Federal Court Review

If the applicant again loses before the Board of Immigration Appeals (BIA), their only remaining recourse is to file a petition for review in the federal Court of Appeals in the circuit in which the case was originally tried. Petitions for review of BIA decisions must be filed within 30 days of the issuance of the BIA decision. However, where there is an earlier deadline that may affect deportability, such as a shorter period of voluntary departure, the petition should be filed prior to that time.

Unlike with BIA appeals, there is no automatic stay when a federal appeal is filed, so it is imperative for counsel to seek a stay of removal while the appeal is pending. It is not unheard of for the Deportation Branch of Immigration & Customs Enforcement (ICE) to move to quickly deport people. Keep your eyes out for what is called a “bag-and-baggage” letter requesting that your client report to ICE for deportation. As the BIA’s streamlining has increasingly eliminated meaningful review of the Immigration Judges’ decisions, more and more asylum cases are being appealed to federal court. If there is any reasonable and non-frivolous ground for appeal, the attorney should seriously consider filing a petition for review.

Federal Court appeals are beyond the scope of this manual, but, again, the reader is directed to the American Immigration Law Foundation’s practice advisories for excellent information on a variety of federal court issues.

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

This handbook is intended for use by pro bono attorneys and immigration attorneys working on LGBTQ/HIV asylum cases.



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