Chapter 33 - § 33.1 • CIRCUIT COURT REVIEW OF FINAL REMOVAL ORDERS

• Jurisdiction: Colorado

§ 33.1 • CIRCUIT COURT REVIEW OF FINAL REMOVAL ORDERS

§ 33.1.1—Statutory Basis For Review

The primary basis for federal court review of removal orders is § 242 of the Immigration and Nationality Act (INA) (8 U.S.C. § 1252). The INA provides that federal court review is available by petition for review (PFR) to the circuit court for final orders of removal from the Board of Immigration Appeals (BIA); denials of motions to reopen or reconsider from the BIA; reinstatement of removal orders from Immigration and Customs Enforcement (ICE) under § 241(a)(5) (8 U.S.C. § 1231(a)(5)); denials of asylum in asylum-only proceedings; and expedited removal orders issued by ICE under INA § 238(b) (8 U.S.C. § 1228(b)), where the petitioner is claiming that the conviction for the crime is not an aggravated felony.

§ 33.1.2—Nuts And Bolts Of Petitions For Review In The Circuit Court Naming the Parties

In circuit court proceedings arising from a petition for review, the non-citizen (the respondent in the underlying removal case) is the "petitioner" and the attorney general is the "respondent."¹ (Courts, however, generally discourage the use of such terms in briefing.)

Format for the Petition for Review

The petition for review does not need to be in any particular format and no formal complaint is necessary. The petition need only state, "The Petitioner seeks review by the Court of the final order of removal/deportation/exclusion entered by the Board of Immigration Appeals/Immigration and Customs Enforcement on the (date of decision). A copy of the decision is attached." A copy of the underlying order must be attached. However, the circuit courts have different filing procedures and attorneys should consult the Federal Rules of Appellate Procedure (FRAP) and local court rules before filing.² Notably, the Tenth Circuit requires, by local rule, that additional documents accompany the PFR.³

Venue

Venue to review a final order of removal lies in the circuit court with geographic jurisdiction over the immigration court that completed the case.⁴

Deadline

The appealing party must file the petition for review within 30 days of the date of the final order of removal.⁵ This deadline is jurisdictional and the court cannot extend or waive it.⁶ Ineffective assistance of counsel resulting in a missed deadline provides a basis for the non-citizen to file a motion to reopen with the BIA, pursuant to Matter of Lozada⁷ and Matter of Compean.⁸ (Be aware that the BIA has purported to impose strict requirements on such motions, although some circuits do not require "slavish adherence" to the BIA's strictures.⁹ ) Another option is to ask the BIA to rescind and reissue its original decision, which, if done, has the effect of restarting the 30-day appeal clock.

Jurisdiction

The circuit courts have exclusive jurisdiction to review final orders of removal, with the exception of expedited removal orders entered under INA § 235(b)(1) (8 U.S.C. § 1225(b)(1)). To determine whether the circuit court has jurisdiction over a particular case or issue, the attorney must review the jurisdictional bars at INA § 242 (8 U.S.C. § 1252), as amended by the REAL ID Act.¹⁰ The case law is constantly evolving regarding the jurisdictional bars, and attorneys should carefully research jurisdiction. The court has jurisdiction to determine its own jurisdiction, and so practitioners can always argue (or dispute) jurisdiction.¹¹

The circuit court can review all constitutional claims and questions of law arising from the immigration proceeding.¹² This includes determinations as to whether a criminal offense makes a non-citizen removable.¹³ Circuit courts disagree, however, on the extent to which the REAL ID Act's expansion of jurisdiction to review "constitutional claims or questions of law" provides jurisdiction to review BIA decisions relating to the one-year asylum filing bar.¹⁴ The Tenth Circuit has held that it has jurisdiction to review only a narrow set of constitutional and legal disputes arising from the bar and not the BIA's (or immigration judge's) factual determinations.¹⁵

When Congress passed the REAL ID Act in 2005, it restricted the ability of non-citizens to challenge removal orders in district court through habeas corpus proceedings.¹⁶ It also eliminated judicial review over most discretionary decisions.¹⁷ However, the U.S. Supreme Court has limited this latter principle to instances where the authorizing statute explicitly states that the decision is at the government's discretion.¹⁸ As noted above, REAL ID expanded the scope of review over purely constitutional and legal questions.¹⁹ REAL ID also preserved habeas corpus review over challenges to unlawful detention.²⁰

Scope and Standard of Review

The circuit court only reviews what is in the administrative record. A petitioner cannot raise on appeal arguments and issues he or she did not raise before the BIA.²¹ An exception to this general principle is an issue neither party raised but that the BIA considered sua sponte.²² However, for this exception to apply, the BIA must (1) clearly identify a claim, issue, or argument not presented on appeal; (2) exercise its discretion to entertain the matter; and (3) explicitly decide that matter in a full explanatory opinion or substantive decision.²³

The final agency action is the BIA decision and not that of the immigration judge.²⁴ If, however, the BIA affirms the decision below without opinion, the circuit court reviews the decision of the immigration judge.²⁵ If the BIA issues a brief opinion adopting the immigration judge's reasoning, the circuit court can consult the immigration judge's more complete explanation. If the BIA incorporated the reasoning of the immigration judge expressly or by implication, the court can impute the immigration judge's opinion to the BIA.²⁶

The circuit court reviews the BIA's factual determinations to see if they are supported by "substantial evidence." Facts found are conclusive unless a reasonable adjudicator would be compelled to conclude to the contrary.²⁷ The BIA's factual determinations must find support in reasonable, substantial, and probative evidence considering the record as a whole.²⁸ The court reviews questions of law de novo.²⁹

Deference Principles in Agency Appeals

Following Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., courts will normally defer to agency interpretations of statutes where Congress has delegated rule-making authority to the agency...