AILA Chapter Meeting

March 2, 2015

Federal Practice: Updates from the 2nd Circuit, Petitions for Review, Habeas and Mandamus Actions

Speakers:

Aleksander Milch, Esq.

Hon. Robert A. Katzmann, Chief Judge, U.S. Court of Appeals for the Second Circuit

Catherine O’Hagan Wolfe, Clerk of Court, U.S. Court of Appeals for the Second Circuit

Matthew Guadagno, Esq.

Paul Grotas, Esq.

Paul O’Dwyer, Esq.

  1. Update on Recent Issues at the U.S. Court of Appeals for the Second Circuit
  2. U.S. Court of Appeals for the Second Circuit case load has fallen
  3. In 2008, 2,900 new immigration case filings
  4. In 2014, 1,200 new immigration case filings
  5. Jacobson Remand/Tolling program:
  6. Between 2013-2014 reduced 1,200 cases to remands to the Board of Immigration appeal
  7. 17% rate of appeal
  8. Prefer administrative procedures then go to circuit court
  9. 6 of 1,200 remand cases have been reinstated, put back on track quickly
  10. 2011 exercise of more prosecutorial discretion due to “Morton memo”
  11. Lowest removal enforcement priority are those with removal orders after January 1, 2014
  12. Retolling program requests:
  13. Very few denied
  14. 60 days held in abeyance
  15. No formal abeyance in place (300 of 900)
  16. U.S. Court of Appeals for the Second Circuit has a brief bank, AILA contributes Amicus briefs and AIC also has briefs
  1. Update Regarding the Immigrant Justice Corps and the NY Family Unity Project
  2. Immigrant Justice Corps: founded by the Robin Hood Foundation together with public and private fund raising, cost efficient model,
  3. Fellows: are 1 year out of law school
  4. 9 applicants for each available position, very competitive
  5. $50,000 stipend plus $6,000
  6. 35 cases and 7 motions
  7. 2 or 3 lawyer clusters, trained throughout the year by the Bronx Defenders
  8. AILA lawyers have also helped with training and will have ongoing involvement
  9. Represent detained and non-detained
  1. Petitions for Review: Nuts & Bolts
  2. Petition for Review: Jurisdiction, filed 30 days after board decision
  3. ECF= Electronic Filing System, need login and password
  1. No certificate of service needed
  2. Filing fee is $500 payable by credit card
  3. Party is the Attorney General, ICF needs to be served within 14 days, Notice of Appearance and acknowledgement form,
  4. Certified administrative record next (everything EOIR has a record & BIA)
  5. 90 day tolling 2nd Circuit letter, tolling the case if prosecutorial discretion asked for (is this good for the client? Case off active calendar w/o prejudice to reinstate, back to BIA, issues decision order removed, this is a final order)
  6. 21 days’ notice before can remove client, can reinstate petition for review 9if good case, otherwise don’t want to do this)
  7. 90 day run or asking tolling period ends
  8. 14 days to waive court, set briefing up to 91 days
  9. Very strict about extensions and missing deadlines
  10. 2nd Circuit Motion for Extension (brief still due that day, if no response refer to disciplinary committee)
  11. Nonagruement calendar, no joint appendix
  12. Joint appendix, bound and specific index, 3 hard copies
  13. 6 hard copies of brief (all cases)
  1. Fed Rule Appellate 28 (what should be in a brief, Petition for Review)
  2. Get opposition brief in 91 days
  3. Then reply brief (no permission needed) good to see
  4. NAC decision less than 3 months
  1. Immigration Habeas Corpus Petitions: the Basics, and Recent Developments in “When Released” Cases under INA Section 236(e)
  2. Habeas Corpus: no way to work, poor health, sad feelings
  3. How to file, $5 filing fee, file in person in civil coversheet southern district
  4. Follow the client, filing over FL who is the custodian?
  5. Not warden of the jail, but the field office director (need to name the warden of the jail)
  6. In court Varick vs. jail in New Jersey
  7. Exhaust administrative remedies BIA
  8. 1st Circuit vacate rehearing enbanc (district court class action 1st Cir.) when released habeas
  9. Release INA 236(e) habeas case: plead elements of the crime (conditional discharge only release the arrest or time served, released prior to sentence or probation
  10. Mandatory detention (File Southern District)
  11. How to get a decision: Order to Show Cause
  1. District Court Litigation in the Asylum/Withholding Context: Habeas Petitions in Withholding-Only Proceedings and Mandamus Actions Against the Asylum Office