Opinion and Notice Related to all Immigration Petitions for Review Pending in the Second Circuit

Opinion and Notice Related to all Immigration Petitions for Review Pending in the Second Circuit

October 16, 2012 - "Today the United States Court of Appeals for the Second Circuit issued an opinion entitled In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit.  View the opinion.  The opinion describes a procedure that the Court will implement in pending immigration cases to enable any Petitioner and the Government to determine whether remand to the Board of Immigration Appeals is warranted. This notice explains how the Clerk’s Office will implement the procedure.

On October 23, 2012, the Court will begin to issue, on a rolling basis, in all immigration cases in which a certified record on appeal has been filed, an order tolling the proceedings for a period of 90 days. At any time during the tolling period, a petitioner may move under FRAP 42(b) to dismiss the petition and remand the case to the Board of Immigration Appeals. The Court’s remand order will include provisions for prompt restoration of the case to the Court’s jurisdiction according to terms set out in the Court’s opinion.

Or during the 90-day tolling period, any party may end the tolling period by filing a letter to that effect with service upon the adversary. Three business days after the Clerk of Court receives such a letter, the time for the next scheduled filing or event will begin to run.

If, by the close of business on the last day of the 90-day tolling period (or the next business day thereafter if the last day occurs on a weekend or holiday), neither party has requested that the tolling period end, the time for the next required filing in the case will begin to run immediately.

For example, if in a case the tolling order issues on November 6, 2012, and in the absence of the tolling period, the petitioner’s brief would have been due 15 days later on November 21, 2012, and if the 90-day tolling period ends on February 4, 2013, the petitioner’s brief is due 15 days later on February 19, 2013.

Any motion for an extension of time to file will be disfavored and subject to the extraordinary circumstances standard of Local Rule 27.1(f)(1).

If a tolling order has not issued before the deadline for a party to file a required document, such as a brief or a scheduling notification, the party obligated to act must file as previously required. The Court will not grant a motion to extend the time to file because the party expects a tolling order to issue.

The Court will notify the parties whenever a tolling order is entered and whenever a tolling period has ended.

If a case was submitted to a panel for decision at least 90 days prior to today, the panel may issue a decision at any time. Other cases submitted to a panel will not be decided until the end of the tolling period unless a party requests a decision. Cases that are awaiting placement on a calendar will not be scheduled for hearing or submission during the tolling period unless a party requests such placement." - CA2 website