Appealing your order of removal in Federal Court
Not so fast! If you lose your case before the Board of Immigration Appeals (BIA), your only remaining recourse is to file a petition for review in the federal court of appeals. Petitions for review must be filed in the federal court of appeals in the circuit in which your case was tried before the Immigration Judge. For example, if an Immigration Judge heard your case in New York City, the United States Court of Appeals for the Second Circuit would have jurisdiction, even if you now live in California. Petitions for review of BIA decisions must be filed within 30 days of the issuance of the BIA decision. The petition for review must be received by the clerk’s office on the thirtieth day, not just mailed by the thirtieth day. The opposing counsel is the Office of Immigration Litigation (OIL) and they too must be served. Circuit courts lack authority to consider a late-filed petition for review, so it is imperative that you meet the deadline if you want the court to consider your case. The filing fee for a petition for review is now $450.00 and is subject to change.
The thirty-day deadline for filing a petition for review is not extended when you a file a motion to reopen or reconsider with the BIA. If you file a petition for review after the BIA denies the motion to reopen or reconsider, the federal court may only consider the decision on the motion to reopen or reconsider. To reserve review by the federal court, you may file a petition for review within thirty days of the BIA’s decision and a motion to reopen or reconsider with the BIA.
When a federal appeal is filed, unlike appeals before the BIA, there is no automatic stay. You can be deported, unless you seek a stay of removal while the appeal is pending. The Deportation Branch of Immigration and Customs Enforcement (ICE) can actually deport an individual as soon as the BIA issues its order and sometimes ICE likes to move quickly. ICE does not have to wait for the 30-day period for filing a petition for review to run. The biggest risk of deportation after the BIA denies your case is if you are in ICE custody and you do not immediately file a petition for review and a motion to stay your removal. If you are not in ICE custody look out for what is called a “bag-and-baggage” letter requesting that you report to ICE for deportation.
If the Immigration Judge has granted you voluntary departure and you have appealed the case before the BIA, the voluntary departure period generally begins to run from the date that the BIA issues its decision. Filing an appeal with the federal court does not stay the voluntary departure period. To preserve voluntary departure, you must also file a motion to stay voluntary departure or you may lose the opportunity to leave and may be ineligible for any type of relief for ten years.
According to recent article in the New York Times, there has been a surge of immigration appeals in federal courts since 2002 when the BIA began to “streamline” its decisions. The Attorney General at that time reduced the number of judges on the BIA to 11 from 23 and encouraged the BIA to issue one-line decisions. Within the last few years, there has been a lot of criticism that the BIA has stopped reviewing immigration cases in a meaningful way. For this reason, more and more cases are being appealed to the federal court.