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What to do if you lose at the Board of Immigration Appeals

 

Question: I am so sad. I lost at the Immigration Court and then I lost at the Board of Immigration Appeals. Is there anywhere else to go and anything else I can do to try to stay here in the U.S.?

 

Answer: Yes. You are eligible to file a Petition for Review to the Circuit Court of Appeals.  Petitions for review must be filed and received by the court no later than 30 days after
the date of the decision of the Board of Immigration Appeals (BIA) or the U.S.
Immigration and Customs Enforcement (ICE). This deadline is jurisdictiona.  The 30-day deadline for filing a petition for review is not extended either by filing a motion to reopen or reconsider or by the grant or extension of voluntary departure. Separate petitions for review must be filed for each BIA decision, including issues arising from the denial of a motion to reopen or reconsider.


ICE can deport an individual before the 30-day deadline to file a petition for review
Filing a petition for review does not stay the individual’s removal from the country; Instead, a separate request for a stay must be filed with the court. Filing a petition for review terminates the voluntary departure order, with one exception.  A petition for review may be litigated even if the individual has been removed. However, you probably want to stay here, so try to get the Motion to Stay promptly filed.

 

Question: That’s good to hear. However, what exactly is a ‘petition for review’?

 

Answer: 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).

 

Question: So what can you challenge in the Petition for Review?

 

Answer: A challenge to a BIA or ICE decision may involve legal, constitutional, factual, and/or
discretionary claims. In general, (1) legal claims assert that BIA/ICE erroneously applied or
interpreted the law (e.g., the INA or the regulations); (2) constitutional challenges assert that
BIA/ICE violated a constitutional right (e.g., due process or equal protection); (3) factual claims
assert that certain findings of fact made by BIA/ICE were erroneous; and (4) discretionary claims assert BIA/ICE abused its discretion by the manner in which it reached its conclusion.

 

Keep in mind that 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.

 

It is quite complex to properly do a Petition for Review, so be sure that you get a qualified immigration attorney to get it filed for you.

Court Says Determining Whether Petitioner’s Evidence Meets Good Faith Marriage Standard Is Subject to De Novo Review

The Fourth Circuit granted the petition for review and remanded, holding that while the BIA properly reviewed the IJ’s credibility determination and findings of fact for clear error only, it should have reviewed de novo the IJ’s ultimate legal judgment that the undisputed facts and credited evidence did not meet the good faith marriage standard of INA §216(c)(4)(B).

7th Circuit Rules in favor of asylum applicant for forced sterilization

The Seventh Circuit granted the petition for review, holding that the Immigration Judge (IJ) misunderstood the petitioner’s testimony about the nature of the procedure his wife ultimately received; namely, the implantation into her arm of a contraceptive device. Further, the court found that the IJ erred by concluding, alternatively, that the petitioner could not show past persecution because he resisted only his wife’s forced contraceptive implant, as opposed to a forced abortion or sterilization.

Think the Circuit Court has no Jurisdiction to hear the case? Think again.

The Ninth Circuit held that the statutory criminal bar to judicial review, INA §242(a)(2)(C), does not strip the court of jurisdiction to review the denial of a procedural motion, such as a motion for a continuance, that rests on a ground independent of the conviction that triggered the bar. The court denied the petition for review, however, because it found that the Immigration Judge did not abuse his discretion in denying the petitioner’s motion to continue.

Another win for our Law Office regarding appealing and Petition for Review

Green card application granted for client who is married to a US citizen but had a deportation order from 1995.  Client had two motions to reopen denied by the Immigration Court and his appeal was denied by the BIA.  However, once at the 9th Circuit Court of Appeal, the Department of Homeland Security agreed remand and terminate his case so that he could apply for adjustment of status with USCIS.  20 years later, he is now a lawful permanent resident of the United States.

Another win for the Law Offices of Brian Lerner winning at 9th Circuit Court of Appeals

Client’s case was denied by the Immigration Judge and the Board of Immigration Appeals and prior to retaining our office.  Once retained, we filed an appeal with the 9th Circuit and were able to have her case administratively closed so that she could apply for her green card based on her marriage to a US citizen.

 

Court Reverses Denial of CAT Relief Based on Internal Relocation Regulations

The Ninth Circuit issued an en banc decision that overruled previous decisions to the extent that they conflicted with the plain text reading of the regulations governing internal relocation and deferral of removal under CAT. The court held that neither the petitioner nor the government bears the burden of proof as to internal relocation; rather, such evidence, if relevant, must be considered in assessing whether it is more likely than not that the petitioner would be tortured if removed.

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