Stay in Immigration Cases; Notification of Removal Date

In order to ensure the orderly presentation of issues placed before this Court in immigration cases and to preserve the Court's ability to make considered decisions in such cases, the Court adopts the following policy, which applies to petitions for review and to appeals from district court habeas proceedings (collectively, for purposes of this rule, "petitions"). 1. If the government has scheduled the removal of a petitioner, then the government will file with the Court a notice identifying the earliest date upon which removal may be made. The notice must be filed by the later of: one day after a petition is docketed in the court of appeals and notification is transmitted to the government via the court's CM/ECF system or immediately once removal is scheduled.

The absence of any such notice will be deemed a representation by counsel for the government that the government has not yet scheduled the removal of the petitioner. 2. When a first motion for stay of removal is timely filed in this court and notification is transmitted to the government via the court's CM/ECF system, the clerk will enter an administrative order staying removal for ten business days. The government shall file its response to the motion for stay of removal by the later of: two business days after the filing of 35 the first motion for stay of removal; or, ten business days prior to the earliest possible date of removal; provided, however, that any response must be filed within the time period specified by Fed. R. App. P. 27(a)(3)(A).

Upon motion and good cause, any of these deadlines, as well as the duration of the stay, may be revised in a particular case. This paragraph applies only to the first timely motion to stay removal filed in an individual case in this court. For purposes of this paragraph only, a first motion to stay removal will be deemed timely if filed by the later of: the docketing of the petition; or two business days after the filing of a notice by the government as provided in paragraph 1, above. If petitioner is pro se, this deadline shall not apply, but any stay motion should be filed as expeditiously as possible.

Rule 19. Settlement of a Judgment Enforcing an Agency Order in Part When the court files an opinion directing entry of judgment enforcing the agency’s order in part, the agency must within 14 days file with the clerk and serve on each other party a proposed judgment conforming to the opinion. A party who disagrees with the agency’s proposed judgment must within 10 days file with the clerk and serve the agency with a proposed judgment that the party believes conforms to the opinion. The court will settle the judgment and direct entry without further hearing or argument.

Rule 20. Applicability of Rules to the Review or Enforcement of an Agency Order All provisions of these rules, except Rules 3-14 and 22-23, apply to the review or enforcement of an agency order. In these rules, “appellant” includes a petitioner or applicant, and “appellee” includes a respondent.

TITLE V. EXTRAORDINARY WRITS

Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs (a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing. (1) A party petitioning for a writ of mandamus or prohibition directed to a court must file the petition with the circuit clerk and serve it on all parties to the proceeding in the trial court. The party must also provide a copy to the trial-court judge.

All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes. (2) (A) The petition must be titled “In re [name of petitioner].” (B) The petition must state: 36 (i) the relief sought; (ii) the issues presented; (iii) the facts necessary to understand the issue presented by the petition; and (iv) the reasons why the writ should issue. (C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition. (3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence. (1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time. (2) The clerk must serve the order to respond on all persons directed to respond.

(3) Two or more respondents may answer jointly. (4) The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals. (5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases. (7) The circuit clerk must send a copy of the final disposition to the trial-court judge. (c) Other Extraordinary Writs. An application for an extraordinary writ other than one provided for in Rule 21(a) must be made by filing a petition with the circuit clerk and serving it on the respondents.

Proceedings on the application must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) and (b). (d) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule 32(c)(2). An original and 3 copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case.

Except by the court's permission, and excluding the accompanying documents required by Rule 21(a)(2)(C); (1) a paper produced using a computer must not exceed 7,800 words; and (2) a handwritten or typewritten paper must not exceed 30 pages. 37 Local Rule 21.0. Petitions for Special Writs A petition for a writ of mandamus or writ of prohibition shall be entitled simply "In re , Petitioner." To the extent that relief is requested of a particular judge, unless otherwise ordered, the judge shall be represented pro forma by counsel for the party opposing the relief, who shall appear in the name of the party and not that of the judge.

TITLE VI.

HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS Rule 22. Habeas Corpus and Section 2255 Proceedings (a) Application for the Original Writ. An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court.

If a district court denies an application made or transferred to it, renewal of the application before a circuit judge is not permitted. The applicant may, under 28 U.S.C. § 2253, appeal to the court of appeals from the district court’s order denying the application. (b) Certificate of Appealability. (1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).

If an applicant files a notice of appeal, the district clerk must send to the court of appeals the certificate (if any) and the statement described in Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255 (if any), along with the notice of appeal and the file of the district-court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue it. (2) A request addressed to the court of appeals may be considered by a circuit judge or judges, as the court prescribes. If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.

(3) A certificate of appealability is not required when a state or its representative or the United States or its representative appeals. 38 Local Rule 22.0. Habeas Corpus; Certificate of Appealability (a) General Procedures. In this circuit, ordinarily neither the court nor a judge thereof will act on a request for a certificate of appealability if the district judge who refused the writ is available and has not ruled first.

The general procedures regarding certificates of appealability are set forth in Fed. R. App. P. 22 and Rule 11 of the Rules Governing Proceedings Under 28 U.S.C. § 2254 or § 2255. These latter rules require the district judge to rule on the issuance of a certificate of appealability when a final order issues. If the district court denies a certificate, the petitioner may not appeal the denial but may file a motion for a certificate of appealability before this court. A petitioner wishing to challenge the denial of a § 2254 or § 2255 petition must file a timely notice of appeal whether or not the district court issues a certificate of appealability.

(b) Denial in Full by District Court. If the district court denies a certificate of appealability, the petitioner should promptly apply within the time set by the clerk to the court of appeals for issuance of a certificate of appealability. The motion should be accompanied by a copy of the district court’s order and a memorandum giving specific and substantial reasons, and not mere generalizations, why a certificate should be granted. If no sufficient memorandum has been filed by the time set by the clerk, the certificate may be denied without further consideration.

The effect of a denial is to terminate the appeal. (c) Partial Denial by District Court. (1) If the district court grants a certificate of appealability as to one or more issues, the petitioner’s appeal shall go forward only as to the issue or issues for which the district court granted the certificate. See Grant-Chase v. Commissioner, 145 F.3d 431 (1st Cir.

1998). (2) If the petitioner wants appellate review of an issue or issues as to which the district court has denied a certificate of appealability, petitioner must apply promptly, within the time set by the clerk of the court of appeals, to the court of appeals for an expanded certificate of appealability. The request for an expanded certificate of appealability: (A) must be explicit as to the additional issues the petitioner wishes the court to consider and (B) should be accompanied by a copy of the district court order and a memorandum giving specific and substantial reasons, and not mere generalizations, why an expanded certificate of appealability should be granted. If the petitioner fails to apply for an expanded certificate of appealability within the time designated by the clerk, the appeal will proceed only with respect to the issues on which the district court has granted a certificate; this court will not treat an inexplicit notice of appeal, without more, as a request for a certificate of appealability with respect to issues on which the district court has denied a certificate.

(d) Grant in Full by District Court. If the district court grants a certificate of appealability on 39 all issues, the petitioner's appeal shall go forward. See Grant-Chase v. Commissioner, 145 F.3d 431 (1st Cir. 1998).