Ninth (9th) Circuit Appeals
Immigration court is different from other U.S. courts in many ways – there are fewer strict procedural rules, and immigration judges are chosen by the executive branch rather than voted on by the Senate so an immigration judge’s rulings reflect the attitude of the President who appointed them. Also, immigration courts and the Board of Immigration Appeals (BIA) are not independent courts but administrative agencies that implement U.S. immigration laws.
If an applicant were to receive an adverse decision from the BIA on their appeal, they can move forward to appeal to the local Circuit Court of Appeals. In California, Arizona, Nevada, Washington and Oregon, appeals following BIA rulings go to the Ninth Circuit Court of Appeals.
There are usually two types of immigration-related appeals heard by the Ninth Circuit:
- Denials of asylum
- Removal orders after a criminal conviction
Some notes, before you decide whether or not to appeal to the Ninth Circuit:
- Once a BIA appeal is denied, you can be removed from the country within 30 days. Your attorney must file a motion to stay the removal due to special hardship, in addition to an appeal to the Ninth Circuit.
- In the last several years, 40% of the cases heard by the Ninth Circuit have been immigration cases. It’s important for your attorney to emphasize unique details and specific legal issues that set the applicant apart from the numerous other asylum or removal order appeals heard by the court.
- An attorney can only appeal to the Ninth Circuit on a “question of law” not a “question of fact” so the federal court cannot review an immigration judge’s incorrect rulings on the facts of your case, only errors of law.
- Sometimes appeals to the Ninth Circuit can take several years to be heard due to a long backlog. This began to happen when Congress revised immigration law to change the way BIA reviews administrative appeals. To address this backlog, the Office of the Staff Attorney will brief more common cases in a short memorandum style opinion. So it is important for the attorney to prepare an exceptionally clear brief of the legal issues in your case, and to emphasize difficult questions of law or “new” issues that are unusual about your appeal so that the case is looked at more thoroughly.
- When appeals to the Ninth Circuit Court of Appeals are denied, that’s the end of the road to remain in the country legally.
- If an appeal to the Ninth Circuit is successful, your case must be tried again in immigration court and won in order for you to stay in the U.S.
To schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.
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