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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