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
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
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
- is actually a non-citizen,
- is removable under U.S. immigration laws,
- 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
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
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.