Criminal Defense of Immigrants
§ 15.36 H. Appeal to Federal Courts
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The Immigration and Nationality Act allows for federal review of final administrative orders before the United States Court of Appeals with territorial jurisdiction over the Immigration Judge who issued the removal order as described in 28 U.S.C. Chapter 158, “except that the court may not order the taking of additional evidence under section 2347(c) of such title.” A petition for review must be filed “not later than 30 days after the date of the final order of removal.” Failure to file a timely petition for review is a jurisdictional bar to review. Venue lies in the circuit in which the immigration court proceedings were held. A noncitizen filing a petition for review should specifically request that the circuit court order a stay of the removal order, as well as of any voluntary departure period.
 INA § 242(a), 8 U.S.C. § 1252(a).
 INA § 242(b)(1), 8 U.S.C. § 1252(b)(1).
 Kim v. Gonzales, 468 F.3d 58 (1st Cir. Nov. 16, 2006) (time limit for appealing issues decided by the BIA to federal circuit court is jurisdictional, and therefore cannot be raised upon appeal on collateral issue), following Ven v. Ashcroft, 386 F.3d 357, 359 (1st Cir. 2004).
 INA § 242(b)(2), 8 U.S.C. § 1252(b)(2).
 INA § 242(b)(3)(B), 8 U.S.C. § 1252(b)(3)(B).
 See § 15.33, supra.
JUDICIAL REVIEW - PETITION FOR REVIEW - STAY OF REMOVAL - TRADITIONAL STANDARD Nken v. Holder, 129 S.Ct. 1749 (Apr. 22, 2009) (reversing court of appeals' denial of motion to stay removal pending judicial review of a BIA ruling, where traditional stay factors, rather than the demanding standard of 8 U.S.C. 1252(f)(2), govern a Court of Appeals' authority to stay an alien's removal pending judicial review).
OVERVIEW - APPEAL - STAY OF REMOVAL
Teshome-Gebreegziabher v. Mukasey, No. 081060 545 F.3d 285 (4th Cir. Oct. 30, 2008) (Noncitizen who was ordered removed must show by clear and convincing evidence that entry or execution of the order of removal is prohibited as a matter of law to stay the removal under 8 U.S.C. 1252(f)(2)).
JUDICIAL REVIEW - PETITION FOR REVIEW - NUNC PRO TUNC AUTHORITY
Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. Jun. 4, 2007) (court of appeal's equitable nunc pro tunc authority could not be used to fix the type of error that occurred when BIA denied petitioner's initial application for a waiver of removal under former INA 212(c) based on an erroneous interpretation of statute; "the BIA, on the other hand, has a long history of employing nunc pro tunc to backdate proceedings and orders where the error was not clerical or where there was no error at all. . . . The BIAs use of nunc pro tunc . . . is based on a statutory commitment of authority to use back-dating measures where the BIA deems it appropriate."), compare with Edwards v. INS, 393 F.3d 299, 309-310 (2d Cir. 2004) (extending BIAs nunc pro tunc powers to allow appellate court to use nunc pro tunc in immigration context as well). See also, Fernandes-Pereira v. Gonzales, 417 F.3d 38 (1st Cir. 2005).
JUDICIAL REVIEW " EFFECT ON VOLUNTARY DEPARTURE
Hachem v. Holder, 656 F.3d 430 (6th Cir. Aug. 29, 2011) (automatic termination of voluntary departure under 8 C.F.R. 1240.26(i) is valid exercise of AG discretion).
JUDICIAL REVIEW - ADMINISTRATIVE CLOSURE - JUDICIAL REVIEW - ABUSE OF DISCRETION
Garza-Moreno v. Gonzales, ___ F.3d ___ (6th Cir. Jun. 5, 2007) (court of appeals has jurisdiction, despite 8 U.S.C. 1252, to review denial of an administrative closure, on abuse of discretion standard [e.g. whether decision was made "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination.").
OVERVIEW - FEDERAL APPEAL - PETITION FOR REVIEW
Randhawa v. Gonzales, 474 F.3d 918 (6th Cir. Jan. 30, 2007) (petition for review of BIA decision does not toll the time limit for filing a motion for reconsideration with the BIA). http://caselaw.lp.findlaw.com/data2/circs/6th/053694p.pdf
OVERVIEW - PETITION FOR REVIEW - EXHAUSTION - DUE PROCESS CLAIM BEFORE ADMINISTRATIVE AGENCY
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007)("[a]lthough petitioners generally do not have to exhause due process claims administratively, they must raise such claims when alleging procedural errors correctable by the BIA. See Capric v. Ashcroft, 355 F.3d 1075, 1087 (9th Cir. 2004)."). Compare, Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (Delaware conviction of unlawful sexual contact in the third degree under Del. C. 767, penalizing "sexual contact with another person," does not constitute sexual abuse of a minor because the elements of that statute do not require that the offense be committed against a minor.).
JUDICIAL REVIEW - PETITION FOR REVIEW - ESTOPPEL AGAINST GOVERNMENT
Mejia-Perez v. Gonzales, 490 F.3d 1011 (8th Cir. Jul. 25, 2007) ("In order to establish a claim of equitable estoppel against the government, Mejia-Perez must prove: (1) a false representation by the government; (2) the government's intent to induce Mejia-Perez to act on the misrepresentation; (3) Mejia-Perez's lack of knowledge or inability to obtain the true facts; (4) Mejia-Perez's detrimental reliance; and (5) affirmative misconduct by the government."; failure to process asylum application for nine years did not constitute affirmative misconduct). Note: this case provides a good summary of the law on this issue.
REMOVAL PROCEEDINGS " COURT OF APPEALS " STAY OF REMOVAL
Leiva-Perez v. Holder, ___ F.3d ___, 2011 WL 1204334 (9th Cir. Apr. 1, 2011) (clarifying standard for stays of removal in light of Nken v. Holder, 129 S.Ct. 1749 (2009); In sum, and for the sake of clarity, we hold that in light of Nkens impact on our prior precedent, a petitioner seeking a stay of removal must show that irreparable harm is probable and either: (a) a strong likelihood of success on the merits and that the public interest does not weigh heavily against a stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the petitioners favor. As has long been the case, [t]hese standards represent the outer extremes of a continuum, with the relative hardships to the parties providing the critical element in determining at what point on the continuum a stay pending review is justified.).
JUDICIAL REVIEW - PETITION FOR REVIEW - COURT OF APPEAL CANNOT UPHOLD BIA DECISION ON A THEORY OTHER THAN THE ONE ON WHICH IT RELIED
Malta-Espinoza v. Gonzales, ___ F.3d ___, 2007 WL 624532 (9th Cir. March 2, 2007) ("We also note that the BIA affirmed on the theory that Malta-Espinoza's conviction was for harassing, not following. We cannot uphold the decision of the BIA, an administrative agency, on a theory other than the one upon which it relied. See SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943).").
REMOVAL PROCEEDINGS - APPEAL - RECORD OF PROCEEDINGS
Witjaksono v. Holder, 573 F.3d 968 (10th Cir. Jul. 17, 2009) (to demonstrate a denial of due process and obtain relief, an alien must show that the deficient transcript prejudiced his ability to perfect an appeal. Oroh, 561 F.3d at 65; Kheireddine, 427 F.3d at 85; cf. United States v. Kelly, 535 F.3d 1229, 1240-41 (10th Cir.2008) (a violation of the Court Reporter's Act did not require reversal because the defendant failed to show prejudice). That is, an alien must show that the "gaps [in the transcript] relate to matters material to his case and that they materially affect his ability to obtain meaningful review." Oroh, 561 F.3d at 65 (quotations omitted)).
OVERVIEW - APPEAL - ATTORNEYS FEES
AILF Practice Advisory: REQUESTING ATTORNEYS FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT December 15, 2008: "This Practice Advisory addresses the deadline for filing an Equal Access to Justice Act (EAJA) fee application, the statutory requirements for eligibility, and procedural aspects of filing an EAJA fee application, including documenting and calculating fees." Copyright 2008 AILF. http://www.ailf.org/lac/pa/EAJA_Fees_04_07_06.pdf
JUDICIAL REVIEW - FINALITY OF REMOVAL ORDERS
New AILF practice advisory: Trina Realmuto, "Finality" of Removal Orders for Judicial Review Purposes (June 23, 2008). Addressing whether a BIA remand, for example, affects the "finality" of a removal order. http://www.ailf.org/lac/pa/lac_pa_finrem.pdf
OVERVIEW - POST-DEPORTATION RETURN TO UNITED STATES AFTER PREVAILING ON PETITION FOR REVIEW
AILF Practice Advisory: Return to the United States after Prevailing on a Petition for Review (January 17, 2007). This Practice Advisory contains practical and legal suggestions for attorneys representing clients who have prevailed on a petition for review or other legal action and who are outside of the United States. See http://www.ailf.org/lac/lac_pa_index.shtml.
IMMIGRATION COURT JURISDICTION AFTER DEPORTATION OR DEPARTURE FROM UNITED STATES
The regulations provide that departure from the United States under an order of deportation, or while a removal order is on appeal to the BIA, shall render the immigration judges decision final and bar any motion to reopen or reconsider. 8 C.F.R. 1003.2(d), 1003.4. However, many circuits have challenged the validity of these regulations. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007) (first sentence of 8 C.F.R. 1003.2(d) is ultra vires to statute); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (giving narrow reading to phrase "is the subject of"); Contreras-Rodriguez v. United States Atty Gen., 462 F.3d 1314 (11th Cir. 2006) (departure regulation does not apply to in absentia motions to reopen); Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 838 (9th Cir. 2003) ("Under 8 C.F.R. 1003.4, any voluntary departure from the United States following entry of an order of deportation will be deemed to withdraw a pending appeal and to render the order of deportation final."). Thanks to Rachel E. Rosenbloom; Beth Werlin.
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
PRACTICE ADVISORY " PETITION FOR REVIEW " ADMINISTRATIVE RECORD " CORRECTING INCOMPLETE RECORD
1. Pursuant to Federal Rules of Administrative Practice, rule 16, the record on review for enforcement of an agency order includes the pleadings, evidence, and other parts of the proceedings before the agency. The rule provides that the Court may direct that a supplemental, corrected record be prepared and filed if there is an omission from the record. 2. The Immigration Judge (IJ) and Board of Immigration Appeals (BIA) have a regulatory duty to furnish Petitioner with the reviewed and approved transcript of decisions upon notice of appeal. 8 CFR 1003.5 (the immigration judge shall review the transcript and approve the decision within 14 days of receipt.). 3. Pursuant to 8 CFR 1240.9, the administrative record must include the hearing before the immigration judge, including the testimony, exhibits, applications, proffers, and requests, the immigration judges decision, and all written orders, motions, appeals, briefs and other papers filed in the proceedings. 4. Federal Rules of Appellate Procedure, rule 17(b)(1)(A), requires that the agency file the original or a certified copy of the entire record. 5. Check cover sheet of the Certified Administrative Record. Point out that someone at OIL certified that this is the entire certified administrative record. This certification was under penalty of perjury. Attach a copy of that page, because it is the "zero" page and does not have pagination of record on it. The in absentia hearing is part of the administrative record for this client, therefore the government has the duty to transcribe the tapes. 6. File a motion for a corrected certified administrative record and to hold the case in abeyance until the record is corrected. Thanks to Maris J. Liss.