IN THE CONTEXT OF A DEPORTATION ORDER, A PETITION FOR REVIEW IS THE NAME GIVEN BY THE FEDERAL CIRCUIT COURTS OF THE UNITED STATES TO AN APPEAL TAKEN BY A NONCITIZEN FROM AN ADVERSE DECISION OF THE BOARD OF IMMIGRATION APPEALS, OR FROM AN ORDER OF REINSTATEMENT BY THE DEPARTMENT OF HOMELAND SECURITY.
Earlier in the Home Page of this website we explained in the "what is an appeal" subtitle that there are three (3) adjudicatory levels of "review" in every deportation case that is brought against a noncitizen in the court systems. We remarked there that there are two (2) court systems—the first is administrative and the second is a judicial system.
First (administrative) level.
The first level of review takes effect in front of an immigration judge presiding in an immigration court (also known as the first level of the Executive Office for Immigration Review (or "EOIR" for short)). At the conclusion of the deportation proceedings (usually a year, two or three years later) if the immigration judge denies all applications the noncitizen may have applied for and orders that the noncitizen be deported, that noncitizen has the right under our laws to file an appeal, which simply means that the noncitizen does not agree with "how" the immigration judge arrived at his or her decision to deny the applications and to order deportation. The appeal from an order of an immigration judge must be filed with the BIA, which is the next level of authority higher than the level of the immigration judge. Hence, the first level of review is conducted by the immigration judge and ends when the immigration judge renders a final decision in the noncitizen's case. If the noncitizen takes an appeal from that decision, it must file a Notice of Appeal, Form EOIR-26 with the BIA which must receive the appeal within the first 30 (calendar) days, or the appeal will be untimely and rejected.
Second (administrative) level.
If the noncitizen's Notice of Appeal arrived to the BIA within the first 30 calendar days that filing commences the process of the second level of review. This second level can take its course as short as a few months and as long as 1, 2 or 3 years in some instances depending upon a series of internal factors within the BIA system, which the noncitizen has no control over it. However, the noncitizen does have control over other factors in the appellate process that are not a part of the BIA's internal system—such as whether the appeal raises complex issues and whether it is legally well-thought-out and properly presented. Said differently, if an appeal to the BIA presents a single issue and that issue is controlled by well-settled law, then the BIA will very likely decide the appeal in a very short time after the appeal briefs have been filed. On the other hand, if the appeal raises complex and/or issues that were never decided before by the BIA, it is very likely that such appeal process will take much longer to be completed because of the nature and complexity of the issues raised. At some point however, the BIA will issue a decision over the appeal and it may either—grant the appeal and remand the case back to the immigration judge with specific instructions or may grant the appeal and terminate deportation proceedings allowing the noncitizen to avoid deportation altogether.
But if the BIA decision is adverse to the noncitizen by dismissing the appeal, the noncitizen has another level of review (the third level) which requires that the noncitizen file the appeal process within the first 30 calendar days from the date shown in the decision of the BIA as is described immediately below.
Third (judicial) level.
The third level of review of an order entered against a noncitizen in deportation proceedings is referred to as a "judicial" review process, as distinguishing it from the two (2) "administrative" levels as earlier explained in our Home Page under the subtitle "What is the difference between Administrative and Judicial Appeals?" Although it is simply another appeal or appellate process, it is referred to by the federal judicial system as a "Petition for Review" of a federal agency of the United States government. Hence, Petitions for Review not only refer to appeal processes involving deportation orders but also include adverse decisions of other federal agencies such as the Social Secuirty Administration and countless others. There are eleven federal circuits in the United States that are authorized to accept "Petitions for Review" from decision of the BIA involving orders of deportation; and each of these federal circuits are required to adjudicate appeals from the various regions of the United States as we explained earlier in this website in the "Stay of Deportation" page under the subtitle "The Laws Affecting Stay Requests by Noncitizens Also Vary from Region to Region Within the Federal Circuits of the United States."
Timely filed. As with the second (administrative) appeals process explained above, if the noncitizen receives an adverse decision issued by the Board of Immigration Appeals—say for example on July 1— the noncitizen has only 30 calendar days (i.e., until July 31) in which to make sure that the Petition for Review is filed with the corresponding federal circuit of the United States, or the BIA adverse decision will become an enforceable decision against the noncitizen if it was rejected because it arrived more than 30-days thereafter. Hence, to be timely filed the noncitizen must file the Petition for Review so that it is received by the corresponding federal circuit in a timely manner.
The Mechanics of a Petition for Review.
Must be Accompanied by the BIA decision. When the Petition for Review is being filed with the appropriate federal circuit it must be accompanied by the BIA decision that the federal circuit will be reviewing. If for any number of reasons, the BIA decision is lost, misplaced or simply the noncitizen does not have it in his or her possession, the clerk of the corresponding federal circuit will likely issue an order to show cause ("OSC") instructing the filer (the noncitizen) to file a copy of the missing BIA decision within 21 days (sometimes it may be less time) or the Petition for Review may be dismissed. Keep in mind however that for every wrong the court finds in your Petition for Review there will be an opportunity to remedy it, so that if the BIA decision is timely supplied to the court, it is very likely that the court will withdraw or discharge the OSC thereafter.
Must be Accompanied by the Filing Fee. A filing fee of $500 must be paid when filing a Petition for Review in any of the federal circuits. This is the "tax" imposed upon the noncitizen by the federal courts to pay for a small portion of the costs associated with running the federal court systems of the United States and make them available to the public. These fees do not begin to cover the expenses but represent a reasonable expenditure that every litigant should pay for in requesting the federal courts to adjudicate a claim. Some of the federal circuits require the payment of these fees be made by credit or debit cards while others still require the noncitizen to send a check or money order for the $500 filing fee. Waiver of fees or in Forma Pauperis: All federal circuits are required to consider a petition for review by a noncitizen who is unable to pay for the filing fee of $500.00 because the noncitizen is "indigent." The process involves the filing of an application or motion asking for permission to proceed in forma pauperis. In such instances, the noncitizen must file an affidavit under penalty of perjury attesting to his or her income and expenses in detail to enable the clerk to make a decision on the indigent's application to prosecute the Petition for Review "In Forma Pauperis." If the application is denied, the clerk of the court will give the noncitizen an additional time in which to pay the filing fee before it is dismissed for lack of prosecution. If the application to proceed in forma pauperis is approved, the noncitizen will be allowed to continue to prosecute the Petition for Review without incurring the obligation to pay the filing fee of $500.
If a Stay of Deportation will be Required, it Must Accompany the Petition for Review. A stay of deportation as explained earlier in this website in the Home Page at the tab "Stay of Deportation" must accompany the Petition for Review as a separate filing. The reason why a noncitizen would want to file a stay of deportation is particularly evident when the noncitizen is in the custody of the Immigration and Customs Enforcement agency (the "ICE"). Obviously, in those instances when the noncitizen is in the custody of ICE, the noncitizen's deportation from the United States can be effected more rapidly by the federal authorities because the automatic "stay" of the order of deportation that accompanies pre-BIA decisions is no longer in effect after the BIA issues a final administrative order of removal. Today, an application for a "stay of removal" (as is now called) is very difficult to obtain but necessary in most cases where without such order the ICE is unrestrained and likely ready to remove (deport) the noncitizen to his or her home country or place of last residence even though the noncitizen is pursuing a Petition for Review of the BIA adverse decision. As noted in the "Stay of Deportation" page in this website, after the last major amendment to our immigration laws by Congress in 1996, filing a Petition for Review since then no longer provides for an automatic stay after the BIA makes a decision. Congress should really revisit the termination of the automatic stay it provided in all Petitions for Review because, while there is a potential for abuse of the automatic stay, the potential risks associated with terminating the automatic stay is proportionately more disadvantageous to noncitizens where deporting the noncitizen before a decision is made on the Petition for Review may bring insurmountable pain and suffering to the noncitizen and his or her immediate family and specially where minor children are involved whom are left behind without one or both parents. A study should be made to ascertain the numbers of cases where stays were denied and the noncitizen deported while the Petition for Review is granted on the merits thereafter.
A Petition for Review therefore constitutes the third level of review that noncitizens may receive before their deportation case is considered "final."
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