So, the Board of Immigration Appeals has denied (dismissed) your appeal? That is not the end of the road. You have a right to file another appeal (known as a Petition for Review), at United States Court of Appeal, sometimes referred to as the Federal Circuit Court that has jurisdiction in your area. You can file a Petition for Review of the Board’s Decision or Certain other agency decisions and potentially get the decisions overturned (vacated) and remanded (sent back to the immigration courts).
A petition for review is the document filed by, or on behalf of, an individual seeking review of an agency decision in a circuit court of appeals. In the immigration context, a petition for review is filed to obtain federal court review of a removal, deportation or exclusion decision issued by the BIA. In addition, a petition for review may be filed to obtain review of a removal order issued by ICE under a few very limited specific provisions of the Immigration and Nationality Act (INA).
The courts of appeals have exclusive jurisdiction to review “a final order of removal,” except an expedited removal order entered under INA § 235(b)(1). 5 INA § 242(a)(1). The following are examples of the types of decisions that may be reviewed through a petition for review:
Board of Immigration Appeals decisions-
1. Final removal orders (including the finding of removability and the denial of any applications for relief);
2. Denial of a motion to reconsider or a motion to reopen; or 3. Denial of asylum in asylum only proceedings.
4. Certain orders of removal issued by ICE under: (INA §241(a)(5); or INA §238(b)).
A good appeals attorney will carefully scrutinize the entire record of proceedings created by immigration agencies and prepare a strong challenge at the court of appeals. A challenge to a BIA or ICE decision may involve legal, constitutional, factual, and/or discretionary claims. In general, legal claims may assert that:
1. BIA/ICE erroneously applied or interpreted the law (e.g., the INA or the regulations); 2. The BIA/ICE violated a constitutional right (e.g., due process or equal protection);
3. Certain findings of fact made by BIA/ICE were erroneous; and 4. The BIA/ICE abused its discretion by the manner in which it reached its conclusion.
A petition for review “must be filed not later than thirty days after the date of the final order” of removal or the final order of exclusion or deportation. See INA §242(b)(1) (removal orders). The 30-day deadline for filing a petition for review of the underlying decision is not extended by the filing of a motion to reopen or reconsider, nor is it extended by the grant or extension of voluntary departure. To obtain review of issues arising from a BIA decision and issues arising from the denial of a motion to reopen or reconsider, separate petitions for review of each BIA decision must be filed. If separate petitions are not filed, the court’s review may be limited to the issues arising from the BIA decision for which review is sought.
For example, if a petition for review of the BIA’s decision denying a motion to reopen or reconsider has been filed, but a petition for review of the BIA decision underlying the motion has not been filed, the court may not review issues arising from the underlying BIA decision. The deadline for filing a petition for review is “mandatory and jurisdictional” and is “not subject to equitable tolling.” Stone v. INS, 514 U.S. 386, 405 (1995).
Because the 30-day deadline is jurisdictional, circuit courts lack authority to consider late-filed petitions for review. Consequently, if in doubt about whether the court of appeals has jurisdiction, it may be prudent to timely file the petition for review to preserve the individual’s right to seek review.
If you have lost your case at the Board of Immigration Appeals, do not delay. Contact us for free and we may be able to file your petition for review and preserve your rights. Do not just give up on your rights.