In some cases, the only way to review an agencys immigration decision is to seek review by filing a Petition for Review with the Circuit Court of Appeals with jurisdiction over your state. The Circuit Court would review the decision and either deny, grant, or mandate the case the agency that issued the decision. This would be a great way to review a Board of Immigration Appeals decision in your immigration case if you believe such a decision is wrong.
What Cases Can the Circuit Court Review in the Immigration Context?
A Circuit Court may review, in the immigration law context, decisions from the Board of Immigration Appeals regarding removal proceedings, a denial of a motion to reopen or a motion to reconsider before the Board, and the denial of an asylum only proceeding. The Circuit Court of Appeals also has jurisdiction to review a decision for expedited removal by an Immigration and Customs Enforcement agent under INA §241(a)(5) or INA §238(b).
How Long do I have to File a Petition for Review?
Under INA §242(b)(1) you have 30 days to file the initial Petition for Review with the Circuit Court of Appeals. This timeframe is jurisdictional, which means that if you miss it, you will lose unless there is an exception.
Would the Court Automatically Stay my Removal when I File a Petition to Review?
The Court of Appeals would not automatically stay your Removal Order, and you must file a Stay of Removal with the Circuit Court of Appeals. To prevail on such request, the Petitioner must show that he or she will ultimately prevail in the case for such stay to be issued. You may want to think about filing the stay, because the Service may remove you before the Circuit Court of Appeals rules on the Stay of Removal.
Does the Circuit Court of Appeals Review All Cases?
The Circuit Court of Appeals jurisdiction is limited by statute. As such, Congress has limited its jurisdiction and barred it from reviewing certain cases. The Circuit Court of Appeals is barred from reviewing the following cases:
- Discretionary decision: INA §242(a)(2)(B) prohibits review of discretionary decisions committed to Agency discretion. Decisions including waivers of removal under §§ 212(h) and 212(i), cancellation of removal, voluntary departure, and adjustment of status, and other decisions or action the authority for which is specified in Title II of the INA are discretionary.
- Criminal offenses: INA §242(a)(2)(C) prohibits review of decisions regarding criminal immigrants. However, the Court has jurisdiction to review whether an immigrant is a non-citizen who is deportable because of a disqualifying offense.
What Happens After the Court Enters Its Decision?
If the Circuit Court of Appeals grants your Petition for Review, then the decision below would be vacated and the case would be remanded to the Agency for further proceedings. If the Court does not grant your Petition for Review, you may appeal the case to the Supreme Court, ask for reconsideration by the Court, or ask for an en banc decision by the full Court.
If you are thinking about appealing a Board of Immigration Appeals decision in your case, please consider us by contacting us using the form below.