Criminal Defense of Immigrants

 

After a decision is issued by the Immigration Judge, the “losing” party is given the choice whether to waiver or reserve appeal.  If appeal is waived, the decision becomes final.[353]  The waive must be knowing and intelligent.[354]  If appeal is reserved, the party has 30 days from the date the oral decision is read, or the written decision is mailed, in which to file a notice of appeal to the Board of Immigration Appeals (“BIA”).[355]  The requirements for a notice to appeal include a description of the factual and legal basis for the appeal.[356]  The record of proceedings of the immigration judge will be forwarded to the BIA, and the immigration proceedings transcribed.[357]  Briefing schedules are controlled by 8 C.F.R. § 1003(c).  Counsel may refer to a practice manual for more information on procedural and filing requirements.[358]

 

An appeal to the BIA may take six months to a year or more.  Appeals in cases in which the noncitizen is in immigration detention are given priority.  The BIA is plagued with a huge backlog[359] and has significantly revised its case-review process.[360]  Known as “streamlining,” under this new process, decisions that formerly went before a three-judge panel are now reviewed by a single judge,[361] and the decision may merely sustain the findings of the immigration judge in a one-sentence decision.[362]  Cases may be transferred from a single judge to a three-judge panel of judges in specified circumstances, such as when the case presents the need to resolve a split among immigration judges or to publish a precedential decision.[363]  There have been a number of cases successfully challenging the new streamlined procedures as violating due process.[364]

 

The BIA reviews all legal issues de novo, including discretionary decisions, but will not generally engage in fact-finding and is not supposed to dispute the facts found by the immigration judge, unless found to be clearly erroneous.[365]  Oral argument is possible, [366] but rare.

 

The BIA may designate a decision as precedent, meaning that the decision is binding on all immigration judges nationwide unless the circuit court in which the IJ sits has addressed the same issue and decided it differently than the BIA.[367]

After a decision is issued by the BIA, the parties can either accept the decision as final, the BIA can refer the case to the Attorney General for review,[368] or one of the parties may file an appeal (called a petition for review) in the federal circuit court which has jurisdiction over the locale where the immigration judge sits.[369]  A motion to reopen or reconsider may also be filed before the BIA.[370]

 

                The BIA will often decide an issue, then remand the case to the IJ for further proceedings.[371]  Generally, upon remand any issue may be brought before the IJ unless the BIA expressly limits the issues to be considered by the IJ.[372]  The circuit courts are split on whether (and when) the BIA has jurisdiction to order removal, or whether the BIA must remand a case back to the Immigration Judge to order removal.[373]

[353] 8 C.F.R. § 1003.39.

[354] See, e.g., Matter of Rodriguez-Diaz, 20 I. & N. Dec.  1320 (BIA 2000) (unrepresented respondent must understand that waiver makes appeal impossible); Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005); United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir. 1988), cert. denied, 525 U.S. 849 (1998) (waiver must be “considered and intelligent”); Matter of Patino, 23 I. & N. Dec. 74 (BIA 2001).

[355] 8 C.F.R. § § 1003.38(b), 1240.15.  See Matter of Liadov, 23 I. & N. Dec. 990 (BIA Sept. 12, 2006) (BIA lacks authority to extend 30-day time limit for filing appeal); Huerta v. Gonzales, 443 F.3d 753 (10th Cir. Apr. 11, 2006) (thirty-day deadline to appeal IJ decision to the BIA is not jurisdictional; if BIA grants a late appeal neither the BIA nor a reviewing court of appeals is barred by an untimely filing of a notice to appeal to the BIA).

[356] 8 C.F.R. § 1003.3(a)-(b); see Esponda v. U.S. Att’y Gen., 453 F.3d 1319 (11th Cir. Jun. 28, 2006) (BIA abused its discretion in dismissing appeal based on failure to submit brief without first determining whether the issues were adequately stated in the notice to appeal; whether BIA was correct in summarily dismissing an appeal where no brief was filed is reviewed for abuse of discretion).

[357] 8 C.F.R. § 1003.5.

[358] http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm (last visited 12/4/06).

[359] See, e.g., Meghani v. INS, 236 F.3d 843 (7th Cir. 1993) (7 years to issue decision).

[360] 8 C.F.R. § 1003.1(e).

[361] Ibid.

[362] 8 C.F.R. § 1003.1(e)(4).

[363] 8 C.F.R. § 1003.1(e)(6); Purveegiin v. Gonzales, 448 F.3d 684 (3d Cir. Jun. 1, 2006) (court has jurisdiction to review question of whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA panel). But see Guyadin v. Gonzales, 449 F.3d 465 (2d Cir. May 30, 2006) (court lacks jurisdiction to review question of whether BIA member responsible for an appeal erred in not referring the appeal to a three-member BIA panel).

[364] See, e.g., Denko v. INS, 351 F.3d 717 (6th Cir. Dec. 8, 2003); Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir. 2003); Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003).

[365] 8 C.F.R. § 1003.1(d)(3).

[366] 8 C.F.R. § 1003.1(e)(7).

[367] 8 C.F.R. § 1003.1(g). Matter of ELH, 23 I. & N. Dec. 814 (BIA 2005) (BIA precedent decision remains controlling unless the Attorney General, Congress, or a federal court modifies or overrules a decision).  See also 8 C.F.R. § 1003.1(d)(7) (finality).

[368] 8 C.F.R. § 1003.1(h).

[369] See § 15.36, infra.

[370] 8 C.F.R. § 1003.2.

[371] See, e.g., Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978) (once there is a remand that is not limited or qualified, the immigration judge may consider other and further relief).

[372] See Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978).

[373] See Guevara v. Gonzales, 472 F.3d 972 (7th Cir. Jan. 8, 2007) (BIA has power to order removal in first instance); Lazo v. Gonzales, 462 F.3d 53 (2d Cir. Sept. 1, 2006) (where IJ found removability, but granted relief, then BIA reverses grant of relief, BIA has jurisdiction to order noncitizen deported without remand to IJ), following Solano-Chicas v. Gonzales, 440 F.3d 1050, 1053-54 (8th Cir. 2006); Del Pilar v. U.S. Att’y Gen., 326 F.3d 1154, 1156 (11th Cir. 2003); Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), disagrees with Molina-Camacho v. Ashcroft, 393 F.3d 937, 940-41 (9th Cir. 2004).  See also James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (while the BIA has jurisdiction to order noncitizen removed when IJ found removability, but granted relief, and the BIA then reverses the grant of relief, the BIA does not have jurisdiction to order removal where the IJ initially found noncitizen was not removable, and the BIA reverses; in such case, BIA must remand to IJ), distinguishing Delgado-Reyuna v. Gonzalez, 450 F.3d 596, 600 (5th Cir. 2006), following Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-881 (9th Cir. 2003).