NILA in Action

Practice Alert & Template Motions: Construing the Reopening Limitation in the Reinstatement Statute

On May 7, 2024, in Suate-Orellana v. Garland, No. 19-72446, 101 F.4th 624, 2024 WL 2004951 (9th Cir. 2024) held that the reopening limitation in the reinstatement statute, 8 U.S.C. § 1231(a)(5), is a non-jurisdictional claim-processing rule, subject to waiver and forfeiture. NILA’s newly issued practice alert addresses the decision and is accompanied by two template motions based on Suate-Oreellana – a motion to reconsider and a motion to reopen – in Word that are downloadable. These motions are Ninth-Circuit specific but can be modified for filing in cases outside of the Ninth Circuit. Note that, ideally, motions to reconsider should be filed by June 6, 2024, and motions to reopen should be filed by August 5, 2024. Like all NILA advisories and templates, the alert and template motions are available on the of our website:

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Join NILA in Chicago to Celebrate Marc Van Der Hout!

We are thrilled to announce the launch of the Marc Van Der Hout Litigation Fellowship to be housed at NILA! The Fellowship is designed to advance the development of fierce and creative litigators like Marc by engaging in impact, transparency, and accountability litigation at NILA. To recognize this milestone, we cordially invite those of you in Chicago, and those who will be in Chicago for the American Immigration Lawyers Association’s annual conference, to join us for a special reception inaugurating the Fellowship and honoring Marc on Wednesday, June 12, 7:00 pm – 8:00 pm Central, at the McCormick Conference Center, Room McCormick West, W181a, Level 1. For those who will not be in Chicago, we invite you to celebrate Marc by donating to the Fellowship.

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Ninth Circuit Adopts NILA Argument in Suate-Orellana

On May 7, 2024, the Ninth Circuit issued a decision in Suate-Orellana v. Garland, a petition for review litigated by the New York University School of Law Immigrant Rights Clinic (including several supervising attorneys and law students, and brilliantly argued by Jessice Rofe) with amicus support provided by NILA. The court found both that Mrs. Suate-Orellana’s motion to reconsider sufficiently raised her claim that she was ordered removed on the basis of a defective Notice to Appear and rejected the government’s contention that the BIA lacked jurisdiction over the motion because the removal order had been reinstated under 8 U.S.C. section 1231(a)(5). With respect to the latter argument, the Ninth Circuit found that the “reopening” bar was a non-jurisdictional, claim-processing rule and that the government had forfeited its objection. NILA long has been arguing that the “reopening” bar is nonjurisdictional and, thus, subject to a “gross miscarriage of justice” exception, including in an individual petition for review, en banc rehearing petitions to the Ninth Circuit in Bravo-Bravo v. Garland and Guitierrez-Zavala v. Garland, an en banc petition to the Tenth Circuit in Zapata-Chacon v. Garland. NILA and co-counsel currently have this issue pending in the Second Circuit and are interested in co-counseling or providing additional amicus support in these cases.

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