Administrative and Judicial Review

Transcription

1 Chapter 8 Administrative and Judicial Review 8:1 Introduction 8:2 Board of Immigration Appeals: Authority and Procedure 8:2.1 BIA Authority 8:2.2 BIA Appeal Procedures [A] Filing the Appeal [B] Stay of Removal and Unlawful Removal During Appeal [C] Summary Dismissal [D] Standard of Review [E] Rules Streamlining BIA Case Management [F] Final Decision 8:2.3 Motion to Reopen or Reconsider [A] Generally [B] Applications for Relief [C] Motions Based on Ineffective Assistance of Counsel [D] Time and Numerical Limitations [E] Filing Procedures and Stay of Removal Order 8:2.4 Motions to Rescind an In Absentia Order [A] Generally [B] Exceptional Circumstances [C] Failure to Receiving Hearing Notice [D] Effect of Departure 8:3 USCIS Appellate Authority and Procedure 8:3.1 Authority: Types of Cases 8:3.2 Appeal Procedure 8:4 USCIS Determinations Not Subject to Administrative Appeal 8:5 Judicial Review: Removal Orders 8:5.1 Judicial Review Prior to IIRIRA 8:5.2 Judicial Review Under INA Section 242 (Generally) 8:5.3 Standing and Exhaustion of Remedies 8:5.4 Coverage of Judicial Review: The Final Order (Fragomen, Rel. #2, 10/16) 8 1

2 8:1 FRAGOMEN ON IMMIGRATION FUNDAMENTALS 8:5.5 Additional Jurisdictional Limitations [A] The Court-Stripping Provisions [B] Availability of Habeas Review [C] REAL ID Act Amendments [C][1] Impact on Habeas Review [C][2] Supreme Court Rulings Addressing Review of Discretionary Determinations [C][3] Determinations Not Subject to Review Under Section 242(a)(2)(D) [C][4] Determinations Subject to Review 8:5.6 Applicable Procedures on a Petition for Review [A] Request for Stay [B] Service of Petition [C] Filing Deadline 8:5.7 Scope and Standard of Review [A] Finding of Deportability or Removability [B] Discretionary Forms of Relief [C] Motions to Reopen and Reconsider 8:6 Judicial Review: Labor Certifications, Petitions, and Applications 8:6.1 Jurisdictional Basis 8:6.2 Exhaustion of Administrative Remedies 8:6.3 Standing 8:6.4 Scope and Standard of Review 8:7 Judicial Review of Citizenship and Naturalization Matters 8:7.1 Review of Citizenship Claims Under INA Section 360(a) 8:7.2 Review of Citizenship Claims in Removal Context 8:7.3 Other Forms of Judicial Review of Citizenship Claims 8:7.4 Review of Naturalization and Denaturalization Decisions 8:8 Judicial Review: Visa Issuance 8:1 Introduction Review of unfavorable immigration determinations is generally available in either the administrative context or in federal court. Depending on the benefit applied for, most administrative appeals in the immigration area are heard by one of a number of appellate bodies situated within the Department of Justice (DOJ), the Department of Homeland Security (DHS), the Department of State, the Department of Labor (DOJ), or the United States Information Agency. This chapter focuses primarily on administrative and judicial review of decisions made by officers of DHS. Appellate authority over immigration decisions made within the DOJ is primarily divided between the Administrative Appeals Office (AAO) of the USCIS and the Board of Immigration Appeals (BIA or Board), a body of administrative judges under the jurisdiction of the Executive Office for Immigration Review (EOIR). In general, removal 8 2

3 Administrative and Judicial Review 8:2.1 determinations are initially made by immigration judges, and are appealable to the BIA. The BIA, in turn, renders the final administrative decision with regard to all matters relating to removal proceedings, including eligibility for relief from removal, detention, and parole and bond determinations. In addition, the BIA exercises appellate authority over most, but not all, family-sponsored immigrant cases. 1 The AAO, on the other hand, serves as the final administrative appellate authority in a variety of immigrant and nonimmigrant matters. For example, administrative appeals from the denial of employment-based immigrant visa petitions are made directly to the AAO, as are requests for review of denied nonimmigrant visa petitions. 2 Judicial review, either before a U.S. district court or a U.S. court of appeals, is available upon exhaustion of all administrative remedies before either the AAO or the BIA. The court that will hear the appeal and the procedures involved in filing the appeal vary depending upon the nature of the action appealed from. For example, judicial review of removal orders and ancillary matters must be brought in a U.S. circuit court of appeals. Judicial review of most AAO decisions is available based on the filing of a declaratory judgment action with the federal district court. Further judicial review can be obtained through the normal federal court appellate procedure. 8:2 Board of Immigration Appeals: Authority and Procedure The BIA is a body located within the DOJ and under the authority of the attorney general. It was established by regulation primarily to exercise the authority of the attorney general under the statute to review all orders of removal entered by immigration judges. Immigration judges and the BIA are within the same umbrella agency, called the Executive Office of Immigration Review. In addition to its authority to review decisions of immigration judges arising from removal proceedings, the BIA is also given authority to review certain USCIS decisions. 8:2.1 BIA Authority The Board s authority is strictly limited to the authority conferred by regulation enumerated in 8 C.F.R (b). This regulation confers on the Board the authority to review decisions of immigration judges in removal proceedings, including findings of inadmissibility or deportability or denials of discretionary relief. Any matter raised in a 1. See section 8:2, infra. 2. See section 8:3, infra. (Fragomen, Rel. #2, 10/16) 8 3

4 8:2.1 FRAGOMEN ON IMMIGRATION FUNDAMENTALS removal proceeding is subject to Board review, including applications for all forms of relief from removal, or other applications that, if granted, would completely dispose of the case. Matters that are not raised initially in a removal proceeding, but rather are decided initially by a USCIS officer, are not subject to review by the immigration judge or the Board, unless regulations explicitly permit the matter to be renewed in removal proceedings, such as applications for adjustment of status. In addition to jurisdiction over all matters arising from removal hearings, the Board also has jurisdiction to review all matters relating to detention, bond, and parole in removal hearings. In In re Villalobos, 2.1 the Board held that although DHS has exclusive jurisdiction over applications for adjustment of status under the legalization provisions of INA section 245A, IJs and the Board have jurisdiction to determine whether an individual was eligible for a previous adjustment under section 245A(b)(1) for purposes of assessing the individual s removability and current eligibility for relief from removal. The Board reasoned that, while both INA section 245A and its implementing regulations give DHS exclusive jurisdiction over adjustment applications filed under that section, the statute and regulations also make clear that the IJs and the Board have jurisdiction to determine an individual s removability and eligibility for relief once proceedings have commenced. There are certain limitations on the Board s authority. Specifically, no appeal may be taken from: (1) an order granting voluntary departure if the sole ground of appeal is that a greater period of departure time should have been granted; (2) an order of removal entered in absentia (removal orders entered in absentia may be rescinded, however, by filing a motion to reopen with the immigration judge, and denial of this motion may be appealed to the Board); (3) an order of removal entered after the individual waived his or her right to appeal; (4) a removal order premised on a medical certificate issued under section 232 of the INA. With regard to a waiver of the right to appeal, the waiver must be clear and unequivocal. For example, the Board held that an unrepresented individual did not waive his right to an appeal by accepting an immigration judge s decision as final during the removal hearing In re Villalobos, 26 I. & N. Dec. 719 (BIA Mar. 10, 2016). 3. In re Rodriguez-Diaz, 22 I. & N. Dec (BIA May 18, 2000). 8 4

5 Administrative and Judicial Review 8:2.1 The Board has also ruled that, except in very limited circumstances, the USCIS has exclusive jurisdiction to adjudicate an arriving person s application for adjustment of status under 8 C.F.R (a)(1) even where an unexecuted administrative final order of removal remains outstanding. 4 In addition, there is no right to a Board appeal when no hearing under INA section 235 is permitted by statute, as is the case for stowaways under INA section 273(d), 5 crewmen under INA section 252, 6 persons considered threats to the national security under INA section 235(c), 7 and persons who arrive at a U.S. port of entry with fraudulent or improper documents or with no documents at all and are subject to an expedited removal procedure under INA section 235(b)(1) (unless a claim to a permanent residence is involved). With regard to persons admitted under the Visa Waiver Program (VWP) who are placed in asylum-only proceedings, the regulations provide that the scope of review is limited to a determination of whether the individual is eligible for asylum or withholding or deferral of removal, and whether asylum shall be granted in the exercise of discretion. 7.1 Neither an IJ nor the Board has jurisdiction to consider whether asylum-only proceedings were improvidently instituted pursuant to a referral under the VWP. 7.2 Except for arriving persons, departure from the United States while an appeal is pending is deemed a withdrawal of the appeal. 8 The Sixth Circuit has ruled, however, that an appeal should not be considered withdrawn in the case of an individual who is forcibly removed from the United States. 9 Finally, the Board generally takes the position that it has no jurisdiction over interlocutory appeals. 10 Review authority over some matters not arising in removal proceedings has been conferred on the Board by regulation. These include: (1) the authority to review all decisions of the USCIS with regard to immigrant visa petitions, except employment-based petitions and petitions for orphans (the review authority also extends to decisions by the USCIS to revoke approval of such petitions); (2) the authority to review USCIS denials of applications for discretionary relief from removal under INA section 212(d)(3)(B). 4. In re Yauri, 25 I. & N. Dec. 103 (BIA Oct. 28, 2009) U.S.C. 1323(d). 6. Id Id. 1225(c) C.F.R (c)(3)(i) In re D-M-C-P-, 26 I. & N. Dec. 644 (BIA Aug. 5, 2015) C.F.R Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009). 10. In re Sacco, 15 I. & N. Dec. 109 (BIA Oct. 11, 1974). (Fragomen, Rel. #2, 10/16) 8 5

6 8:2.2 FRAGOMEN ON IMMIGRATION FUNDAMENTALS 8:2.2 BIA Appeal Procedures [A] Filing the Appeal An appeal to the BIA is commenced through the filing of a notice of appeal. An appeal from a decision of an immigration judge is made on Form EOIR-26. The appeal is filed directly with the BIA within thirty days of the IJ s decision. 11 The notice of appeal must also be accompanied by: (1) the appropriate filing fee; (2) proof of service of a copy of the appeal on the opposing party; and (3) a notice of entry of appearance (Form EOIR-27) if the individual is represented. An appeal from a decision made by the USCIS is made on Form EOIR-29. With regard to matters initially decided by the USCIS, the usual period of time to submit a notice of appeal is thirty days from the date of service of the USCIS decision. The notice of appeal in these cases must be filed directly with the office of the service having administrative control over the record of proceeding. The notice of appeal must be accompanied by the appropriate filing fee and Form EOIR-27, if the individual is represented. An appeal filed after the time period will be dismissed by the BIA for lack of jurisdiction. In In re Liadov, 12 for example, the Board held that neither the INA nor its implementing regulations grant the Board authority to extend the thirty-day time limit for filing an appeal to the Board, and although the Board may certify a case to itself where exceptional circumstances are present, a short delay by an overnight delivery service is not in and of itself a rare or extraordinary event that would warrant consideration of an untimely appeal on certification. The Ninth Circuit, however, has rejected the Board s position that the thirty-day deadline for filing a notice of appeal is jurisdictional. 13 In so doing, the court reaffirmed its position in prior cases that an untimely appeal may be considered constructively filed in a timely manner under certain rare circumstances. 14 In this case, the express delivery service erred and delivered the appeal a day late. The court observed that Congress did not set the thirty-day time limit at issue, the regulation does not say that it is jurisdictional, and the BIA itself does not treat it as jurisdictional (since it may sua sponte decide to C.F.R In re Liadov, 23 I. & N. Dec. 990 (BIA Sept. 12, 2006). 13. Irigoyen-Briones v. Holder, 644 F.3d 943 (9th Cir. 2011). 14. See, e.g., Oh v. Gonzales, 406 F.3d 611 (9th Cir. 2005). 8 6

7 Administrative and Judicial Review 8:2.2 exercise its authority). The Second Circuit reached the same conclusion in Zhong Guang Sun v. U.S. Department of Justice. 15 The notice of appeal must identify the reasons for the appeal to avoid summary dismissal. 16 The statement must identify the findings of fact or the conclusions of law that are being challenged. When the appeal is from a denial of discretionary relief, the appeal must also state whether the alleged error relates to statutory grounds of eligibility or to the exercise of discretion. The BIA has interpreted the regulations to contain strict specificity requirements. 17 Finally, the appeal must indicate whether the individual desires oral argument and whether he or she will be filing a separate written brief. An appellant alleging that the appeal merits review by a three-member BIA panel should identify the specific factual or legal basis for that contention (see below). The request for oral argument will not be granted if the case is assigned for disposition by a single Board member. With regard to an appeal of an IJ decision, the brief must be submitted directly to the Board. 18 The individual has twenty-one days to file a brief, and the Board may extend this period for up to ninety days for good cause. With regard to appeals from decisions of USCIS, briefs must be filed directly with the USCIS office having administrative control over the file. 19 The individual has twenty-one days to file a brief. Failure to file a brief may lead to summary dismissal of the appeal. 20 On the other hand, the Board should consider all relevant factors in support of a petitioner s contention that he or she did not receive a briefing schedule, such as whether the schedule was sent by regular or certified mail. 21 [B] Stay of Removal and Unlawful Removal During Appeal Removal is stayed pending a direct appeal filed with the BIA. 22 This automatic stay does not apply with regard to motions to reopen or reconsider. The Board has stated that the unlawful removal of an individual during the pendency of a direct appeal from a removal order in violation of 8 C.F.R (a) does not deprive it of jurisdiction to review the appeal. 23 DHS admitted that it had removed the respondent in error. 15. Zhong Guang Sun v. U.S. Dep t of Justice, 421 F.3d 105 (2d Cir. 2005) C.F.R (b). 17. In re Valencia, 19 I. & N. Dec. 354 (BIA Feb. 14, 1986) C.F.R (c)(1). 19. Id. 3.3(c)(2). 20. See Bulatovic v. Holder, 351 F. App x 978 (6th Cir. 2009). 21. Dakaj v. Holder, 580 F.3d 479 (7th Cir. 2009) C.F.R (a). 23. In re Diaz-Garcia, 25 I. & N. Dec. 794 (BIA May 14, 2012). (Fragomen, Rel. #2, 10/16) 8 7

8 8:2.2 FRAGOMEN ON IMMIGRATION FUNDAMENTALS Nonetheless, based on that removal, DHS argued that the respondent s appeal had been withdrawn because the removal of the respondent constitutes a departure (citing 8 C.F.R ) and the Board therefore lacked jurisdiction over the matter. The Board rejected this argument, noting that a withdrawal does not occur where the alleged departure occurs because of an unlawful removal unless the appeal has been waived. 24 [C] Summary Dismissal The BIA may summarily dismiss an appeal in which: (1) the party fails to specify the reasons for the appeal; (2) the only reason for the appeal involves a finding of fact or a conclusion of law that was conceded by that party at a prior proceeding; (3) the appeal is from an order that granted the party the relief that had been requested; (4) the appeal is filed for an improper purpose, such as to cause unnecessary delay, or the appeal lacks an arguable basis in law or fact; (5) the appeal does not fall within the BIA s jurisdiction; (6) the appeal is untimely or barred by an affirmative waiver of the right of appeal; or (7) the appeal or is expressly excluded by statute or regulation. 25 The Board s authority to summarily dismiss an appeal based on the specificity requirements of the regulations has generally been upheld in federal court. 26 The Tenth Circuit has stated that due process does not require that the specificity requirements under the regulations should be relaxed for pro se applicants who lack a perfect command of English. 27 In contrast, a court held that summary dismissal was not appropriate when the petitioner s statement in the notice of appeal 24. The Board observed that several courts have also held that a removal must be lawful for the withdrawal of the appeal to be effective and that a forcible removal is not a departure. See, e.g., Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990); Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009) C.F.R. 3.1(d)(2)(i)(A). 26. See Partovi-Dailami v. INS, 978 F.2d 1265 (9th Cir. 1992); Reyes-Mendoza v. INS, 774 F.2d 1364 (9th Cir. 1985); Townsend v. U.S. Dep t of Justice INS, 799 F.2d 179 (5th Cir. 1986); Bonne-Annee v. INS, 810 F.2d 1077 (11th Cir. 1987); Lozada v. INS, 857 F.2d 10 (1st Cir. 1988); Toquero v. INS, 956 F.2d 193 (9th Cir. 1992). 27. Nazakat v. INS, 981 F.2d 1146 (10th Cir. 1992). 8 8

9 Administrative and Judicial Review 8:2.2 adequately informed the Board of the aspects of the IJ s decision that were incorrect and why they were incorrect. 28 Another court held that summary dismissal of an appeal was improper when the inadequacy of the appeal was caused in part by the immigration judge. 29 The Ninth Circuit has stated that the lack of notice concerning the possibility of summary dismissal on Form EOIR-26, the Board s strict notice of appeal requirements, and the failure to give any advance warning before an appeal is dismissed can result in a due process violation. 30 Summary dismissals based on the ground that the appeal is frivolous and filed solely for the purpose of delay must be based on a review of the record. 31 [D] Standard of Review Findings of fact made by an IJ will not be reviewed de novo but rather will be reviewed to determine whether they are clearly erroneous. 32 Such findings may be overturned only if the Board finds that the IJ s conclusions were clearly in error. This rule applies also to IJ findings regarding the credibility of witnesses during removal proceedings. Conclusions regarding questions of law and discretionary judgments made by IJs are reviewed de novo by the Board. The rule barring de novo review of factual determinations made by an IJ has taken on greater importance as a result of the changes made by the REAL ID Act of The 2005 law grants IJs wide latitude in making credibility determinations based on indirect evidence, including the demeanor of the applicant during removal proceedings, any inconsistencies in the testimony and other evidence presented to support the asylum claim, and any inaccuracies or falsehoods included in the applicant s testimony. Even minor discrepancies may be relied upon. The law has had an adverse impact on the ability of asylum applicants to successfully challenge negative credibility determinations. One avenue for relief is a situation where the Board overturns a positive credibility determination made by an IJ. Courts have cited 8 C.F.R (d)(3)(i) in holding that the BIA should give deference to positive credibility determinations made by IJs. 33 The courts have reasoned the Board commits legal error by making its own factual 28. Elramly v. INS, 978 F.2d 1265 (9th Cir. 1992). 29. Ketema v. INS, 14 F.3d 595 (4th Cir. 1994). 30. Padilla v. INS, 21 F.3d 970 (9th Cir. 1994). 31. Medrano-Villatoro v. INS, 866 F.2d 132 (5th Cir. 1989) C.F.R (d)(3). 33. See, e.g., Kabba v. Mukasey, 530 F.3d 1239 (10th Cir. 2008); Hashmi v. Attorney Gen., 531 F.3d 256 (3d Cir. 2008); Alvarado de Rodriguez v. Holder, 585 F.3d 227 (5th Cir. 2009); Brezilien v. Holder, 565 F.3d 1163 (9th Cir. 2009); Guzman v. Holder, 568 F.3d 61 (2d Cir. 2009); De La Rosa v. Holder, 598 F.3d 103 (2d Cir. 2010); Kaplun v. Attorney Gen., 602 F.3d 260 (3d Cir. (Fragomen, Rel. #2, 10/16) 8 9

10 8:2.2 FRAGOMEN ON IMMIGRATION FUNDAMENTALS determination and engaging in de novo review of an IJ s factual findings. The Board must review these findings only to determine if they are clearly erroneous. The BIA may find an IJ s factual finding to be clearly erroneous if it is illogical or implausible or without support in inferences that may be drawn from the facts in the record. When credibility determinations are at issue, the courts have stated that even greater deference is to be accorded to the IJ s factual findings because only the trial judge is aware of the variations in demeanor and tone of voice that bear heavily on the credibility of the witness. All decisions made by USCIS officers, including findings of fact, may be reviewed de novo by the Board. As a general rule, the Board will not accept new evidence on appeal. A party seeking to submit new evidence must file a motion to remand. The Board can, however, take administrative notice of commonly known facts such as current events or the contents of official documents. 34 Some controversy has developed concerning the BIA s authority to take administrative notice of facts outside the record. This authority is often used in connection with asylum claims in which the Board takes account of the nature and the change in government in an asylum applicant s homeland in considering whether an individual has a well-founded fear of persecution. Courts have held that the taking of official notice of governmental changes violates an individual s right to examine and rebut evidence when the Board does not give the individual an opportunity to contest the significance of the facts. Courts have taken varied views, however, on whether an opportunity to contest the noticed facts is present in particular circumstances. Some courts take the view that no due process violation exists because a motion to reopen before the Board provides petitioners an opportunity to be heard on the effect of the changed conditions on their asylum claims. 35 Other courts have held, on the other hand, that a motion to reopen is inadequate for the petitioners to obtain an opportunity to be heard on the effect of the changed conditions on their asylum claims ); Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012); Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012); Flores v. Holder, 699 F.3d 998 (8th Cir. 2012); Zhou Hua Zhu v. U.S. Attorney Gen., 703 F.3d 1303 (11th Cir. 2013) C.F.R (d)(3)(iv). 35. Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir. 1991); Rivera-Cruz v. INS, 948 F.2d 962 (5th Cir. 1991); Gutierrez-Roque v. INS, 954 F.2d 769 (D.C. Cir. 1992); Wojcik v. INS, 951 F.2d 172 (8th Cir. 1991); Rhoa-Zamora v. INS, 971 F.2d 26 (7th Cir. 1992); Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993). 36. Ulloa v. INS, 944 F.2d 905 (6th Cir. 1991); Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir. 1992); see also Sarria-Sibaja v. INS, 990 F.2d

11 Administrative and Judicial Review 8:2.2 The BIA has stated that it need not follow a ruling by a federal court, other than rulings of the Supreme Court, in all jurisdictions. Instead, the Board has held that it may apply its own construction in all other jurisdictions, while applying the court s ruling in other cases arising within the jurisdiction of that court. 37 [E] Rules Streamlining BIA Case Management Rules reorganizing the BIA and streamlining appellate procedures were issued in August Under the revised case management system, all cases must be assigned to a single Board member unless the case is appropriate for review by a three-member panel. 38 Cases are initially reviewed by a screening panel, and the case must first be reviewed to determine if the appeal is subject to summary dismissal. If the case is not summarily dismissed, the case will be assigned to a single Board member for disposition unless a case meets the standards for assignment to a three-member panel under the standards set forth below. The single Board member may: (1) adjudicate the appeal on the merits; (2) summarily dismiss the appeal (under the standards discussed above); or (3) refer the case to a three-member panel if appropriate. 39 In adjudicating an appeal on the merits, the rules also authorize the single Board member to affirm without opinion the decision of the USCIS or the IJ. 40 If the single Board member determines that the case is not appropriate for affirmance without opinion, the member must issue an opinion affirming, modifying, or remanding the decision under review, or, alternatively, designate the case for a decision by a three-member panel if appropriate. 41 The rules permit review by a three-member panel only if such adjudication is necessary to: (1) settle inconsistencies among the rulings of different immigration judges; (9th Cir. 1993); Perez-Teran v. INS 992 F.2d 1219 (9th Cir. 1993); Kahssai v. INS, 16 F.3d 323 (9th Cir. 1994); Getachew v. INS, 25 F.3d 841 (9th Cir. 1994); Llana-Castellon v. INS, 16 F.3d 1093 (10th Cir. 1994). 37. In re K-S-, 20 I. & N. Dec. 715 (BIA Oct. 5, 1993) C.F.R (e). 39. Id (e)(3). 40. Id (e)(4). 41. Id (e)(5). (Fragomen, Rel. #2, 10/16) 8 11

12 8:2.2 FRAGOMEN ON IMMIGRATION FUNDAMENTALS (2) establish a precedent construing the meaning of laws, regulations, or procedures; (3) review a decision by an IJ or the USCIS that is not in conformity with the law or with applicable precedents; (4) resolve a case or controversy of major national import; (5) review a clearly erroneous factual determination by an IJ; or (6) reverse the decision of an IJ or the USCIS, other than one that may be reversed by a single Board member. The rules provide that, except in exigent circumstances, a single Board member must dispose of an appeal within ninety days of completion of the record, and a three-member panel must dispose of the appeal within 180 days. 42 In exigent cases, the chairman of the Board may grant an extension of up to sixty days. NOTE: The August 2002 streamlining rules have created much controversy. The regulations were criticized for removing the BIA s authority to review IJ fact-finding de novo, requiring a higher percentage of appeals be decided by single Board members, authorizing use of affirmances without opinion, and setting strict time limits on Board decisions. These changes, some have argued, have contributed to a trend in which poorly reasoned IJ decisions have been subject only to limited review, which, in turn, has led to more appeals filed in federal court. [F] Final Decision The Board issues a written decision for each case, which is the final administrative determination on the case for purposes of judicial review. The regulations contain a procedure, however, by which a decision can be certified to the attorney general for his or her review. 43 The attorney general will prepare a written decision on certification, which is transmitted to the Board for further disposition. Selected decisions designated by the Board may serve as precedents. All decisions issued by the attorney general serve as precedents. The rules 42. Id (e)(8). 43. Id (h). 8 12

13 Administrative and Judicial Review 8:2.3 also permit the secretary of Homeland Security to submit cases to the attorney general for designation as precedents. 44 8:2.3 Motion to Reopen or Reconsider [A] Generally An individual may file a motion to reopen or reconsider a decision of the immigration judge on the basis of new evidence, a new interpretation of law, or research indicating that the IJ s interpretation of law was erroneous. 45 The individual may also submit a motion to reopen or reconsider a decision of the Board. 46 The rules provide that a motion to reconsider must specify the errors of fact or law in the prior decision and must be supported by pertinent authority. 47 A motion to reopen must state the new facts that will be proved at a hearing if the motion is granted and must be supported by affidavits or other evidentiary material. 48 A motion to reopen for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen will not be granted unless the evidence sought to be offered is material and was not available and therefore could not have been discovered or presented at the former hearing. Furthermore, a motion to reopen to apply for any form of discretionary relief will not be granted if the individual s right to apply for such relief was fully explained to him or her and an opportunity to apply was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. A motion to reopen or reconsider cannot be made subsequent to an individual s departure from the United States. In addition, any departure from the United States occurring after the filing of a motion to reopen or a motion to reconsider constitutes a withdrawal of such motion. 49 Some courts have ruled, however, that INA section 240(c)(7)(A) and (C) (which repealed the statutory bar to judicial review of deportation orders when the person has departed the country and authorizes motions) rendered the regulatory post-departure bar on a motion to reopen invalid Id (i). 45. Id Id Id (b)(1), (b)(2). 48. Id (c)(1), (b)(3). 49. Id (d), (b)(1). 50. William v. Gonzales, 499 F.3d 329 (4th Cir. 2007); Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009); Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010); Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010). (Fragomen, Rel. #2, 10/16) 8 13

14 [B] Practising Law Institute 8:2.3 FRAGOMEN ON IMMIGRATION FUNDAMENTALS Applications for Relief The Board has held that a motion to reopen will not be granted unless the respondent establishes a prima facie case of eligibility for the underlying relief sought. 51 An individual demonstrates prima facie eligibility for relief when the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied. With regard to motions to reopen for purposes of submitting adjustment applications, the Board has held that the underlying visa petition must be approved before the Board will consider a motion to reopen for adjustment. 52 On the other hand, a motion to reopen to apply for adjustment of status based on a marriage entered into after the commencement of removal proceedings may be granted in the exercise of discretion notwithstanding the pendency of an unadjudicated visa petition filed on the respondent s behalf where (1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred on the basis that the movant has overstayed a grant of voluntary departure or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent s marriage is bona fide; and (5) the government either does not oppose the motion or bases its opposition solely on the unapproved petition. 53 [C] Motions Based on Ineffective Assistance of Counsel In In re Lozada, 54 the Board held that a motion to reopen based upon a claim of ineffective assistance of counsel must include an affidavit of the respondent specifying the representation agreement. In addition, counsel whose competence is being challenged must be informed of the allegations. Finally, the motion reflect whether a complaint has been filed with the appropriate disciplinary authorities with respect to any violation of counsel s ethical or legal responsibilities, and if not, why not. 51. In re S-V-, 22 I. & N. Dec (BIA May 9, 2000). 52. In re H-A-, 22 I. & N. Dec. 728 (BIA May 25, 1999). 53. In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA Mar. 6, 2002). 54. In re Lozada, 19 I. & N. Dec. 637 (BIA Apr. 13, 1988). 8 14

15 Administrative and Judicial Review 8:2.3 Note that Attorney General Eric Holder has withdrawn a decision issued in January 2009 by former Attorney General Michael Mukasey that would have overruled In re Lozada and other long-standing policies regarding motions to reopen based on ineffective assistance of counsel claims. 55 The latest decision states that establishing the framework for adjudicating such motions is a matter of great importance that, the attorney general asserted, should be undertaken through a rule-making process. Accordingly, Attorney General Holder states that the EOIR will initiate rulemaking procedures on the right to relief for ineffective counsel in deportation proceedings. Until such rules are issued, the decision instructs the Board and IJs to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel, namely the standards established in Lozada. [D] Time and Numerical Limitations The rules specify that only one motion to reconsider may be filed. 56 The motion must be filed within thirty days after the entry of the IJ s decision with the Immigration Court having administrative control over the record of proceedings. 57 A motion to reconsider a decision of the Board must be filed with the Board within thirty days after the mailing of the Board s decision. 58 With some exceptions, an individual may file only one motion to reopen removal proceedings in each case after a final administrative decision. 59 The motion to reopen must be filed no later than ninety days after the date of the final administrative decision of the immigration judge or the Board. 60 The IJ s decision becomes a final administrative order when the person waives his or her right to appeal. If an appeal is filed, the decision of the Board is the final administrative order in the case. These limitations do not apply when: (1) the motion to reopen filed to rescind a removal order entered in absentia; (2) the motion to reopen is filed to apply or reapply for asylum based on changed country conditions; or (3) the motion to reopen is agreed upon by all parties In re Compean, 25 I. & N. Dec. 1 (Att y Gen. 2009) C.F.R (b)(2), (b)(1). 57. Id (b)(1). 58. Id (b)(2). 59. Id (c)(2), (b)(1). 60. In re Susma, 22 I. & N. Dec. 947 (BIA June 24, 1999) (per curiam) C.F.R (c)(3), (b)(4). (Fragomen, Rel. #2, 10/16) 8 15

16 8:2.3 FRAGOMEN ON IMMIGRATION FUNDAMENTALS The Board also has the discretion to reopen or reconsider cases sua sponte. 62 In considering whether to reopen or reconsider cases sua sponte, the Board has stated that it will invoke this authority only sparingly, treating it as an extraordinary remedy reserved for truly exceptional situations. 63 The Second Circuit has held that the ninetyday time limit for filing a motion to reopen is subject to equitable tolling in appropriate cases, for example, due to ineffective assistance of counsel. 64 With regard to changed country conditions, one court remanded a matter to the BIA to consider the petitioner s argument that her parents threat of a forced marriage constituted a changed circumstance warranting an untimely motion to reopen. 65 The court noted that the regulation does not restrict the concept of changed circumstances to some kind of broad social or political change in the country, such as a new governing party, as opposed to a more personal or local change. Similarly, another ruled that the Board abused its discretion in denying a motion when it failed to consider new evidence regarding increased enforcement of a country s coercive family planning measures, including forced sterilizations and abortions. 66 [E] Filing Procedures and Stay of Removal Order Motions to reopen or reconsider a decision of an immigration judge must be filed with the immigration court having administrative control over the record of the proceeding. 67 A motion to reconsider or reopen a final order of removal entered by the Board relating to a matter initially decided by an immigration judge must be filed directly with the Board. 68 In the case of a matter initially decided by the USCIS, the motion must be filed with the USCIS office having administrative control over the record of proceeding. 69 The filing of a motion to reopen or reconsider does not automatically stay the execution of the order. 70 The only exception is with regard to a motion to reopen filed with the immigration court to rescind an order of deportation entered in absentia. In all other cases, the individual may apply for a stay of removal with the immigration judge in the case. If 62. Id (a). 63. In re X-G-W-, 22 I. & N. Dec. 71 (BIA June 25, 1998). 64. Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000). 65. Joseph v. Holder, 579 F.3d 827 (7th Cir. 2009). 66. Mei Ya Zhang v. U.S. Attorney Gen., 572 F.3d 1316 (11th Cir. 2009) C.F.R (b)(1)(ii). 68. Id (g)(2)(i). 69. Id (g)(2)(ii). 70. Id (f), (b)(1)(v). 8 16

17 Administrative and Judicial Review 8:2.4 the immigration judge refuses to grant a stay of removal, an emergency stay application can be made directly to the Board. 71 8:2.4 Motions to Rescind an In Absentia Order [A] Generally No direct administrative appeal may be filed with respect to an order of removal entered in absentia, but an individual may file a motion to reopen in order to rescind such an order. 72 The motion must be filed: (1) within 180 days after the date of the order of removal entered by the IJ, and in such cases the person must demonstrate that the failure to appear was because of exceptional circumstances beyond the control of the individual (for example, serious illness of the individual or death of an immediate relative); or (2) at any time if the person demonstrates that he or she did not receive notice of the time and place of the hearings and the person had provided the DHS with an address and telephone number at which he or she could be contacted, or the individual demonstrates that he or she was in federal or state custody and his or her failure to appear was through no fault of the individual. A filing of such a motion stays removal pending the decision of the IJ. 73 The motion must be filed with the immigration court having administrative control over the record of the proceedings. 74 An immigration judge s denial of such a motion may be appealed directly to the Board. [B] Exceptional Circumstances The Board has stated that exceptional circumstances justifying a failure to appear are present when the individual established that the delay was caused by an illness in his immediate family. 75 A failure to appear was also justified when a claim of ineffective assistance of counsel was supported by a declaration indicating that the notice of the hearing was never received. 76 In contrast, the Board has held that an individual s unsuccessful communication with her attorney did not justify the failure to appear at the hearing because the person failed to file a complaint against former counsel or adequately explain why the appropriate disciplinary authorities were not notified as required by 71. Id (b). 72. INA 239(b)(5)(C). 73. Id. 240(b)(5)(C) C.F.R (b)(4)(ii). 75. In re Singh, 21 I. & N. Dec. 998 (BIA Aug. 11, 1997). 76. In re N-K- & V-S-, 21 I. & N. Dec. 879 (BIA Mar. 13, 1997). (Fragomen, Rel. #2, 10/16) 8 17

18 8:2.4 FRAGOMEN ON IMMIGRATION FUNDAMENTALS In re Lozada. 77 In other cases, the BIA has held that a claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation on the basis of exceptional circumstances. 78 The First and Ninth Circuits have held that the 180-day time limit for challenging in absentia orders is subject to equitable tolling in appropriate cases. 79 In contrast, the Eleventh Circuit has held that the 180-day deadline is mandatory and jurisdictional, and consequently is not subject to equitable tolling for ineffective assistance of counsel. 80 [C] Failure to Receiving Hearing Notice The Board has ruled that, when an IJ adjudicates a respondent s motion to rescind an in absentia order of removal based on a claim that a notice sent by regular mail to the most recent address provided was not received, the IJ should: (1) presume delivery of the notice but apply a weaker presumption than the presumption established when documents are sent by certified mail; and (2) consider all relevant evidence to determine whether the weaker presumption has been overcome. 81 The Board stated that the evidentiary standard set forth in prior case law, which establishes a strong presumption of effective service of a notice of hearing, applies only when a notice from an immigration court or the DHS is sent by certified mail. The Board also ruled that all relevant evidence submitted to overcome the weaker presumption of delivery must be considered. Applying these principles, the Board held that the respondent overcame the presumption of delivery of a notice of hearing that was sent by regular mail where he submitted affidavits indicating that he did not receive the notice, had previously filed an asylum application and appeared for his first removal hearing, and exercised due diligence in promptly obtaining counsel and requesting reopening of the proceedings. Applying this analysis, the Board ruled in another case that in absentia removal proceedings should be reopened because the respondent overcame the presumption of delivery of a notice to appear that was sent by regular mail by submitting an affidavit stating 77. See In re Cecilia Rivera-Claros, 21 I. & N. Dec. 599 (BIA Oct. 3, 1996), aff d, 122 F.3d 1062 (4th Cir. 1997). 78. In re Lei, 22 I. & N. Dec. 113 (BIA July 16, 1998); In re A-A-, 22 I. & N. Dec. 140 (BIA July 16, 1998). 79. Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999); Jobe v. INS, 238 F.3d 96 (1st Cir. 2001). 80. Anin v. Reno, 188 F.3d 1273 (11th Cir. 1999). 81. In re M-R-A-, 24 I. & N. Dec. 665 (BIA Oct. 31, 2008); see also Gasca- Rodriguez v. Holder, 322 F. App x 447 (6th Cir. 2009); Ba v. Holder, 561 F.3d 604 (6th Cir. 2009). 8 18

19 Administrative and Judicial Review 8:3.1 that he did not receive the notice and that he has continued to reside at the address to which it was sent, as well as other circumstantial evidence indicating that he had an incentive to appear and by exercising due diligence in promptly seeking to redress the situation by obtaining counsel and requesting reopening of the proceedings. 82 [D] Effect of Departure The Board has held that an individual s departure from the United States while under an outstanding order of deportation or removal issued in absentia does not deprive the IJ of jurisdiction to entertain a motion to reopen to rescind the order if the motion is premised upon lack of notice. 83 For purposes of INA section 240(b)(5)(C)(ii) (which allows for rescission if the person was in federal or state custody at the time of the scheduled hearing and the failure to appear was through no fault of the alien ), the Board has ruled that the purpose of the statute is to prevent individuals in state or federal custody at the time of their hearings from being ordered removed in absentia when they are unable to attend their hearings as a result of the incarceration. 84 8:3 USCIS Appellate Authority and Procedure Some determinations by USCIS officers on petitions, applications, and other matters are subject to appeal within the USCIS. Appeal authority for other determinations made by the USCIS is vested in the EOIR. The division in administrative appeal authority between the USCIS and the EOIR follows no specific pattern, although in general any appeal relating to nonimmigrant benefits, naturalization, and citizenship benefits or rights, and employment-related immigrant and nonimmigrant status remains within the USCIS, while most appeals regarding denial of family-based immigration benefits go to the BIA. All appellate authority remaining within the USCIS is set forth in 8 C.F.R (f)(3)(iii). In practice, the USCIS appellate authority resides with the Chief of the Administrative Appeals Office (AAO); any exercise of appellate authority within the USCIS is made by the AAO. 8:3.1 Authority: Types of Cases Through its Administrative Appeals Office, the USCIS has retained exclusive appellate jurisdiction to review a wide variety of its own initial determinations on petitions, applications, and other matters. 82. In re C-R-C-, 24 I. & N. Dec. 677 (BIA Oct. 31, 2008). 83. In re Bulnes, 25 I. & N. Dec. 57 (BIA July 23, 2009). 84. In re Evra, 25 I. & N. Dec. 79 (BIA Sept. 21, 2009). (Fragomen, Rel. #2, 10/16) 8 19

20 8:3.1 FRAGOMEN ON IMMIGRATION FUNDAMENTALS Specifically, 8 C.F.R (f)(3)(iii) lists thirty-nine types of appeals that come under the appellate jurisdiction of the USCIS. The AAO is the exclusive administrative appellate body having jurisdiction to review denials of a number of petitions and applications relating to prospective immigrants. For example, denials of employment-based petitions or petitions for classification as a special immigrant or entrepreneur under 8 C.F.R and can be appealed to the AAO, except when the denial of the employment-based petition is based upon lack of a labor certification. USCIS adjudication of petitions based on highly specialized family relationships are also subject to review by the AAO. These include: (1) petitions to classify Amerasian children as children of U.S. citizens, pursuant to Public Law ; (2) petitions by U.S. citizens to classify an orphan as a qualified immigrant and applications for advance processing of orphan petitions; (3) self-petitions filed by abused spouses and children of U.S. citizens or permanent residents; and (4) adjustment applications when denied because the applicant failed to establish eligibility for a bona fide marriage exemption when the marriage occurred during removal proceedings. A decision to revoke the approval of any immigrant visa petition that would be subject to review by the AAO is also subject to review by the AAO. Several other USCIS actions affecting permanent residents are subject to AAO review, including: (1) a denial of an application for a reentry permit; and (2) a denial of the application to preserve continuity of residence for naturalization purposes under INA section 316(b). Nonimmigrant visa petitions, required for employers who seek to hire foreign nationals to work temporarily in the United States in the H, L, O, D, Q, R, or TN nonimmigrant categories, are subject to appellate review by the AAO. The AAO, however, cannot review denials of extensions of stay or change of status involving these nonimmigrant categories. The AAO is also responsible for appeals from USCIS decisions revoking a nonimmigrant visa petition approval. Nonimmigrant visa petitions submitted in order for an individual to be classified in the K category as a fiancé(e) of a U.S. citizen are also subject to AAO review. A DHS decision that an individual has breached and forfeited a bond that has been posted to assure the person s compliance with the terms of nonimmigrant admission is appealable to the AAO. 8 20

21 Administrative and Judicial Review 8:3.2 USCIS decisions on various applications for waivers of inadmissibility or other bars on conferral of immigration benefits may be reviewed by the AAO. These include: (1) denials of waivers of inadmissibility under section 212(h) and (i) of the Act; (2) denials of waivers of the two-year foreign residence requirement made applicable to some persons in the J nonimmigrant category by section 212(e) of the Act; and (3) denials of permission to reapply for admission to the United States after a prior removal. Finally, the AAO has appellate authority over: (1) applications for documents relating to naturalization, most notably applications for certificates of citizenship; (2) petitions of schools to be approved for the acceptance of foreign students and decisions withdrawing such approval; (3) applications for Temporary Protected Status; (4) petitions for special immigrant juveniles; (5) applications for T nonimmigrant status; (6) petitions for armed forces special immigrants; (7) requests for participation as a regional center under 8 C.F.R (m); and (8) terminations of participation as a regional center under 8 C.F.R (m). 8:3.2 Appeal Procedure When a determination is made by the USCIS to deny a petition or application, or to revoke a previously conferred benefit, the regulations call for the USCIS to give notice of the right to appeal when an appeal right exists. 85 The notice must inform the affected party that an appeal must be taken within thirty days after service of the decision. To make the appeal, the affected party must file Form I-290B (Notice of Appeal), together with the filing fee, with the USCIS office indicated in the decision or notice. 86 A brief may be submitted with the form or C.F.R (a)(1)(iii). 86. Id (a). (Fragomen, Rel. #2, 10/16) 8 21