Federal courts have long struggled with the odd construction of the Immigration and Nationality Act (INA) and the many confusing changes Congress has made to it since 1952. One of these problem areas is federal court jurisdiction when the Board of Immigration Appeals (BIA) reverses the decision of an immigration judge granting relief from removal.
The INA extends authority to enter removal orders only to special inquiry officers, which are immigration judges, and not to the Board of Immigration Appeals (BIA). Any attempt by the BIA to enter an order of removal is a "legal nullity" because it lacks the legal authority to do so. Noriega-Lopez v. Ashcroft, 335 F.3d 874, 883 (8th Cir. 2003).
Before the REAL ID Act of 2005, some circuit courts of appeals including the Ninth Circuit would construe a petition for review to the circuit court of appeal as a petition for habeas corpus relief under 28 USC 2241 and transfer the case to the district court. But the REAL ID Act of 2005 removed this option by stripping the district court of jurisdiction to hear habeas corpus petitions. 8 USC 1252(a)(5) ("a petition for review filed with an appropriate court of appeals... shall be the sole and exclusive means for judicial review of an order of removal issued under any provision of this Act").
In 2007 the Ninth Circuit Court of Appeals found that it had jurisdiction to review a BIA order reversing an immigration judge's grant of asylum because the BIA's decision was not an "order of deportation" but merely a reinstatement of the immigration judge's order of deportation. Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007). The court reasoned that:
The IJ's grant of relief, whether in the form of asylum or... on other grounds, necessarily requires the IJ to have already determined that the alien is deportable. Under the INA, this determination by the IJ constitutes an 'order of deportation.'
Therefore the BIA does not enter an order of deportation in the first instance when it orders the alien removed. Instead the BIA restates the order of removal already entered by the immigration judge that would have taken effect but for the judge granting cancellation of removal. "Removing the impediment to that order's enforcement is entirely consistent with the BIA's appellate role."
For this reason, the circuit courts of appeal have jurisdiction to consider a petition for review of a BIA order reversing an immigration judge's grant of relief, whether asylum, withholding of removal, cancellation of removal, or some other relief that requires the immigration judge to first find the alien removable.
After reversing an immigration judge's grant of relief from removal, the BIA often remands the case to the immigration judge to determine the alien's eligibility for voluntary departure. This creates the awkward question of whether to appeal BIA's order reversing the judge's relief, or to appeal the order issued by the immigration judge. Lolong v. Gonzales suggests that it is possible to appeal the BIA's order directly.
A BIA order remanding a case to the immigration judge for consideration of voluntary departure does not render the Board's decision reversing the immigration judge's grant of relief non-final so as to deprive the circuit court of appellate jurisdiction. Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995). In other words, if BIA reverses the immigration judge's grant of relief and remands for consideration of voluntary departure, the alien has a right to appeal the BIA's order reversing the immigration judge without waiting for the immigration judge's findings regarding voluntary departure. And the alien may indeed have to appeal that order to avoid missing the filing deadline. If the BIA's order reversing the immigration judge is the final order, then the alien has 30 days to appeal it and waiting for the immigration judge to rule on voluntary departure may run out the clock on the deadline to appeal.
The circuit courts' tortured efforts to find a way to make Congress' obvious drafting problems not run afoul of the Suspension Clause result in several interesting questions:
Usually, the time to file a notice of appeal or a motion to reopen begins to run when an immigration judge issues an order of removal. The time to file an appeal from a decision of the immigration judge is 30 days and the time to file a motion to reopen is 90 days. The circuit courts' tortured efforts to read Congress' oddly drafted statute in a way that does not violate the Suspension Clause results in real confusion about when an alien may appeal or move to reopen an order.
If the BIA is really "reinstating" or "removing an impediment from" the immigration judge's removal order, is the time to file an appeal or motion to reopen merely tolled during the BIA appeal process, or does the clock restart when the BIA remands the case to the immigration judge to "re-enter" an order of removal?