Ninth Circuit Court Appeal
As a top immigration law firm in Oregon for filing an appeal with the Ninth Circuit Court of Appeals, we are presenting some of the most important questions and answers related to the appeals process. If you or a loved one needs legal help with appealing to the Ninth Circuit Court, then please contact the experienced appellate lawyers of Bailey Immigration to discuss your case.
We’re going to provide an overview on appealing your removal case to the Ninth Circuit Court of Appeals. For many people in removal proceedings, this is an important moment because it is practically the last chance for a court to overturn an immigration judge’s denial. However, before talking about this late stage of deportation court, it is important to cover the earlier stages and how we got here.
WHAT HAPPENS AFTER AN IMMIGRATION JUDGE DENIES MY CLAIM?
If an immigration judge denies your claim, it does not have to be the end of the road. A person whose claim gets denied has 30 days to appeal the judge’s decision to a higher court. This higher court is called the Board of Immigration Appeals or “BIA.” To appeal, use form EOIR 26 and follow the directions. The BIA is on the East Coast and the appeal must be received before or on the due date. A $110 filing fee must also accompany EOIR form 26 with a check or money order made payable to ‘US Department of Justice.’
On appeal, the BIA will look at whether the immigration judge’s decision was wrong. When reconsidering the immigration judge’s decision, the BIA can only look at the same evidence that was given to the immigration judge. You cannot give new evidence to the BIA on appeal. The only new documents that the BIA is allowed to look at are the written arguments from your lawyer and the Department of Homeland Security lawyer and the court transcript and exhibits the parties submitted at Immigration Court. If there is new evidence for your case, then a motion to remand based on the new evidence may be made to the Board of Immigration Appeals.
HOW LONG WILL IT TAKE FOR THE BOARD OF IMMIGRATION APPEALS TO DECIDE MY CASE?
Due to the large backlog, it may take a year or more for the BIA to actually make a decision on your appeal. Fortunately, during that time, you are allowed to remain in the United States. Filing an appeal with the BIA automatically puts your deportation on hold until a decision has been made. If you were previously eligible for work permits, it is likely that you can renew your permits and continue to work.
WHAT HAPPENS AFTER THE BOARD OF IMMIGRATION APPEALS MAKES ITS DECISION?
Eventually, the BIA will make a decision. BIA decisions are often complicated and can affect your case in many ways. The best possible outcome is the BIA overturns the immigration judge’s decision and grants you relief from deportation—the case then goes back to the Immigration Court to enter that decision. However, the BIA might also decide that the immigration judge should take a second look at your case. If that happens, your case will be sent back to the immigration judge for a new decision. Depending on the mistake, you might be asked to provide more evidence, testimony, or legal arguments.
Of course, there is also the possibility that the BIA denies your appeal. In this scenario, the BIA confirms the immigration judge’s decision and issues a deportation order. If the BIA denied your appeal, you have 30 days to file an appeal with a higher court. This time around, the higher court is known as the Ninth Circuit Court of Appeals if the Immigration Court that made the decision is in Oregon, Washington, California, Alaska, Arizona, Hawaii, Idaho, Montana or Nevada. For Immigration Courts in other states, it will be a different Federal Court of Appeals.
WHAT IS THE NINTH CIRCUIT COURT OF APPEALS?
The Ninth Circuit is a federal appeals court that decides immigration cases for people whose cases were decided in the western part of the United States. This includes Washington, Oregon, California, Alaska, Arizona, Hawaii, Idaho, Montana and Nevada.
HOW DO I FILE AN APPEAL WITH THE NINTH CIRCUIT COURT OF APPEALS?
To appeal the BIA’s denial, you or your attorney must file a “Petition for Review ” with the Ninth Circuit Court of Appeals. The Petition briefly explains why the decision by the Board of Immigration Appeals is wrong. It is important that a competent immigration attorney prepares your Petition. If the Petition is filed incorrectly, or the Court is unconvinced by the argument, then your appeal can be dismissed before you even get a chance to fully argue your case.
WILL FILING AN APPEAL WITH THE NINTH CIRCUIT AUTOMATICALLY DELAY MY DEPORTATION?
No. Filing an appeal with the Ninth Circuit Court of Appeals does not automatically delay an order of deportation. If you want to remain inside the United States while the Ninth Circuit Court looks at your appeal, then you must also file a “Motion to Stay Removal” along with your appeal. In this Motion, you must explain to the Court why your case is strong and why you will suffer harm if you are deported before the appeal is decided.
WHAT DOES IT COST TO FILE AN APPEAL WITH THE NINTH CIRCUIT?
There is a $500 filing fee for filing immigration appeals. In addition to the filing fee, there are also attorney fees for preparing the Petition, Motion to Stay Removal, communicating with attorneys from the Department of Justice, and writing the eventual Legal Brief.
WHAT KIND OF EVIDENCE CAN THE NINTH CIRCUIT COURT LOOK AT?
Just like the BIA, the Ninth Circuit Court of Appeals can only look at the same evidence that the immigration judge looked at when writing the first decision. You cannot send new documents or evidence to the Court on appeal. The only new documents the Court will read are the legal arguments written by your attorney.
HOW LONG WILL MY APPEAL WITH THE NINTH CIRCUIT TAKE?
An immigration case at the Ninth Circuit can take a long time. Due to the large backlog of appeals, the average appeal can take over two years to reach a decision. During that time, you or your attorney will prepare a written legal argument for the Court to read. In a rare number of cases, the Ninth Circuit Court might ask you or your attorney to come appear in-person and give an oral argument in support of your case. After roughly two years, the Court will issue it’s decision.
WHAT IF I WIN MY APPEAL WITH THE NINTH CIRCUIT COURT?
If you win your case in the Ninth Circuit, the Court may simply grant you permission to stay in the United States. However, in a lot of cases, the Court will send your case back down to a lower court for a new decision from the BIA or even the immigration judge. It is possible that the BIA or immigration judge denies your case a second time.
Further, you or your attorney may request Mediation, and work with the Government attorney to Judicially Administratively Close your case. If granted, this puts your case on hold for an unknown period of time. If you are unlikely to win your case, this is a good option to be able to stay in the United States while the case is Judicially Administratively Closed.
WHAT IF I LOSE MY APPEAL WITH THE NINTH CIRCUIT COURT?
After losing your case with the Ninth Circuit Court of Appeals, your options will begin to narrow. First, you can request for a rehearing within 45 days of the decision. This asks the same three judges to reconsider their decision because it was a mistake. Second, you can file a rehearing “en banc,” which asks for a larger group of Ninth Circuit judges to reconsider the court’s decision. However, a petition for rehearing en banc is very rarely granted. Finally, you can ask the Supreme Court to overrule the Ninth Circuit’s decision by filing for a “writ of certiorari” to the Supreme Court. To be clear, it is extremely rare that any of these types of requests are granted. What this means is that a denial from the Ninth Circuit Court is often the end of the road for many people in removal proceedings.
After the Ninth Circuit writes the decision, it takes roughly 45 days for that decision to become final. In the coming weeks after receiving the final order of deportation, ICE will contact you and begin the deportation process.
Contact a top appellate lawyer in Oregon
If you are interested in appealing a decision from an immigration judge or the Board of Immigration Appeals, it is important that you contact an immigration attorney as soon as possible. There are important deadlines that must be met to properly file a petition for review. If you have any questions about this process or are interested in filing an appeal, we encourage you to call our offices. Attorney Diana Bailey has over 23 years experience in filing immigration appeals. Please call our office for a free consultation at our toll free number (866) 521-6422.