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FIVE THINGS
YOU NEED TO KNOW ABOUT YOUR NINTH CIRCUIT APPEAL
Anyone
involved in the immigration law environment, whether as a lawyer or
a client, will notice quickly that immigration court is different from
other US courts. For example, there are few, if any, rigid procedural
rules. While most federal judges are voted upon by the Senate, an Immigration
Judge (“IJ”) is chosen exclusively by the Executive branch, and
his or her rulings often reflects the attitudes of the President appointing
them. This is because immigration courts are not independent “courts”
at all- they part of a collection of administrative agencies charged
with applying U.S. immigration laws. This includes the Board of Immigration
Appeals (or “BIA”), located in Falls Church, VA, which hears appeals
from Immigration Judges’ rulings.
At
some point, however, you do have the right to have your case presented
to a panel of federal circuit judges. An immigrant who receives an adverse
decision from the BIA may appeal it to the local Circuit Court of Appeals.
For anyone in the western states, including California, Arizona, Nevada,
Washington and Oregon, your appeal must be to the Ninth Circuit Court
of Appeals. The bulk of Ninth Circuit immigration appeals come from
one of two types of cases. The first type is denials of asylum; the
second type is removal orders following a criminal conviction. If your
case falls within either of these areas, it is important to understand
several points, even before you have to decide whether to appeal:
- The
Ninth Circuit cannot review every error in your case. Congress has
severely restricted the grounds upon which you can appeal to the Ninth
Circuit. Sometimes, the IJ will incorrectly determine that there was
not enough evidence to prove your case. In other cases, the judge will
incorrectly state the law. Federal courts have no jurisdiction to review
errors of fact, but do have jurisdiction to review errors of law. However,
whether something is a “question of law”, a “question of fact,”
or something in between, depends on how your attorney characterizes
the issue.
- The Ninth Circuit
hears lots of cases like yours. For each of the last several years,
immigration cases have represented almost 40% of the Ninth Circuit’s
total caseload. Many of these cases will involve petitioners with common
names: Singh, Kaur, Li, Mohammed. They also involve common factual situations:
“I was forced to join the Eritrean Army and escaped at night,” or
“I was threatened with sterilization in China and fled my village”
are stories that the judge hears again and again. Any judge who sees
your story as “cookie-cutter” is less likely to believe it or pay
attention to the important differences and unique legal issues that
characterize your appeal. It is the responsibility of your attorneys
at each stage to paint a detailed picture of your situation that cannot
be ignored.
- Wait times can
be very long. Due to the volume of immigration appeals before the
Ninth Circuit at any one time, it may take the Court years to decide
your appeal. For example, as of the summer of 2008, the Office of the
Staff Attorney was still working up petitions for review filed in 2005.
The Staff Attorney is a group of lawyers who, due to the backlog, brief
and present cases to the judges. The backlog is not due to the Court
or to your attorney. Rather, it is due to changes in the law by Congress
and changes in the thoroughness with which the BIA reviews administrative
appeals.
- Few cases receive
an oral argument or lengthy decision.
Most immigration appeals seek to attack credibility findings, deal with
jurisdictional questions, or review the validity of the law the IJ and
the BIA used to decide your appeal. Consequently, appeals that do not
deal with “new” or relatively difficult questions of law are usually
briefed in the Office of the Staff Attorney. These cases often receive
no oral argument, and only a brief “memorandum”-style opinion. Thus,
the success or failure of your appeal often rests entirely on the ability
of your attorney to prepare a thorough, well-written brief of the legal
issues in your case.
- You don’t automatically
get to stay in the U.S. As foolish as it may sound, you do not have
the right to stay in the U.S. while your appeal is pending. Once the
BIA issues a final decision, you can be removed by the authorities within
30 days. In order to stay, your attorney needs to file a motion to stay
the removal along with the appeal. The Supreme Court recently stated
that these motions should not be granted automatically, so your attorney
must make a convincing argument to the Court that being removed would
constitute a special hardship to you. Remember, once you are deported,
it may be impossible to get back!
Because the Supreme Court almost
never takes immigration cases, the Ninth Circuit is your final chance
to appeal an adverse immigration ruling. Even if your appeal succeeds,
and the case is sent back to the agency, you will still need to win
again there in order to stay in the U.S. Our firm is equipped to help
you from the beginning of your immigration case right up through the
Ninth Circuit appeal. Do not hesitate to contact us, no matter what
your circumstances!
The
information contained in this article is provided for informational
purposes only, and should not be construed as legal advice on any
subject matter. No recipients of content from this article, clients or
otherwise, should act or refrain from acting on the basis of any
content included in the site without seeking the appropriate legal or
other professional advice on the particular facts and circumstances at
issue from an attorney licensed in the recipient's state. Shah
Peerally is the managing for the Law Offices of Shah Peerally located
in Fremont CA. The office areas of practice are Immigration Law,
Criminal Law and Family Law. www.peerallylaw.com Ph:510 742 5887
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