TABLE OF CONTENTS LITIGATING IMMIGRATION CASES IN FEDERAL COURT

Transcription

1 LITIGATING IMMIGRATION CASES IN FEDERAL COURT 4th Edition Dedication... v About the Author... xi Preface... xxxi Acknowledgments... xxxii Table of Decisions Subject-Matter Index Chapter 1: Initial Considerations The Claims to Be Presented... 1 The Claims to Be Presented... 3 When and Where to File... 5 Chapter 2: Justiciability: Standing, Mootness, and Ripeness Standing Article III Standing: The Irreducible Constitutional Minimum Injury in Fact Causation Redressability Quick Cites Quick Cites Prudential Standing Generalized Grievance Rights of Third Parties Zone of Interest Quick Cites Organizational Standing Quick Cites Associational Standing Mootness Quick Cites Ripeness Fitness for Judicial Review Hardship to the Parties Quick Cites Chapter 3: Exhaustion of Administrative Remedies General Considerations Exhaustion as a Prudential Requirement xiii

2 xiv LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. Quick Cites Quick Cites Quick Cites Quick Cites Exhaustion as a Statutory Requirement Review of Orders of Removal INA 242(d) Is a Claim-Processing Rule, Not a Jurisdictional Rule Does an Appeal Have to Be Filed with the Board of Immigration Appeals? Quick Cites Does the Issue Have to Be Presented to the BIA? Quick Cites Quick Cites Constitutional Claims and Challenges to Regulations Quick Cites Futility Quick Cites Citizenship Claims Quick Cites Manifest Injustice Quick Cites Does a Motion to Reopen or Reconsider Have to Be Filed? Waiver of Right to Appeal Quick Cites Release from Custody Decisions Quick Cites Other Agency Decisions Lawsuit Brought Under the APA Statutory Exhaustion Requirement Regulatory Exhaustion Requirement Required vs. Permissive Administrative Appeals No Stay of Administrative Decision Pending Administrative Appeal Legalization and LIFE Act Cases Naturalization Decisions Mandamus in Delay Cases Chapter 4: Subject Matter Jurisdiction: General Considerations Constitutional Framework Statutory Framework Limitations on Judicial Review Channeling Provisions Preclusion Provisions... 77

3 xv Jurisdictional Rules vs. Claim-Processing Rules Quick Cites Chapter 5: Judicial Review of Removal Orders Review Under INA 242 General Considerations What Is a Final Order of Removal? BIA Issues Order Terminating Proceedings BIA Issues Order of Removal in the First Instance BIA Grants Motion to Reopen or Motion to Reconsider BIA Grants Voluntary Departure BIA Issues Order Remanding to Immigration Judge Immigration Judge Decision on Remand from BIA Asylum-Only and Withholding-Only Proceedings Time for Filing Stay of Removal Stay of Voluntary Departure Period Release from Detention Scope of Review Quick Cites Standard of Review Constitutional Issues and Issues of Law Quick Cites Quick Cites Application of Law to Undisputed Facts Quick Cites Findings of Fact Quick Cites Quick Cites Discretionary Decisions Quick Cites Failure to Provide Reasoned Explanation Quick Cites Review of Citizenship Claims Review of Streamlined Decisions Jurisdiction to Review Streamlined Decision Due Process Challenges to Streamlining Regulations Other Challenges to Streamlined Decisions BIA Violation of Streamlining Regulations Appeals Involving Discretionary and Non-Discretionary Aspects Pattern and Practice Cases Chapter 6: IIRAIRA s Jurisdiction-Stripping Provisions INA 242(a)(2)(B) Review of Discretionary Decisions Is the Decision Specified Under This Title to Be Discretionary?

4 xvi LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. What Constitutes a Discretionary Decision? Quick Cites Reviewable Aspects of Discretionary Decisions Violation of Due Process Quick Cites Quick Cites Statutory Eligibility for Discretionary Relief Quick Cites Application of Legal Concepts to Facts Quick Cites Findings of Fact Unlawful Exercise of Discretion Quick Cites INA 242(a)(2)(C) Review of Criminal Cases Do INA 242(a)(2)(C) Restrictions Apply? Quick Cites Scope of Review Under INA 242(a)(2)(C) Quick Cites Quick Cites INA 240B(f) Voluntary Departure INA 208(a)(3) One-Year Time Bar for Asylum Applications Quick Cites INA 242(g) Prosecutorial and Enforcement Decisions Quick Cites Chapter 7: Due Process in Removal Proceedings The Content of Due Process Fair Hearing Before the Immigration Judge Failure to Grant Continuance Quick Cites Quick Cites Failure to Change Venue Quick Cites Failure to Advise of Eligibility for Relief Quick Cites Access to Evidence Quick Cites Failure to Allow Witness to Testify Quick Cites Quick Cite Reliance on Hearsay Evidence Quick Cites Inadequate Translation Quick Cites Failure to Provide an Explanation Based on Evidence in the Record Quick Cites

5 xvii Quick Cites The Right to a Neutral Judge Quick Cites Quick Cites Videoconferencing Fair Opportunity for an Administrative Appeal Notice of Appeal Rights Quick Cites Administrative Notice of New Facts Quick Cites Right to Effective Assistance of Counsel Quick Cites Quick Cites Ineffective Assistance of Counsel as a Private Wrong Ineffective Assistance of Counsel in Connection with Discretionary Relief Quick Cites Prejudice Is a Showing of Prejudice Required? Quick Cites What Is the Standard for Showing Prejudice? Quick Cites What Law to Apply on Remand Quick Cites Chapter 8: Motions to Suppress Purposes of the Exclusionary Rule The Constitutional and Statutory Framework The Fourth Amendment: Searches and Seizures Exceptions to the Warrant Requirement Border Searches Consent Quick Cites Exigent Circumstances Terry Stops Quick Cites Searches and Seizures Probable Cause The Fifth Amendment: Interrogations The Statutory and Regulatory Framework Terry Stops Arrests Without a Warrant Site Inspections The Exclusionary Rule Standing to Object to Constitutional Violations Exclusionary Rule in Criminal Prosecutions

6 xviii LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. Violation of the Fourth Amendment Violation of the Fifth Amendment Action Outside Statutory or Regulatory Authority Exclusionary Rule in Civil Proceedings INS v. Lopez-Mendoza The Exclusionary Rule in Immigration Proceedings Egregious Violation of the Fourth Amendment Entry into Home Without Warrant or Consent Quick Cites Racial Profiling Quick Cites Widespread Violations Violation of the Fifth Amendment Quick Cites Action Outside Statutory or Regulatory Authority The Shifting Burden of Proof Fruit of the Poisonous Tree Evidence of Identity The Body of a Defendant Is Never Suppressible Suppression of Identity Evidence Statements Made During Removal Proceedings Chapter 9: Judicial Review of Expedited Removal Orders Expedited Orders Under INA 235(b)(1) (Arriving Alien) The Expedited Removal Process Jurisdiction to Review an Expedited Removal Order Due Process Challenge to Expedited Removal Procedures Challenge to Expedited Removal Order as Unlawful Expedited Orders of Removal Under INA 238 (Aggravated Felony) Expedited Orders of Removal Under INA 217 (Visa Waiver Program) Statutory and Regulatory Framework Challenges to Removal Where to File Adjustment of Status Asylum Reinstated Order of Removal Under INA 241(a)(5) Amendments Made by IIRAIRA Categories of Individuals Not Subject to Reinstatement Withholding of Removal and Protection Under CAT VAWA Benefits U-Visa and T-Visa Applications Duran-Gonzales Class Members

7 xix Retroactive Application of INA 241(a)(5) Quick Cites Validity of the Regulations Under the Statute Judicial Review Review in Court of Appeals Time for Filing Petition for Review Proper Venue for Filing Petition for Review Review of the EOIR Witholding-Only Decision Review of the Reinstatement Order Challenge to Validity of Prior Order INA 245(a)(5) Traditional View That Collateral Attack Is Permitted Collateral Attack After IIRAIRA and the REAL ID Act Collateral Attack in the Courts of Appeals Collateral Attack by Motion to Reopen Collateral Attack in Habeas Proceedings Motion to Reopen Reinstatement Order Chapter 10: Judicial Review of Motions to Reopen Stay of Removal Pending Review of Motion to Reopen Judicial Review of Motion to Reopen In Absentia Order of Removal In Absentia Orders Before IMMACT90 (OSC Issued Before June 13, 1992) In Absentia Orders Under IMMACT90 (OSC Issued from June 13, 1992 to May 31, 1997) No Notice Quick Cites Exceptional Circumstances Quick Cites In Absentia Orders After IIRAIRA (NTA Issued on or After April 1, 1997) Quick Cites Judicial Review of Non-In Absentia Motion to Reopen Cases Not Involving Discretionary Decisions Under INA 242(a)(2)(B) Quick Cites Cases Involving Discretionary Relief Under INA 242(a)(2)(B) Discretionary Relief Not Previously Applied For Discretionary Relief Previously Applied For Motion to Reopen to Apply for Benefits Outside Removal Proceedings Motion to Reopen After Departure from the United States Quick Cites Preserving Voluntary Departure Equitable Tolling Deception, Fraud or Error Ineffective Assistance of Counsel Lozada Requirements

8 xx LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. Quick Cites Ineffective Assistance Quick Cites Quick Cites Other Reasons for Equitable Tolling Quick Cites Due Diligence Quick Cites Prejudice Sua Sponte Reopening Quick Cites Chapter 11: Collateral Attack on Prior Order of Removal The Traditional Gross Miscarriage of Justice Standard Gross Miscarriage of Justice in the Immigration Context Quick Cites Acquital in 1326 Prosecution Chapter 12: Review of Removal Orders in Habeas Proceedings Historical Use of Habeas to Challenge Order of Deportation Scope of Review in Habeas Proceedings Constitutional Claims Quick Cites Statutory and Regulatory Claims Quick Cites Application of Law to Facts Quick Cites Findings of Fact Quick Cites Abuse of Discretion Quick Cites Whether Habeas Review Can Be Eliminated Habeas Review of Removal Orders After the REAL ID Act Petition for Review Not Filed Within 30 Days of the BIA s Decision Development of Record Adequate for Judicial Review Quick Cites Ultra Vires or Non-Existent Order of Removal Time for Filing Stay of Removal Naming the Proper Respondent Venue Chapter 13: Judicial Review of Immigration Detention The Constitutional Framework

9 xxi The Statutory Framework INA 236(a) and 236(c) Pre-Final Order Mandatory Detention Prolonged Detention Under Quick Cites Quick Cites The When Released Issue Quick Cites Conditional Parole INA 241(a) Post-Final Order Detention During Withholding Only Proceedings Quick Cites Indefinite Detention Prolonged Detention Under 241(a)(6) (b) Individuals Who Are Applying for Admission Statutory and Regulatory Framework Lawful Permanent Residents as Arriving Aliens Grounds of Removal Burden of Proof Detention Status Travel on Advance Parole Prolonged Detention Under 235(b) Prolonged Detention Generally Individuals with a Colorable Claim to Citizenship Jurisdictional Considerations The In Custody Requirement Exhaustion of Administrative Remedies INA 236(e) Limitation on Judicial Review Quick Cites Naming the Proper Respondent Venue Relief Available Chapter 14: Judicial Review Under the APA USC 1331 Review Versus INA 242 Review Decisions Made Outside Removal Proceedings: Examples Reinstatement of Nonimmigrant Status Extension of Stay Marriage Fraud Penalty Termination of Asylum Status Decisions Made Outside Removal Proceedings but Renewed Before an Immigration Judge Pattern and Practice Cases BIA Sua Sponte Decision to Reopen Removal Proceedings Application of the APA

10 xxii LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. Time for Filing Proper Plaintiffs Labor Certification and Visa Petitions Marriage Fraud Penalty Porting Under AC Constular Decisions Denying Visas Proper Defendants Venue Discovery Scope of Review Standard of Review De Novo Review Substantial Evidence Arbitrary and Capricious Right to Counsel Primary and Secondary Inspection at the Border Deferred Inspection Expedited Removal Review of Discretionary Decisions APA 701(a)(2) Committed to Agency Discretion by Law Quick Cites INA 242(a)(2)(B) Review of Discretionary Decisions INA 242(g) Review of Decisions Related to Removal Proceedings Quick Cites INA 242(b)(9) Review of Issues Arising From Removal Proceedings Due Process in APA Cases Liberty Property Due Process and Disretionary Benefits What Process Is Due Quick Cites Mandamus for Delay Cases Delay Is Not Discretionary Quick Cites Elements Necessary for Mandamus Clear Duty on the Agency to Perform the Act Clear Right to the Relief Requested Quick Cites Quick Cites No Adequate Alternaative Remedy Available Mootness Chapter 15: Consular Non-Reviewability

11 xxiii Quick Cites The Early Cases The APA and INA Kleindienst v. Mandel Post-Mandel Case Law Response to Arguments for Consular Non-Reviewability Statutes Precluding Judicial Review INA 104(a) INA 106(b) Committed to Agency Discretion by Law Standing General Standing Principles Standing of Noncitizens Standing of U.S. Citizens and Lawful Permanent Residents The Proper Defendant Plenary Power Kerry v. Din Consular Reviewability Review of Decisions to Revoke a Visa Review of Failure to Act Review of Failure ro Follow Statute or Regulations Review of Factual Basis for Consular Officer s Decision Conclusion Chapter 16: Judicial Review of Legalization and LIFE Act Decisions Review Under INA 106 as in Effect Before October 1, Review of Discretionary Denials Review of Legalization Decisions Issued After a Final Order of Removal Already Exists Chapter 17: Judicial Review of Citizenship Claims and Naturalization Decisions Judicial Review of Citizenship Claims Review in Declaratory Judgment Action Review in Removal Proceedings Judicial Review of Naturalization Decisions Time for Filing Completion of FBI Name Check Scope of Review

12 xxiv LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. Pendency of Removal Proceedings Chapter 18: Chevron Deference and Brand X The Administrative Framework Chevron Deference Statutory Ambiguity Quick Cites Congressional Delegation of Rule-Making Power Naturalization and Citizenship Issues State and Federal Criminal Law Quick Cites State Law Circuit Court Law Quick Cites Retroactivity Issues Quick Cites Agency Exercise of Rule-Making Power Quick Cites Reasonableness of Agency Decision Quick Cites Brand X Deference Auer Deference Quick Cites Chapter 19: Retroactivity Retroactivity of Statutes The Framework for Retroactivity Analysis Discerning Congressional Intent Retroactive Effect Reliance Conduct Showing Reliance Quick Cites Retroactivity of Specific Statutory Provisions Deportability for Aggravated Felony Conviction Elimination of 212(c) Waiver Conviction by Guilty Plea Conviction After Trial Elimination of Suspension of Deportation Amendments to 212(h) Amendments to INA 212(i) Reinstatement of Order of Removal INA 241(a)(5) Elimination of Fleuti Brief, Casual and Innocent Rule INA 101(a)(13) Stop-Time Rule INA 240A(d)

13 xxv Retroactive Application of Agency Regulations and Precedent Decisions Retroactive Application of New Regulations Quick Cites Does the agency intend that the new regulation be applied retroactively? Is it fair and reasonable to apply the regulation retroactively? Quick Cites Retroactive Application of New Precedent Decisions Quick Cites Chapter 20: Freedom of Information Act FOIA Exemptions Exemption 3 (Statutory Exemption) Exemption 5 (Litigation Privileges) Deliberative-Proccess Privilege Attorney Work-Product Privilege Attorney-Client Privilege Exemption 6 (Privacy Concerns) Exemption 7 (Law Enforcement Documents) Segregable Portions of Record Vaughan Index FOIA Procedures Making the FOIA Request Day Response Time The Determination Production of Documents The Administrative Appeal Expedite Requests FOIA Litigation Jurisdiction Exhaustion of Administrative Remedies Standing and Mootness Relief Inadequate Search Inadequate Justification for Withholding of Documents Prodution of Documents Attorneys Fees When to File Who is Eligible for Attorneys Fees Substantially Prevailed Discretionary Considerations Public Benefit Commercial Benefit to Plaintiff Nature of Plaintiff s Interest

14 xxvi LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. Reasonableness of Withholding Documents Amount of the Award Attorneys Fees Other Litigation Costs Chapter 21: International Law Considerations International Law as a Source of Federal Power over Immigration The Foundation Cases Development in Interantional Human Rights Law Limits on Federal Power over Immigration International Law as Supreme Law of the Land Treaties Customary International Law (The Law of Nations) Litigating in International Tribunals Use of International Law in Domestic Courts Constitutional and Statutory Interpretation Quick Cites Facilitating Consideration of International Law Chapter 22: Preparing and Filing the Complaint or Petition for Review, and Requests for Stay Civil Complaint Preparation of a Civil Complaint Pleading Standards When and Where to File What to File Whom to Serve Petition for Habeas Corpus Preparation of a Habeas Petition When and Where to File What to File Whom to Serve Petition for Writ of Mandamus Preparation of a Mandamus Complaint Filing and Serving the Petition Petition to Review Naturalization Application Preparing the Petition Filing and Serving the Petition Petition for Review of Order of Removal Preparing the Petition for Review

15 xxvii Request for Stay of Removal Stay of Voluntary Departure Time for Filing the Petition for Review Where to File What to File Whom to Serve After Service Chapter 23: Attorney s Fees and Costs Purpose of the Equal Access to Justice Act Elements Required for a Fee Award Civil Action Habeas Cases Quick Cites Mandamus Cases Quick Cites Naturalization Cases Quick Cites Filing Within 30 Days of Final Judgment District Court Cases Courts of Appeals Cases Net Worth of Petitioning Party Prevailing Party The Catalyst Theory The Buckhannon Standard Quick Cites Remanded Cases Lack of Substantial Justification Quick Cites No Special Circumstances Quick Cites Amount of Award EAJA Statutory Rate Adjusted for Cost of Living Enhanced Fees Limited Availability of Qualified Attorneys Counsel s Possession of Distinctive Knowledge and Skills Needful for the Litigation Qualified Counsel Not Available at the Statutory Rate Quick Cites Bad Faith Prevailing Market Rate Compensable Work Pre-Litigation Work Litigation Activity

16 xxviii LITIGATING IMMIGRATION CASES IN FEDERAL COURT, 4TH ED. Quick Cites Quick Cites Post-Litigation Activity Work Before the Agency on Remand Work on EAJA Fee Application Fees for Amici Non-Attorney Work Other Expenses Interest on Attorney s Fees Adequacy of Documentation Filing the Motion for EAJA Fees APPENDICES SAMPLE PLEADINGS A. Civil Complaint 1. Complaint Regarding Denial of Form I Complaint Regarding Denial of Form I-485 and I Complaint Regarding Consular Office Denial of Visa Proof of Service B. Petition for Writ of Habeas Corpus 1. Petition for Arriving Alien Held in Detention Petition Regarding Denial of Bond Petition and Emergency Motion for Stay of Transfer C. Petition for Writ of Mandamus 1. Mandamus Petition for Failure to Adjudicate Form I D. Petition for Review of Naturalization Application 1. Petition for Review of Citizenship Claim Petition for Review of Denied Naturalization Application (INA 310(c)) Motion to Schedule De Novo Hearing E. Petition for Review of Removal Order 1. Petition for Review Regarding Denial of Cancellation of Removal Petition for Review Regarding Denial of Motion to Reopen Petition for Review Regarding Denial of Reasonable Fear Motion for Stay of Removal

17 xxix 5. Certificate of Service for Petition of Review F. FOIA 1. FOIA Request Contact Information FOIA Request FOIA Complaint G. EAJA Fees 1. Motion for Attorney s Fees EAJA Fee Declaration of Counsel EAJA Fee Declaration Regarding Enhanced Fees Assignment of Interest in Court-Awarded Attorneys Fees