| Would the mere filing of a timely "petition for review" in the court of appeals prevent ICE from carrying-out the deportation of the noncitizen before the federal court decides the petition? |
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| "A mighty woman with a torch, whose flame is the imprisoned lightning, and her name Mother of Exiles." |
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The short answer is "No"- the mere act of filing a timely Petition for Review (i.e., within 30 days from the order of the BIA), will not prevent the immigration authorities from effecting the deportation of the noncitizen. A motion for a "stay" of the final order of deportation will have to be requested when filing the Petition for Judicial Review in the corresponding United States Court of Appeals to prevent the immigration authorities from carrying-out the deportation of the noncitizen prematurely. The reason for this is because since the enactment of the 1996 amendments to the Immigration and Nationality Act ("INA") on April 1, 1997, there is no longer an automatic stay available to a noncitizen filing a Petition for Review as it existed before the 1996 amendments to the INA. At present therefore, agents from the Immigration & Customs Enforcement ("ICE") are empowered with the necessary authority to arrest the noncitizen even though he/she has filed a timely Petition for Review and the federal court has not issue a final decision on the petition. This means the ICE agents can actually effect the deportation of the noncitizen at anytime even if the United States Court of Appeals has not yet decided the Petition for Review.
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But Why Would ICE be Able to Effect the Deportation of the Noncitizen When the Federal Court has not yet Decided the Merits of the Petition?
In order to help you understand this, consider that before the 1996 amendments to the Immigration and Nationality Act, the law then required the federal courts to dismiss the petition for review of a noncitizen who was no longer physically present in the United States. In other words, the federal courts were prohibited from accepting and considering a petition for review unless the noncitizen was physically present in the United States. The noncitizen's deportation therefore would cause the federal courts to lose the authority to consider the petition and will be required to dismiss the petition for lack of jurisdiction. The point here is to explain that after the 1996 amendments mentioned above, the laws no longer require that the noncitizen be physically present for the federal courts to consider a timely petition for review. Consistent with this change in the law, if the noncitizen prevails ultimately on her petition for review, the federal court will issue a grant of the petition and the federal government would be required to accept the noncitizen request for reentry to the United States, where applicable.
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But first, what is a stay?
A stay is a preliminary or initial order from the federal court reviewing the petition for review preventing agents of ICE from executing the administratively "final order" of deportation issued by the BIA, until further order of that reviewing court. The reviewing court is the United States Court of Appeals for the particular circuit that has jurisdiction over the location where the administrative deportation proceedings where completed. For example, if the deportation proceedings before the immigration judge took place in Manhattan, New York, the appropriate federal circuit court in charge of reviewing the "final order" of the BIA (after it reviewed the administrative appeal from the order of the immigration judge in Manhattan) is the United States Court of Appeal for the Second Circuit. If, the deportation proceedings before the immigration judge took place in Norwalk, New Jersey, then, the appropriate federal circuit court in charge of reviewing that final order of the BIA is the United States Court of Appeal for the Third Circuit, and so on.
And a stay order then means...
That the federal government (ICE) is prohibited from carrying-out the deportation order of the BIA until the federal reviewing court decides the petition on the merits (meaning, until it comes to a final decision on the petition). For example, once the BIA issues a denial of a noncitizen's appeal from an order of an Immigration Judge that order of the BIA becomes a "final administrative order" or "final order" of the administrative agency. At this stage of the proceedings, absent an order that is obtainable from the United States Court of Appeals (the reviewing court) staying the final order of deportation of the BIA, ICE will be free to deport the noncitizen immediately.
The automatic stay that existed for several decades before was eliminated by the 1996 amendments to the Immigration and Nationality Act. And keep in mind that you cannot bypass the administrative review process before the BIA because judicial review is not available to a noncitizen who has not exhausted her administrative review process before the BIA.
Consequently, since ICE agents can deport the noncitizen at anytime after the BIA issues its final order of deportation or removal, the only thing that can prevent ICE agents from deporting or removing the noncitizen whose order of deportation or removal became final is another order "staying" the execution (preventing the carrying-out of the deportation) while the federal court takes a look (reviews) at what occurred during the administrative proceedings.
And that's what a stay is!
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In Practical Terms However, Only Those Noncitizens Out of Custody can Really Benefit From a Stay Order Pending the Federal Court Review Process
If a noncitizen remains free from mandatory ICE custody (meaning is not in some federal detention facility) while her petition for review is pending before the federal circuit court of appeals, it is in this case scenario that a stay order is the most beneficial to her. Why? Because she can continue to work and to support her family, she can continue to contribute to the family's set schedule of monthly expenses including the ability to pay for her attorneys' legal fees, and because she will be permitted to continue to take care of her minor children, her spouse etcetera where applicable. Conversely, if she remains under the mandatory custody of the federal government while her federal court case is pending, the benefits from a stay order are less significant and obviously so, because she will be unable to accomplish all of that, which she would be able to accomplish if she is free from the severe restrictions of custody.
When are Noncitizen Considered to be Subject to Mandatory Detention?
A noncitizen who has been convicted of an aggravated felony (a term of art consisting of numerous selective type of convictions and/or attempts to commit any of the criminal acts enumerated in the law) will be "subject to" mandatory federal detention after ICE apprehends the noncitizen immediately upon coming into contact with him or her. Although different rules apply when the noncitizen is in ICE detention while litigating her case administratively (before the immigration court or the BIA) this portion of this article below deals exclusively with the detention of noncitizens whom already received a "final order" of removal from the BIA.
Mandatory detention after receipt of a final order of removal means that while the noncitizen's case is pending before the United States Court of Appeals, the noncitizen will be required to remain in the custody of the federal detention facility (in most cases) until her case is decided by federal circuit court. The argument by the government goes somewhat like this— the noncitizen who has already received a final order of removal from the BIA, is closer to her final days in the United States and therefore poses a higher risk of flight if released from detention. And you should know however that each region (circuit) of the United States views the government's reasoning differently; some follow it with devotion and others, thankfully, view it with healthy scrutiny.
The Ninth Circuit is at the vanguard on applying a healthy dozes of scrutiny and skepticism to the government's reasoning on mandatory detention, and today (March 7, 2011), the Ninth Circuit decided a mandatory detention case expanding its previous holding in Casas-Castrillon to Diouff v. Napolitano reasserting that true mandatory detention in the Ninth Circuit is rather a very small period of time.
As noted above, several dozens of criminal convictions qualify as "aggravated felonies" and to give you an example, consider that a noncitizen that has been found guilty of offering for sale a tiny marijuana cigarette ("joint") will be classified as an "aggravated felon" just the same as a similar individual who is convicted for offering for sale a truckload of serious controlled substances, such as heroin, cocaine, methamphetamine and several dozens of other controlled substances.
In conclusion, our immigration laws view as severely more serious the idea that a noncitizen would engage in the "trafficking" of controlled substances (the selling or intending to sell a controlled substance) than it views mere "possession" of any controlled substances for one's own personal use. This does not mean however that a noncitizen convicted of possession of a controlled substance is not going to be subject to deportation because the contrary is true. Rather, it means that if the conviction is only for possession of a controlled substance, the noncitizen may be eligible to request an immigration judge to forgive him if the noncitizen meets certain specified conditions and the immigration judge is convinced that the nonctizen deserves a second chance. But, when the conviction is for "trafficking" on any controlled substance, the noncitizen is automatically not eligible to request any forgiveness from an immigration judge and must be deported as a result, unless either the noncitizen can go back to the criminal court where he was convicted and is able to obtain his or her case reopened (something that is only available in a very narrow set of circumstances and is very difficult to accomplish) or, the noncitizen demonstrates that his deportation will more likely than not will cause him to be persecuted or tortured in his home country.
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The Local ICE Practices, Policies, Guidelines and Procedures After a Final Order has been Issued Vary from Region to Region Within the United States
There should be no surprise that the practices, policies, guidelines and procedures with respect to how the local ICE operates are not uniform throughout the United States. Yes, they vary from region to region. Lets consider a typical example to provide more content to this statement. Assume first that the noncitizen appeals a decision of an immigration judge to the BIA but in her appeal she only raises arguments that involve discretionary decisions (i.e., the judge abuse her discretion in not granting the noncitizen's applications for adjustment of status and abuse her discretion in concluding she did not merit the grant of a waiver).
Then assume further that she could have also raised the argument that the immigration judge misinterpreted or misapplied the federal regulations and/or the law in her case at the same time she raised the issue of the discretionary decision.
In this case scenario, the noncitizen will have a "weak" or "weaker case" if "not fatal" in her petition for judicial review before the United States Court of Appeals--not only because the federal courts have greater powers in deciding questions regarding the interpretation of the federal laws, and therefore raising those issues before the court is a stronger claim than raising a claim based solely on abuse of discretion--but also because the federal courts cannot consider the issue when it was not presented to the BIA in the first instance.
Although the federal courts are the ultimate interpreters of immigration laws, not the BIA, in this case a federal court would have no authority (we call it jurisdiction) to review (consider) any claim raised by that noncitizen with regards to the misinterpretation or misapplication of the federal rules or laws in her case, because she did not raise that same argument to the BIA, the BIA had exclusive authority to decide the question, and the federal courts are not permitted to review arguments raised or made to them for the first time.
There are sound reasons for this rule. The purpose behind is to allow the orderly adjudication of all claims by requiring the appellant to first raise all issues directly to the BIA (we call this "exhausting the remedies available"), so that in turn, the BIA can exercise its administrative review authority and to employ its expertise over the immigration laws and federal immigration regulations to resolve the question presented.
There are exceptions to what the BIA can rule upon. For example, the BIA cannot question the constitutionality (constitutional validity) of the immigration laws and regulations which it is delegated to enforce. As to these questions, there is no requirement that they be first raised with the BIA because (among other reasons) it would be futile given that the BIA is powerless to decide the constitutionality of the laws it has been delegated to enforce. A good example of these issues is when a noncitizen raises a challenge before the BIA that a certain federal rule violates the equal protection clause of the federal constitution. The BIA will always respond in its decision that it has no power to pass upon such issue.
The Laws Affecting Stay Requests by Noncitizens Also Vary from Region to Region Within the Federal Circuits of the United States
After the BIA issues a final order on a noncitizen's appeal, the noncitizen in most cases can file a "petition for review" with the corresponding federal circuit court of appeals, which is controlled by the location where the original Immigration Judge's order was completed. For example, if a noncitizen receives an order of deportation against her in Norwalk, New Jersey, and that noncitizen took an (administrative) appeal to the BIA, after the BIA rejects the appeal of the noncitizen, she may file a petition for (judicial) review before the United States Court of Appeals for the Third Circuit, which has exclusive jurisdiction over the location (Norwalk, New Jersey) where the original proceedings were completed before the Office of the Immigration Judge in Norwalk, New Jersey.
There are a total of eleven circuits in the United States that have jurisdiction (authority) to consider and decide petitions for review filed by noncitizens from final orders of the BIA. Each of these circuits in turn expands its jurisdictional territory over several states across the United States (remember there are 51 states and only 11 circuits, discounting the federal district of the District of Columbia). The largest of these circuits is the United States Court of Appeals for the Ninth Circuit, covering nine (9) different states in the west and two (2) other territories, Guam and the Northern Mariana Islands.
The First Circuit covers the New England states of Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.
The Second Circuit covers Connecticut, New York, and Vermont.
The Third Circuit covers Delaware, New Jersey, Pennsylvania and the U.S. Virgin Islands.
The Fourth Circuit covers Maryland, North Carolina, South Carolina, Virginia and West Virginia.
The Fifth Circuit covers Louisiana, Mississippi and Texas.
The Sixth Circuit covers Kentucky, Michigan, Ohio and Tennessee.
The Seventh Circuit covers Illinois, Indiana, and Wisconsin.
The Eighth Circuit covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
The Ninth Circuit covers the following states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. In addition, it covers the territorial possessions of Guam and Northern Mariana Islands.
The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming, and,
The Eleventh Circuit covers Alabama, Florida and Georgia.
A Brief History of our Immigration Laws. They Are Not Always Consistent Among the Circuits. Frequently, Creating Splits Among the Circuits Over What Should be the Uniform Interpretation of the Immigration Laws of the United States
Caveat: We make reference below to a major decision from one of the federal circuits to illustrate the point we wish to make about creating splits among the federal courts. The case is Lujan-Armendariz and was decided by the Ninth Circuit in 2000. But on July 14, 2011, the Ninth Circuit reversed itself in Nunez-Reyes v. Holder, by essentially admitting it improperly applied the doctrine of equal protection to Lujan-Armendariz. We will keep the article below unchanged because despite the recent reversal and disappearance of a split among the circuits on the one issue described below, the article below continues to serve as an illustration of how splits among the federal circuits are created, and how they will likely be resolved, albeit this time, it did not need the Supreme Court's intervention because the Ninth Circuit reversed itself.
The Congress with the stroke a pen from the President enacts all of our laws including among them our immigration laws. The Attorney General of the United States thereafter promulgates rules (the federal regulations) designed to implement those laws, but ultimately, it is the federal circuits that are entrusted with the final word—i.e., by interpreting those laws enacted and created by Congress and the President's pen. That is the mechanical cycle of how laws are enacted, defined and redefined in our judicial system in the United States.
But the role of the federal circuits of the United States is key, even though they frequently are at odds with each other. Take for example the question of when a conviction for a crime in state court is to be considered a conviction for immigration purposes. In the 1996 amendments to the INA, for the very first time the United States immigration laws defined what a conviction was for purposes of immigration law. The Attorney General then promulgated rules (federal regulations) implementing what the Attorney General believed was the dictate of the 1996 amendments. Ever since however, there has been a split among the federal circuits in what is the final say on what a state conviction means or how it is interpreted under immigration law.
More specifically, the United States Court of Appeals for the Ninth Circuit in a decision entered in 2000 in Lujan-Armendaris v. INS, that federal circuit held that a conviction that has been expunged under state law may be considered equivalent to a conviction under the Federal First Offenders Program, which means that if a noncitizen who would likely be deported for suffering a conviction in state court for possession of a controlled substance for personal use cannot be used in deportation proceedings against the noncitizen because it is the equivalent of a conviction that was expunged under the Federal First Offenders Program if convicted in a federal court.
What this means in short, is that noncitizens who suffer a conviction in state court for possession of a controlled substance for personal use in either of the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington may successfully prevent the ICE from deporting them because any of these states falls under the jurisdiction of the Ninth Circuit. And the Ninth Circuit has held that such a conviction that was expunged may not be used against the noncitizen if the noncitizen would have been eligible for an expungment under the Federal First Offenders Program had the noncitizen been convicted in a federal court.
But this rule is not the same in other circuits. Thus, if you were convicted for the same offense of possession of a controlled substance for personal use in the state of Texas for example, you would still be deported from the United States because the Fifth Circuit Court of Appeals, which as jurisdiction over cases completed in Texas, does not agree with the Ninth Circuit's Lujan-Armendariz case. This creates a split among the federal circuits because noncitizens who are convicted of a controlled substance for personal use in California do not get deported for that conviction while the same counterparts in Texas do.
Eventually, splits among circuits are decided by the Supreme Court of the United States, whence it decides to put the splits to rest. But until then, the laws are applied differently depending on the federal circuit in which the noncitizen's deportation proceedings are completed.
As a vivid example of this cycle, in 1996 the United States Congress enacted a law that proscribed for the mandatory detention of any noncitizen considered under the laws as an "aggravated felon" (do not alarm yourself, the word aggravated felon applies for example to a noncitizen who is convicted of an attempt to sell one cigarette of marijuana). Since the mandatory detention of aggravated felons of the 1996 provision was enacted, the Attorney General of the United States promulgated rules stating in sum, that no noncitizen who was labeled an aggravated felon could be released from detention until the noncitizen was eventually deported.
Since then, the various federal circuits of the United States, and eventually the United States Supreme Court interpreted the mandatory detention provisions to actually mean that a noncitizen shall be continued in detention while she is fighting her case in court, but for a period much shorter than which was envisioned by the Attorney General when promulgating the rules of detention.
Today, actually since 2001 when the Supreme Court of the United States decided the case of Zadvidas v. Davis, the Supreme Court of the United States interpreted the immigration laws and the federal regulations dealing with the mandatory detention of aggravated felons and held that contrary to what it was believed to be the case, the mandatory detention applies only to an original period of 90 days and a reasonable period thereafter of another 90 days. If the government cannot effect the removal of the noncitizen within those 6 months, then it must release the noncitizen from detention.
The Supreme Court and the federal circuit courts are the ultimate interpreter of the laws of the United States and this was the intention of the founding fathers when they wrote the United States Constitution. The point we are trying to deliver here is that this short explanation above represents how the federal laws of the United States evolve from their original enactment by Congress, to the final interpretation of them by the federal circuit courts or the Supreme Court. The federal circuits of the United States form the vast part of the interpretation process, as they are the courts which for the most part decide the correct interpretation of all laws of the United States.
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