A Motion For Stay (In Most Cases) Should Be Requested When Filing The Petition For Judicial Review In The United States Court of Appeals. Otherwise, Agents From The Immigration And Customs Enforcement Agency Are Empowered With The Authority To Arrest The Alien And To Effect The Deportation Order Even If The Court Of Appeals Has Not Yet Decided Your Petition For Judicial Review. A motion for stay pending adjudication of the petition is of supreme importance because often, the INS (now named IMMIGRATION AND CUSTOMS ENFORCEMENT or "ICE") will start the removal of the petitioner from the United States while he or she is attempting to obtain judicial review of the administrative decision. We cannot stress sufficiently enough the importance of filing a timely motion for stay concurrently with the filing of the petition for review in appropriate cases. In other more rare instances, it may be strategically more advantageous to wait until ICE has affirmatively notified the petitioner that he/she would be taken into custody preceding his/her removal from the United States before filing the motion for stay with the Court of Appeals. What determines the appropriate course in any case, is a matter that should be examined on a case by case basis by legal professionals familiarized with the specifics of the case, and the practice of ICE and the courts in the appellate jurisdiction.
Frequently, it may be necessary to file a post decision motion with the Board of Immigration Appeals concurrently with the filing of a petition for review with the United States Court of Appeal. This is usually required in order to "raise" or "preserve" an issue for judicial review, which may not have been fully developed before the Immigration Judge or the Board of Immigration Appeals, and without which, the petition may not be reviewable by the Court. Not raising such issues may prove severely disadvantageous and in some instances fatal to the merits of the petition for review before the Court of Appeals. Thus, it is very important to carefully examine the administrative record when strategizing the appeal process and to accurately define the substantive and procedural claims before initially embarking in the preparation of the appeal brief or petition for review.
In many instances, aliens are not aware that a final order of the Board has been rendered until ICE's agents begin enforcing the final order of deportation, exclusion or removal (often, armed with a final order of deportation, ICE sends federal officers to apprehend the alien at his/her home during early hours of the morning, unexpectedly as most people would be at home sleeping).
In such instances where the alien was unaware of the BIA's decision, a petition may still be properly filed in accordance to established precedent in some circuits despite its apparent untimeliness. Contact Us immediately for more information.
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