What is a Petition for Review?
A petition for review (PFR) is a pleading that you may file in federal Circuit Court if you disagree with a decision regarding a removal or deportation order issued by the Board of Immigration Appeals or U.S. Immigration and Customs Enforcement. In most cases, you cannot appeal a decision of an immigration judge directly to the Circuit Courts, you have to appeal to the BIA first and then if you lose, you can file a PFR with the Circuit Court.
Can I File a Petition for Review?
In most cases, the Circuit Courts of appeal have exclusive jurisdiction to review a “final order of removal;” you cannot appeal most immigration cases to the lower federal courts. The following are types of decisions that are eligible for review for the Circuit Courts:
- A BIA decision to issue a final removal order;
- A BIA decision to deny a motion to reconsider or a motion to reopen;
- A BIA decision to deny asylum (in asylum-only proceedings);
- An order of removal issued by ICE under INA § 241(a)(5) (reinstatement of removal) or INA § 238(b) (administrative removal).
Not every case can be “appealed” from the BIA to the Circuit Courts through a PFR. Usually, only cases involving constitutional or legal issues can be appealed to the Circuit Courts. If an immigration judge denied your case on discretion (meaning you do not deserve to stay in the U.S.), or your motion to reopen your case “sua sponte,” was denied, the Circuit Courts probably cannot review your case. However, if the immigration judge said your criminal conviction was an aggravated felony and you disagree, or the immigration judge denied your asylum claim and said your particular social group was invalid, those are the types of issues you may be able to appeal to the Circuit Courts through a PFR.
When Should I File a PFR?
Your petition for review must be filed within thirty days after the date of the final order of removal, exclusion, or deportation. There are generally no exceptions to this rule, so it is very important that you file timely. This deadline is not extended by filing a motion to reopen or reconsider or by the granting or extension of voluntary departure. It is important to know that the petition for review must be received by the clerk’s office on or prior to the thirtieth day. This means that even if you mail the petition prior to the thirtieth day, if it is not received by the thirtieth day it is late. If the last day of the thirty-day period is a Saturday, Sunday, or legal holiday, the period will extend to the next day that isn’t a Saturday, Sunday or legal holiday. For example, if your last day to file is a Saturday, that period will actually be extended to the following Monday. If that Monday is federal holiday, for example, your period will actually be extended to Tuesday.
Why Should I File a PFR?
If the immigration judge ordered you to be removed from the U.S. and you appeal to the BIA and they agree you should be removed, ICE can detain and deport you at any time. One way to try to avoid ICE executing your final order of removal is to file for a PFR and ask for a stay of removal. If you file a PFR and the Circuit Court grants you a stay of removal, ICE cannot deport you from the country while your PFR is pending.
If you lose your removal case and do not file a PFR on time, it will be very difficult to reopen your case and overcome the order of removal. If you file a PFR, often times you can talk to and negotiate with the Department of Justice (DOJ) lawyer who is handling the case. The DOJ lawyer may see the case very differently than the immigration judge or the BIA did and they may agree with the arguments in your PFR. Sometimes, the DOJ lawyer will agree to remand your case to the BIA or the Courts for a new decision. Sometimes the Circuit Court will order your case to be remanded for a new decision. Either way, that is good news and often results in you winning your case, which is the obvious goal of a PFR.
Can a PFR help my Asylum Case?
Asylum is a discretionary form of relief, but the Circuit Courts retain jurisdiction to review most aspects of the asylum determination under INA § 242(a)(2)(B)(ii). However, there are limitations that prevent certain aspects of asylum decisions from being reviewed by the Circuit Court. Some issues that cannot be appealed with a PFR, for example: whether you have established changed circumstances or extraordinary circumstances to excuse the late filing of an asylum application.
But you can always argue constitutional or legal issues through a PFR to the Circuit Court. This means that if you believe that the BIA or ICE made an error that resulted in a violation of the U.S. Constitution or misinterpreted or misapplied the law in your asylum case, you may still file a petition for review.
If you lost your asylum case before the immigration court and lost your appeal to the BIA, you have a very limited time to file a PFR and keeping fighting against deportation. You should speak to an experienced immigration attorney as soon as possible who handles cases in the federal circuit where you went to immigration court. With very limited exceptions, only attorneys licensed/barred with the Circuit Court can file a PFR to help you.
If you recently received a decision from the Board of Immigration Appeals and want to talk about filing a Petition for Review (appeal) of that decision, call the experienced immigration attorneys at Shorstein, Lasnetski and Gihon today.