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:
- 1. 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.
- 2. 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.
- 3. 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.
- 4. 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.
- 5. 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!