Petition for Review

Immigration Appeals Lawyer

A petition for review is filed by a non-citizen appealing an agency decision in a U.S. Court of Appeals. In the immigration context, a petition for review is filed to seek review by a federal court of appeals of a removal, deportation or exclusion order issued by the Board of Immigration Appeals (“BIA”).

In addition, a petition for review may be filed to appeal a removal order issued by ICE under a few very limited specific provisions of the Immigration and Nationality Act (INA), one of them being removability under the Visa Waiver Program.

INA § 242, as enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) and amended by the REAL ID Act, contains the jurisdictional basis for petitions for review and sets out rules and procedures governing petitions for review. The REAL ID act invalidated statutory and non-statutory Habeas Corpus jurisdiction over orders of removal, deportation and exclusion. The act made a petition for review filed with an appropriate Court of Appeals the one and only step for judicial review of such orders.

In addition, the Federal Rules of Appellate Procedure (FRAP) and local circuit court rules provide petitioners with additional court procedures and requirements.

The courts of appeals have exclusive jurisdiction to review “a final order of removal,” except an expedited removal order entered pursuant to INA § 235(b)(1). See INA § 242(a)(1).

Can I file a Petition for Review?

The following BIA decisions may be reviewed through a petition for review:

  • A final removal order (including the finding of removability and the denial of any applications for relief);
  • A denial of a motion to reconsider or a motion to reopen; or
  • A denial of an application for asylum in asylum-only proceedings.

INA §242(a)(2)(B) contains two sub-provisions which generally prohibit review of discretionary decisions, such as waivers of removal under §§ 212(h) and 212(i), cancellation of removal, voluntary departure, and adjustment of status.

Moreover, INA §242(a)(2)(C) specifically prohibits review of cases involving criminal offenses under INA § 212(a)(2) or specific subsections of INA § 237(a)(2). However, a court of appeals maintains jurisdiction to review whether the individual to be removed

  1. is actually a non-citizen,
  2. is removable under U.S. immigration laws,
  3. and the removal is based on a statutory criminal offense.

Therefore, the non-citizen must actually be removable on a basis specified in the relevant section of the statute. For example, if the alien is not charged with having committed an aggravated felony, and he or she is later found removable on that ground, the jurisdictional bar does not apply.

Moreover, a U.S. Court of Appeals has jurisdiction to review constitutional and legal questions in cases where review otherwise is barred by INA § 242(a)(2)(C). For instance, the court of appeals has jurisdiction to determine whether an alien subject to the aggravated felony grounds of removal is entitled to apply for the old 212(c) waiver, if there is no statutory counterpart in the grounds of inadmissibility.

How to file a Petition for Review

Review of an agency order is initiated by filing a petition for review with the clerk of a Court of Appeals authorized to review the agency order.

A party seeking review of a BIA order must file a petition for review with the Clerk’s Office within 30 days of the date of the order being challenged. See 8 U.S.C. § 1252(b)(1). This usually corresponds to the date stamped on the BIA decision.

According to the Federal Rules of Appellate Procedure, petitioner's brief must contain:

  • A table of contents;
  • A table of authority;
  • A statement of subject matter and appellate jurisdiction;
  • A statement of the issues presented;
  • A concise statement of the case that (a) includes at the beginning of the section (1) a description of the nature of the case and the relevant procedural history, (2) identification of the judge or agency official who rendered the decision being appealed, (3) the disposition below, and (4) citation to the decision, and (b) sets out the facts relevant to the issues submitted for review, with references to the record;
  • A summary of argument;
  • The petitioner’s argument;
  • A short conclusion stating the relief sought; and
  • A Certificate of Compliance when a principal brief exceeds 30 pages or a reply brief exceeds 15 pages.

Stay of Removal 8 C.F.R. 241.6

Petitions for review are not granted very often. A petition for review will be granted only when there are special and important reasons. If the Petition for review is granted, your case will go back to the BIA and then most likely to the immigration judge for further processing.

More importantly, the filing of a petition for review does not prevent ICE from removing you from the United States, unless you obtained a stay of removal. Unlike with BIA appeals, a petition for review does not automatically keep you in the U.S. while your appeal is pending, so it is imperative for counsel to seek a “Motion for a stay of removal” while the appeal is pending.

You can file a stay of removal under the provisions of 8 C.F.R. 241.6, along with the petition for review in order to stay in the U.S. during the appeal. A separate application must be filed for each family member seeking a stay of removal. The Motion should explain why deportation will cause you or your family harm if you are deported before your appeal is decided. If you win your case after you have been removed, ICE will arrange for your return to the United States.

Retain an experienced Immigration Appeals Attorney

A petition for review is often the last hope for an immigrant to remain in the United States. Petitions for Review require an attorney to draft a very comprehensive brief and satisfy rigid documentary and formatting requirements.

As a criminal immigration lawyer in New York, I have experience with deportation cases, including immigration appeals matters. I filed numerous appeals with the Board of Immigration Appeals and the U.S. Court of Appeals for the Second and Third Circuit.

If you lost your deportation case and you want to file an appeal to the BIA or a petition for review, please contact my office as soon as possible for a free initial consultation.

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