appendix for more information about local rules). Even where it is not required, attorneys should contact the Department of Justice, Office of Immigration Litigation (OIL) to obtain the Attorney General’s position on the stay motion. Often the OIL attorney will not take a position on the motion. If an OIL attorney has not entered an appearance yet, counsel can contact the OIL appellate division at (202) 616-4900. A court of appeals is more likely to grant an unopposed stay motion.

In general, stay motions should be detailed and well documented and should brief all the relevant factors, as explained more in the sample motion. If an attorney did not represent the noncitizen below and is preparing the stay motion in the absence of a complete administrative record, he or she may consider filing a skeletal stay motion and informing the court that he or she intends to supplement the motion with additional information and supporting documentation as soon as it is 6 See American Immigration Council, How to File a Petition for Review (February 2011), available at www.legalactioncenter.org/sites/default/files/lac_pa_041706.pdf.

7 Although FRAP 18 says “[a] petitioner must ordinarily move first before the agency for a stay pending review of its decision or order,” some courts already have held that doing so is not required in immigration cases. See, e.g., Alimi v. Ashcroft, 391 F.3d 888, 893 (7th Cir. 2004) (finding that there is no obligation to request a stay with the BIA); Sofinet v. DHS, 188 F.3d 703, 706-07 (7th Cir. 1999) (same). Requesting an agency stay often is not logistically possible and generally is impracticable.

4 possible to obtain the record. Check local rules for time limitations and procedure for submitting supplementary information. Attorneys may wish to create template skeletal motions for use in an emergency before the need to file a stay request arises.

The Appendix at the end of this advisory sets forth relevant local rules and procedures with regard to stay motions, including emergency stay motions, and provides contact information for the courts of appeals. A detailed discussion of specific local rules and procedures is beyond the scope of this advisory.

C. Stay Adjudications and Violations

If the court of appeals grants a stay motion, the stay is valid until the mandate issues. See, e.g., Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 856 (9th Cir. 2004). Note that the filing of a petition for panel or en banc rehearing stays issuance of the mandate until the court decides the petition. FRAP 41(d)(1).

If the court of appeals denies the stay and DHS deports the person, the court still has authority to adjudicate the petition for review. In other words, neither the stay denial nor the person’s deportation cuts off the circuit court’s jurisdiction to adjudicate the petition.8 If the court of appeals denies the stay, an individual could ask the Supreme Court for a stay.9 However, the Court rarely grants such requests.

If the court grants a stay and DHS nevertheless deports the person, ICE generally is more willing to facilitate and pay for return and, if not, counsel could pursue federal court remedies to compel return. Even if ICE returns the person, counsel may consider remedies under the Federal Tort Claims Act or Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

III. LEGAL STANDARD FOR STAY MOTIONS

The Supreme Court’s decision in Nken v. Holder governs stay motions. 556 U.S. 418 (2009).



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