Criminal Defense of Immigrants
§ 15.35 G. Appeal to Board of Immigration Appeals
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After a decision is issued by the Immigration Judge, the “losing” party is given the choice whether to waiver or reserve appeal. If appeal is waived, the decision becomes final. The waive must be knowing and intelligent. If appeal is reserved, the party has 30 days from the date the oral decision is read, or the written decision is mailed, in which to file a notice of appeal to the Board of Immigration Appeals (“BIA”). The requirements for a notice to appeal include a description of the factual and legal basis for the appeal. The record of proceedings of the immigration judge will be forwarded to the BIA, and the immigration proceedings transcribed. Briefing schedules are controlled by 8 C.F.R. § 1003(c). Counsel may refer to a practice manual for more information on procedural and filing requirements.
An appeal to the BIA may take six months to a year or more. Appeals in cases in which the noncitizen is in immigration detention are given priority. The BIA is plagued with a huge backlog and has significantly revised its case-review process. Known as “streamlining,” under this new process, decisions that formerly went before a three-judge panel are now reviewed by a single judge, and the decision may merely sustain the findings of the immigration judge in a one-sentence decision. Cases may be transferred from a single judge to a three-judge panel of judges in specified circumstances, such as when the case presents the need to resolve a split among immigration judges or to publish a precedential decision. There have been a number of cases successfully challenging the new streamlined procedures as violating due process.
The BIA reviews all legal issues de novo, including discretionary decisions, but will not generally engage in fact-finding and is not supposed to dispute the facts found by the immigration judge, unless found to be clearly erroneous. Oral argument is possible,  but rare.
The BIA may designate a decision as precedent, meaning that the decision is binding on all immigration judges nationwide unless the circuit court in which the IJ sits has addressed the same issue and decided it differently than the BIA.
After a decision is issued by the BIA, the parties can either accept the decision as final, the BIA can refer the case to the Attorney General for review, or one of the parties may file an appeal (called a petition for review) in the federal circuit court which has jurisdiction over the locale where the immigration judge sits. A motion to reopen or reconsider may also be filed before the BIA.
The BIA will often decide an issue, then remand the case to the IJ for further proceedings. Generally, upon remand any issue may be brought before the IJ unless the BIA expressly limits the issues to be considered by the IJ. The circuit courts are split on whether (and when) the BIA has jurisdiction to order removal, or whether the BIA must remand a case back to the Immigration Judge to order removal.
 8 C.F.R. § 1003.39.
 See, e.g., Matter of Rodriguez-Diaz, 20 I. & N. Dec. 1320 (BIA 2000) (unrepresented respondent must understand that waiver makes appeal impossible); Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005); United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1988), cert. denied, 525 U.S. 849 (1998) (waiver must be “considered and intelligent”); Matter of Patino, 23 I. & N. Dec. 74 (BIA 2001).
 8 C.F.R. § § 1003.38(b), 1240.15. See Matter of Liadov, 23 I. & N. Dec. 990 (BIA Sept. 12, 2006) (BIA lacks authority to extend 30-day time limit for filing appeal); Huerta v. Gonzales, 443 F.3d 753 (10th Cir. Apr. 11, 2006) (thirty-day deadline to appeal IJ decision to the BIA is not jurisdictional; if BIA grants a late appeal neither the BIA nor a reviewing court of appeals is barred by an untimely filing of a notice to appeal to the BIA).
 8 C.F.R. § 1003.3(a)-(b); see Esponda v. U.S. Att’y Gen., 453 F.3d 1319 (11th Cir. Jun. 28, 2006) (BIA abused its discretion in dismissing appeal based on failure to submit brief without first determining whether the issues were adequately stated in the notice to appeal; whether BIA was correct in summarily dismissing an appeal where no brief was filed is reviewed for abuse of discretion).
 8 C.F.R. § 1003.5.
 http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm (last visited 12/4/06).
 See, e.g., Meghani v. INS, 236 F.3d 843 (7th Cir. 1993) (7 years to issue decision).
 8 C.F.R. § 1003.1(e).
 8 C.F.R. § 1003.1(e)(4).
 8 C.F.R. § 1003.1(e)(6); Purveegiin v. Gonzales, 448 F.3d 684 (3d Cir. Jun. 1, 2006) (court has jurisdiction to review question of whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA panel). But see Guyadin v. Gonzales, 449 F.3d 465 (2d Cir. May 30, 2006) (court lacks jurisdiction to review question of whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA panel).
 See, e.g., Denko v. INS, 351 F.3d 717 (6th Cir. Dec. 8, 2003); Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir. 2003); Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003).
 8 C.F.R. § 1003.1(d)(3).
 8 C.F.R. § 1003.1(e)(7).
 8 C.F.R. § 1003.1(g). Matter of ELH, 23 I. & N. Dec. 814 (BIA 2005) (BIA precedent decision remains controlling unless the Attorney General, Congress, or a federal court modifies or overrules a decision). See also 8 C.F.R. § 1003.1(d)(7) (finality).
 8 C.F.R. § 1003.1(h).
 See § 15.36, infra.
 8 C.F.R. § 1003.2.
 See, e.g., Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978) (once there is a remand that is not limited or qualified, the immigration judge may consider other and further relief).
 See Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978).
 See Guevara v. Gonzales, 472 F.3d 972 (7th Cir. Jan. 8, 2007) (BIA has power to order removal in first instance); Lazo v. Gonzales, 462 F.3d 53 (2d Cir. Sept. 1, 2006) (where IJ found removability, but granted relief, then BIA reverses grant of relief, BIA has jurisdiction to order noncitizen deported without remand to IJ), following Solano-Chicas v. Gonzales, 440 F.3d 1050, 1053-54 (8th Cir. 2006); Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154, 1156 (11th Cir. 2003); Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), disagrees with Molina-Camacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir. 2004). See also James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (while the BIA has jurisdiction to order noncitizen removed when IJ found removability, but granted relief, and the BIA then reverses the grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially found noncitizen was not removable, and the BIA reverses; in such case, BIA must remand to IJ), distinguishing Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), following Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-881 (9th Cir. 2003).
JUDICIAL REVIEW " BIA " CASES ARISING FROM OTHER CIRCUITS
Matter of Singh, 25 I. & N. Dec. 670 (BIA 2012) (refusing to follow Ninth Circuit law regarding a California criminal offense where the removal case arose in the Fourth Circuit).
STATUTORY INTERPRETATION - BIA DUTY TO FILL IN AMBIGUITIES IN CONTRESSIONAL INTENT
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("If that language constitutes a plain expression of congressional intent, it must be given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 842-43. When Congress's intent is not plainly expressed, however, it is our duty to resolve any ambiguities and fill any statutory gaps in a reasonable manner, at least insofar as they pertain to portions of the statute that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).").
JUDICIAL REVIEW - BIA APPEAL - BIA IS NOT AUTHORIZED TO FIND FACTS IN COURSE OF DECIDING AN APPEAL
Al Mutarreb v. Holder, 561 F.3d 1023 (9th Cir. Apr. 6, 2009) (BIA is not authorized to find facts in the course of deciding appeals), citing 8 C.F.R. 1003.1(d)(3)(i), (iv); Matter of Adamiak, 23 I. & N. Dec. 878, 880 (BIA 2006).
JUDICIAL REVIEW " BOARD OF IMMIGRATION APPEALS " UNLAWFUL REMOVAL DOES NOT DEPRIVE BIA OF JURISDICTION OVER APPEAL FROM REMOVAL ORDER
Matter of Diaz-Garcia, 25 I&N Dec. 794 (BIA 2012) (unlawful removal of an alien during the pendency of a direct appeal from a deportation or removal order in violation of 8 C.F.R. 1003.6(a) does not deprive the Board of Immigration Appeals of jurisdiction to review the appeal).
JUDICIAL REVIEW - WAIVER OF APPEAL
Ali v. Mukasey, 529 F.3d 478 (2d Cir. June 18, 2008) (counsels acknowledgement on the record that IJs decision was "final" signified that counsel had waived appeal to the BIA).
JUDICIAL REVIEW - BIA APPEAL - ADMINISTRATIVE NOTICE
Burger v. Gonzales, __ F.3d __, 2007 WL 2331944 (2d Cir. Aug. 17, 2007) ("This Court recently held that if the Board of Immigration Appeals ("BIA") intends to take administrative notice of potentially dispositive facts, it must warn a petitioner and provide the petitioner with an opportunity to respond before it denies a motion to reopen on the basis of those facts. See Chhetry v. U.S. Dept of Justice, 490 F.3d 196, 201 (2d Cir. 2007) (per curiam). The Court declined to resolve the related question whether due process requires this same result before the BIA enters a final order of removal on the basis of administratively noticed facts. We now address this question and hold that it does.")
BIA - APPEAL - UNTIMELY APPEALS
Khan v. U.S. Dept. of Justice, __ F.3d __, 2007 WL 1976151 (2d Cir. Jul. 10, 2007) (reaffirming that extraordinary or unique circumstances may excuse the untimely filing of an appeal with the BIA).
JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - ABUSE OF DISCRETION
Nwogu v. Gonzales, 491 F.3d 80, ___, (2d Cir. Jun. 19, 2007) ("An abuse of discretion may be found where the BIA's decision 'provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.'"), quoting Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (citations omitted).
OVERVIEW " BIA APPEAL " BIA MUST COMPLY WITH ITS OWN REGULATIONS REGARDLESS OF PREJUDICE
Leslie v. Attorney General, 611 F.3d 171, 173 (3rd Cir. Jul. 8, 2010) (Immigration Judge's (IJ) failure to advise [petitioner] of the availability of free legal services, as required under 8 C.F.R. 1240.10(a)(2)-(3), entitles him to a new removal hearing under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); showing of prejudice is unnecessary when a regulation implicates fundamental statutory or constitutional rights).
JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - CONSISTENCY IN DECISIONS
The Fourth Circuit has commented unfavorably on the BIA's inconsistency in unpublished board decisions:
Although not dispositive in our consideration of this petition, we note that courts typically look askance at an agency's unexplained deviation from a prior decision, even when the prior decision is unpublished. See, e. g., Baltimore Gas & Elec. Co. v. Heintz, 760 F.2d 1408, 1418-19 (4th Cir. 1985); Davila-Bardales v. INS, 27 F.3d 1, 6 (1st Cir. 1994). Indeed, when an agency fails to present a reasoned basis for departing from a previous decision, "it may be deemed to have acted arbitrarily." Baltimore Gas, 760 F.2d at 1419. Here, the BIA merely explained that its prior decision "is not . . . precedent[.]"
Perez-Vargas v. Gonzales, 478 F.3d 191, ___ n.3 (4th Cir. 2007).
Other courts also have begun to consider inconsistencies in the Board's unpublished decisions. E.g., Shardar v. Attorney General, 503 F.3d 308, 315 (3d Cir. 2007); Cruz v. Attorney General, 452 F.3d 240, 250 (3d Cir. 2006) ("[A]gencies should not move away from their previous rulings without cogent explanation"); Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996) ("[A]dministrative agencies must apply the same basic rules to all similarly situated supplicants"); Merchant v. U.S. Attorney General, 461 F.3d 1375, 1379 n.7 (11th Cir. 2006) (noting inconsistencies in treatment in unpublished BIA decisions); Zhang v. Gonzales, 452 F.3d 167, 174 (2d Cir. 2006) ("A rational system of law would seem to require consistent treatment of such identical claims, or, at the very least, an explanation from the BIA for their seemingly inconsistent treatment"); Davila-Bardales v. INS, 27 F.3d 1, 5-6 (1st Cir. 1994).
OVERVIEW " REMOVAL PROCEEDINGS " WAIVER OF APPEAL
Martinez v. Holder, __ F.3d __ (5th Cir. Oct. 15, 2014) (respondent, having been given notice of right of appeal by immigration judge in group setting, knowingly and intelligently waived his right to appeal).
OVERVIEW " REMOVAL PROCEEDINGS " APPEAL " WAIVER OF APPEAL BY ACCEPTING VOLUNTARY DEPARTURE
Kohwarian v. Holder, 635 F.3d 174 (5th Cir. Mar. 4, 2011) (respondent knowingly and intentionally waived right to appeal in accepting order of voluntary departure).
BIA APPEAL " POST-DEPARTURE BAR
Rodriguez-Barajas v. Holder, 624 F.3d 678 (5th Cir. Oct. 19, 2010) ([8 C.F.R.] 1003.4 unambiguously does not bar the BIA's jurisdiction over the appeal of an alien who departs, whether voluntarily or involuntarily, after the BIA has decided his appeal but while his habeas petition is pending.).
REMOVAL PROCEEDINGS - BOARD OF IMMIGRATION APPEALS - REMAND FROM COURT OF APPEALS - WHETHER BIA ACTION EXCEEDED SCOPE OF REMAND ORDER
Saqr v. Holder, 580 F.3d 414 (6th Cir. Sept. 9, 2009) (BIA did not improperly exceed the scope of the remand order from the court of appeal by considering issues other than the one for which remand was granted: "In this circuit, an agency has inherent authority to reconsider a prior decision, provided that such reconsideration occurs within a reasonable time after the first decision. . . . However, where a court has considered the merits and remanded on certain issues, an agency or lower court is not permitted to review anew those issues already addressed by the reviewing court if they are not part of the remand because issues addressed on the merits and not within the scope of remand become the law of the case. See United States v. Campbell, 168 F.3d 263, 265 (6th Cir.1999); United States v. Moore, 131 F.3d 595, 598 (6th Cir.1997). [Para.] Here, this Court granted remand on a particular issue, which it identified in its June 28, 2006 remand order. However, at the time of remand, this Court had not considered the merits of any of the issues then before it. Therefore, the BIA properly clarified its position on certain issues.).
APPEAL TO BIA - LATE APPEAL
Salazar v. Mukasey, __ F.3d __, 2008 WL 245757 (6th Cir. Jan. 31, 2008) (BIA abused its discretion by refusing to consider whether the circumstances presented by petitioner were "extraordinary or unique" as a basis for extending the deadline for notice of appeal).
Lower Courts of Sixth Circuit
BIA PRECEDENT DECISIONS - RETROACTIVE APPLICATION OF NEWLY ANNOUNCED LEGAL PRINCIPLES
Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. Mar. 3, 2008) ("Negrete contends that, even if we accept the Board's interpretation of 101(a)(43)(E)(ii) in Vasquez-Muniz II, the application of that interpretation to his case had an impermissible retroactive effect and therefore violated his due process rights. Negrete asserts that such a change in interpretation must take place through notice-and-comment rulemaking rather than through adjudication. We find Negrete's retroactivity argument unpersuasive. An agency is not precluded from announcing new principles in an adjudicative proceeding rather than through notice-and-comment rule-making. SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency."); see also NLRB v. Bell Aerospace Co. Div. of Textron Inc., 416 U.S. 267, 294-95, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). "An administrative agency may not apply a new rule retroactively when to do so would unduly intrude upon reasonable reliance interests. " State of Ill. v. Bowen, 786 F.2d 288, 292 (7th Cir.1986) (quoting Heckler v. Cmty. Health Servs., Inc., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984)). Nevertheless, Negrete has not shown that he had any "reasonable reliance interests" that were intruded upon by the Board's change of course. . . .").
JUDICIAL REVIEW " PETITION FOR REVIEW " BIA OVERLOOKED MATERIAL EVIDENCE AND IMPROPERLY RELIED ON A REPORT
Lam v. Holder, 698 F.3d 529, *531 (7th Cir. Oct. 16, 2012) (granting petition for review of BIA decision affirming IJs denial of a waiver of inadmissibility, under INA 212(h)(1)(B), 8 U.S .C. 1182(h)(1)(B), for insufficient hardship: Because we find that the IJ and BIA overlooked material evidence related to Lam's wife's depression and improperly relied on a report to determine that Lam failed to show rehabilitation, we grant Lam's petition for review, vacate his removal order, and remand to the agency for reconsideration.).
BIA APPEAL " BIA REVIEW OF FACTUAL FINDINGS
Waldron v. Holder, 688 F.3d 354 (8th Cir. Aug. 6, 2012) (The BIA has the authority to conduct de novo review of questions of law, discretion, and judgment. 8 C.F.R. 1003.1(d)(3)(ii). However, [f]acts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous. 8 C.F.R. 1003.1(d)(3)(i). The IJ's findings of fact may not be overturned simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder. In re R"S"H, 23 I. & N. Dec. 629, 637 (BIA 2003) (citation and quotation marks omitted). [T]he BIA does not have authority to engage in factfinding, except to take administrative notice of commonly known facts. Nabulwala v. Gonzales, 481 F.3d 1115, 1118 (8th Cir. 2007) (citing 8 C.F.R. 1003.1(d)(3)(iv)).).
OVERVIEW - BOARD OF IMMIGRATION APPEALS - BIA MAY NOT ENGAGE IN FACTFINDING TO SUPPLY MISSING FACTS
Nabulwala v. Gonzales, ___ F.3d ___, 2007 U.S. App. LEXIS 6449 (8th Cir. March 21, 2007) ("[T]he BIA may not find facts, as it attempted to do in this case. ... The BIA's attempt to fill the gaps by finding facts is impermissible."). http://bibdaily.com/pdfs/nabulwala.pdf
REMOVAL PROCEEDINGS " APPEAL " WAIVER OF APPEAL " NOT CONSIDERED AND INTELLIGENT SINCE IT WAS BASED ON IMMIGRATION JUDGES INCORRECT ADVICE
Garcia v. Lynch, ___ F.3d ___, 2015 WL 2385402 (9th Cir. May 20, 2015) (waiver of appeal from removal order was not considered and intelligent because the decision was based upon an Immigration Judge's incorrect advice).
OVERVIEW " REMOVAL PROCEEDINGS " APPEAL TO BIA
Irigoyen-Briones v. Holder, __ F.3d __, 2011 WL 2119908 (9th Cir. May 31, 2011) (en banc) (30 day deadline for filing notice of appeal of IJ decision to the BIA is not jurisdictional; BIA has discretion to extend period in exceptional circumstances, such as where error in post-office results in late delivery of notice), vacating Irigoyen"Briones v. Holder, 608 F.3d 491 (9th Cir. 2010); Turcios v. Holder, 608 F.3d 491 (9th Cir. 2010), and disagreeing with Matter of Liadov, 23 I. & N. Dec. 990 (BIA 2006).
OVERVIEW " BIA APPEAL " BIAS DECISION WAS INCONSISTENT WITH ITS PRIOR DECISIONS
Perdomo v. Holder, 611 F.3d 662 (9th Cir. Jul. 12, 2010) (remanding case upon finding BIAs reasoning was inconsistent with own opinions).
Garcia Gomez v. Gonzales, __ F.3d __, 2007 WL 2363606 (9th Cir. Aug. 21, 2007) ("We agree with the approach taken by the Seventh Circuit addressing an identically worded BIA order, denying a motion to accept a late-filed brief. See Gutierrez- Almazan v. Gonzales, ___ F.3d ___, 2007 WL 1774027, at *2-3 (7th Cir. Jun. 21, 2007). The Seventh Circuit held that the BIAs "sparse ruling was inadequate to enable [the court of appeals] to perform any meaningful review," explaining that the BIAs decision provided "no indication that it took account of . . . [any] factors that might be relevant to the merits of the motion." Id. at *3. We are similarly "unable to determine from the BIAs conclusory statement whether it abused its discretion by refusing to accept [the Garcias] late brief." See id. We therefore remand the petition to the BIA.").
JUDICIAL REVIEW - CODES OF CONDUCT FOR IJ AND BIA
"The Executive Office for Immigration Review (EOIR) is proposing newly formulated Codes of Conduct for the immigration judges of the Office of the Chief Immigration Judge and for the Board members of the Board of Immigration Appeals. EOIR is seeking public comment on the codes before final publication. ... Comments may be submitted not later than July 30, 2007." FR, June 28, 2007. http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-3174.pdf
JUDICIAL REVIEW - BOARD OF IMMIGRATION APPEALS - ATTORNEY GENERAL HAS AUTHORITY TO RECONSIDER ANY BIA OR AG DECISION
8 C.F.R. 1003.1(h)(1)(i) (Attorney General has the authority both to direct that the BIA refer cases to him for decision and to vacate and reconsider any previous Attorney General decision); Matter of RA, 24 I. & N. Dec. 629 (A.G. 2008) (vacating stay order issued by previous Attorney General); see also 8 U.S.C. 103(g) (Attorney General shall review administrative determinations in immigration proceedings as necessary for carrying out his duties).
OVERVIEW - APPEAL TO FEDERAL COURT
The DHS apparently has access to a database called "STAYS" containing all stays of removal that are entered or lifted. By accessing this database, ICE can quickly determine when a stay has been placed or lifted. Thanks to Simon Moshenberg