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Pro Se Advisory - Appealing Removal Orders in Federal Court, Immigrant Defense Project, 2005

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PRO SE ADVISORY:
APPEALING REMOVAL ORDERS IN FEDERAL COURT
On May 11, 2005, the U.S. government
adopted a law, called the REAL ID Act.
This law eliminated habeas corpus review
of orders of removal (deportation) and
changed the way that people can appeal
these orders to federal courts.
This packet discusses how to file a
petition for review to challenge your
removal order. It also discusses what will
happen to habeas petitions that were
filed before the REAL ID Act was
adopted.

IMPORTANT NOTES

!

This packet is only a preliminary guide to federal court
review of orders of removal. Some of the REAL ID
Act’s judicial review provisions will be challenged in
courts, and resulting court decisions may change the
information in this packet.

!

Everyone’s situation is different, and this packet may
not discuss special issues that apply to you. Each
federal court also has its own requirements and local
rules. You may want to seek additional legal assistance
to fully evaluate your particular case. Finally,
requirements for petitioners represented by counsel
may differ from those of pro se petitioners.

WHO CAN FILE A PETITION FOR REVIEW?
If you want a federal court to review the decision made by the Board of Immigration Appeals in
your immigration case, you should file a Petition for Review. Federal courts consider many issues
and procedural requirements when deciding challenges to deportation orders. Generally, however,
you may be able to file a petition for review if you meet all of the following requirements:
q You were placed in removal, deportation, or exclusion proceedings, or denied asylum.
q The Immigration Judge decided your case.
q You or the government appealed this decision to the Board of Immigration Appeals
(BIA), and the BIA decided against you.
q The BIA decision was dated within the last 30 days. (see page 3 for calculating the
deadline and page 9 for what to do if the BIA decision was more than 30 days ago).
You can also file a petition for review to challenge certain decisions made by the Bureau of
Immigration and Customs Enforcement (BICE) in reinstatement or expedited removal proceedings.
However, this advisory does not discuss special issues related to these petitions in detail.

This pro se advisory was prepared by Benita Jain with valuable advice from Professor Nancy Morawetz, NYU
School of Law; Beth Werlin, AILF; and Matthew Guadagno. If you have comments on the information in this
packet, please contact us at (718) 858-9658 ext. 201 or bjain@nysda.org.

WHICH BIA DECISIONS CAN BE APPEALED TO COURT OF APPEALS?
You can appeal most decisions made by the Board of Immigration Appeals (BIA). For example:
1. You lost your case in immigration court, and the BIA affirmed (agreed) with this decision.
2. You won your case in immigration court, but the BIA overturned this decision.
3. You filed a motion asking the BIA to reopen or reconsider the BIA decision, and the BIA
denied this request.
If you want to challenge more than one BIA decision, then you must file a separate petition for
review for each decision, within the deadline for that decision.
If you are not sure whether you are eligible to file a petition for review, it is probably better
to file. If you do not file a petition for review by the deadline, and later realize that you could
have challenged the removal/deportation order, it may be too late to appeal. On the other hand, if
you do file a petition for review by the deadline, you can change your mind and withdraw it later.
Also, court decisions (and sometimes legislation) often change which kinds of cases courts are
willing to review.

IF YOU HAVE A CRIMINAL CONVICTION:
You may have heard that people with certain convictions
are not allowed to file petitions for review. This was
generally true in the past. However, the REAL ID Act
changed this bar. Now, people with criminal convictions
should be able to file petitions for review – at least in
cases where they are raising constitutional and legal
issues.
As we’ve already mentioned, details on how courts will
apply this change will be clearer in the future.

IF YOU HAVE AN ASYLUM CASE:
The REAL ID Act also expanded the types of issues in
asylum cases that can be raised in a petition for review.
You should be able to raise all constitutional issues and
issues of law.

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IMPORTANT DEADLINES
This petition must be filed within 30 days of the date that the Board of Immigration Appeals
decided against you. Use the date that is printed on the BIA’s written decision.
The court must receive your petition within 30 days of the BIA decision – if you are mailing
the petition, make sure you leave enough time for delivery!

How do I know if the BIA made a decision?
If you do not file a petition for review by the 30-day
deadline, you may not be able to appeal your deportation
order! You must keep track of the BIA’s consideration of
your case, so you know as soon as it makes a decision. The
BIA should send you its decision in the mail, but people
sometimes do not receive it in time. The following steps
can help you find out whether the BIA has issued a
decision in your case:
1. Keep in regular contact with the immigration
attorney that filed your BIA appeal, even if
1.
s/he no longer represents you. The BIA
2.
often sends the decision only to the
“attorney of record.” You may want to send
the attorney a letter saying that you plan to
appeal if the BIA decides against you, so she
should make sure to notify you and/or your
3.
family as soon as it comes. Keep a record
of the letter you send to your attorney.
2. Regularly call the Executive Office for
Immigration Review hotline to find out if the
BIA has decided your case. If you are
incarcerated and unable to access this
number from your jail, then ask someone to
call this hotline for you. See sidebarà
3. Notify the Board of Immigration Appeals
and Immigration Judge about any address
change, even if you are detained. Otherwise,
they may mail the decision to the wrong
address. Keep proof that you notified the
courts of your address change. (see page 29
for BIA address change form).

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Immigration Court Hotline
1-800-898-7180.

Press “1” for English or “2” for Spanish.
Enter your 8-digit A-number. This is on
your court papers & looks like this: A99
999 999. Press “1” if the system finds
the right number, and press “1” again if
it finds the right name.
Follow
the
phone
prompts
for
information about your case.
• Press “1” for time and place of any
scheduled immigration court dates.
• Press “3” to hear when the Judge
or BIA decided your case. If you
hear that the case is “pending,”
this means that a decision has not
been made yet.
• Press “4” for more BIA appeal
information, including if the BIA
received your appeal and due dates
for briefs.
• Press “5” for address and phone
number of the immigration court
(not BIA) that decided your case.

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HOW TO PREPARE YOUR PETITION FOR REVIEW

Your petition for review package should be typed or neatly written in black or blue ink. It should
include all of the following things (described below in detail):
q The signed petition for review.
q A copy of the BIA decision. If you do not have this decision, simply state this in
your petition and forward a copy of the decision as soon as you can.
q The fee or a request for fee waiver.
q [In some situations] Motion requesting stay of deportation.
q A certificate of service.

1. Petition for Review
This is a simple form in which you are notifying the Court of Appeals that you want to appeal the
BIA decision. You do not need to include any specific legal arguments at this time. You should
always remember to include the following things in this petition:
q

A statement that you are appealing a decision by the BIA, and the type
of decision that it made.

q

A statement about whether any court has already upheld or agreed with
the BIA decision that you are appealing. For example, if you had already
appealed this BIA order in any federal court, and that court agreed with
the BIA, then your petition must disclose the name of the court, the
date of the decision, and the type of case.

q

(If you received voluntary departure) Request for stay of voluntary
departure period. If an Immigration Judge or BIA granted voluntary
departure, then you can request that the deadline for you to leave be
postponed until the Court decides your petition for review.

q

Sign the petition!

See a barebones sample petition for review on page 17 of this packet.

2. A Copy of the Decision of the Board of Immigration Appeals
You must attach a copy of this decision with your petition for review. However, do not miss the
deadline if you don’t have the decision. Instead, you should file on time, state why you cannot attach
a copy of the decision (for example, you did not receive it, the copy machine in your jail is broken,
you cannot access it in time, etc.) and then forward a copy of the BIA decision to the Court of
Appeals as soon as you can.

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3. Fee or Request for Fee Waiver
You must enclose a filing fee, which is currently $250. Some courts may grant time to submit this
fee (for example, in the Second Circuit, you have to submit the fee within 10 days after you file).
If you cannot afford the fee: You can request that the court waive
your fee (also called In Forma Pauperis, or IFP). See page 25 for a
sample request for a fee waiver. Note: If a court does not grant
your request for fee waiver, we are not certain whether the petition
will be considered filed on the day you submitted the petition or the
day you submit the fee. Check with your court to avoid missing the
deadline!

4. Motion Requesting a Stay of Deportation
If you have a final order of removal, DHS can deport you at any time. Filing the petition for review
does not stop or postpone your deportation. If you want to remain in the U.S. while the Court of
Appeals is considering your case, then you must request a stay of deportation, which is an order
by the court that temporarily prohibits the government from deporting you. If the court grants the
stay of deportation, then DHS cannot deport you until the court lifts the stay or decides the case
against you. This motion should be on a separate piece of paper, but can be submitted at the same
time as the rest of the petition for review, or submitted at a later date.
Should I file this motion?
If you are detained or otherwise have reason to believe that DHS has travel documents for
you and plans to deport you soon, then should request a stay of deportation as soon as
possible. You should tell the court why you think you are about to be deported (for example,
you have received a “bag and baggage” order, been told you will be deported soon, you are
already in immigration custody, or BICE has procured travel documents) and also why you
think you will win your case.
If you have filed a timely petition for review and are not detained, then you may want to
wait to file this motion until you receive an order to report to BICE (possibly for detention
and/or deportation) or otherwise find that BICE plans to deport you soon. At that point, you
should immediately file a request for a stay of deportation, if you have not already done so.
Note: If you do get deported after you file the petition for review, you can continue to
pursue this appeal from outside the U.S. Make sure to always notify the court of your
current address!

5. A Certificate of Service
This is a statement at the end of your petition, stating that you sent a copy of the petition to all
parties. This should include the name and address of the person/people to whom you sent it, the
manner in which you delivered it (by regular mail, certified mail, Fed-ex, hand delivery, etc.), and
the name and signature of the person who mailed or delivered it (which could be you or someone
else). Some courts will only accept certificates that include specific language – see page 18 for a
sample certificate of service.
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WHERE TO SUBMIT YOUR PETITION
You should try to make at least 9 copies of your petition for review package. (Note: Your court may
require a different number of copies, especially for pro se petitioners.)
1.

File the original and 4 copies of the entire petition for review package with the federal Court of
Appeals. This will usually be the court that covers the state where the immigration judge
decided your case. For example: if you live in New York, the Immigration Judge decided your
case in Oakdale, Louisiana and you are now detained in Alabama, you will file your petition with
the Circuit that covers Louisiana (the Fifth Circuit). See pages 15-16 for addresses of each
Court of Appeals and the states covered by each court.
If you mail the petition, be sure to get proof of mailing and delivery to keep for yourself! If
you hand-deliver the petition, have the court stamp your copy, so you have proof of delivery.

2. Send one copy to each of the following people. If you mail the copies, be sure to get proof of
mailing and delivery to keep for yourself! If you hand-deliver the copies, then have each office
stamp your copy. (Note: addresses may have changed since this advisory was written.)
q

Alberto Gonzales, Attorney General of the United States
United States Department of Justice
10th Street NW and Constitution Ave.
Washington, DC 20530

q

ICE Field Office Director
Send this copy to the office of the Bureau of Immigration and Customs Enforcement
that is in charge of the city where your immigration court case happened. The address
may be on some of the documents from your immigration court case. If you are not sure
of the address, you can also try to call the ICE office or the immigration court to get
the correct address.

q

Thomas W. Hussey, Director
Office of Immigration Litigation
Department of Justice/Civil Division
1331 Pennsylvania Ave. NW
Washington, DC 20004
OR
Only if you are filing in the Second Circuit (New York, Connecticut, and Vermont):
United States Attorney for the Southern District of New York
Civil Division
86 Chambers Street
New York, NY 10007

3. Keep one copy of everything for yourself.
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WHAT HAPPENS AFTER I FILE THE PETITION FOR REVIEW?
Once you have filed the basic petition for review described in this packet, the Court
usually sets a schedule for each side to submit its papers.
1.

First, the Court will require the government to file the “administrative record” in your
immigration case – this includes all of the papers and briefs that were submitted, all of the
decisions made, and the transcripts of every hearing in immigration court. The government
is supposed to mail you a copy of the administrative record and everything else it files.

2. The Court will usually set deadlines for each side to submit briefs, or court papers that
discuss the issues in greater detail.
o

o
o
o

If the government has already filed the administrative record, but the court has not
given you a deadline to submit your brief, then you may want to write the court to ask
for further instructions or a deadline.
In the absence of some other deadline set by the court, rules usually require that you
submit the brief within 40 days of receiving the administrative record.
If you need more time to file your papers, you can ask the court for an extension. Some
courts often grant one extension for 30 days.
Whenever you submit something to the court: put your “docket number” on the cover
and send a copy to the government’s lawyer. The government must do the same.

3. In some case, the Court also schedules an “oral argument,” or hearing for both sides to
present their cases to and answers questions from a panel of three judges. This usually will
not happen if you are detained and are not represented by an attorney.

What issues might the government raise to challenge my Petition for Review?
The government may raise a variety of issues to challenge jurisdiction, or the authority, of a
federal court to review your case. Two common issues they may raise are:
1.

Exhaustion. The federal courts generally require that you must attempt to get the
administrative agencies (example, the immigration courts) to resolve your situation before
the federal government will consider it. If you did not appeal your decision to the Board of
Immigration Appeals, the government may say that you did not “exhaust your administrative
remedies.” If you did appeal your case to the BIA, but did not raise the particular
issue/defense that you want the federal court to consider, then the government may also
say that you did not exhaust your administrative remedies.
This is a very complicated issue that will require you to do legal research into the cases that
have been decided by your circuit courts. At the minimum, you should tell the court if you
believe you did raise the issue in immigration court and/or at the BIA, even if it was in a
general way. There may be other responses – for example, some people argue that
exhaustion is not required if you are raising a constitutional issue that the BIA could not
have decided.

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2. Scope of Review. The government may say that your petition raises issues that the federal
court does not have authority to review. For example:
“Your case raises issues of fact.” An “issue of fact” asks the court to look at whether
the immigration judge/BIA made the right factual conclusions about your specific
situation. An “issue of law” is about what a law actually requires, how it should be
interpreted. Generally, the federal court is able to look at legal and Constitutional
issues, but it is not clear whether and when it can look at factual issues.
“You are asking the court to review a denial of a discretionary form of relief.” For
discretionary relief, the immigration judge/BIA decides whether they think you deserve
that relief. Cancellation of Removal, 212(c), adjustment of status, and voluntary
departure are all discretionary forms of relief - the judge must follow strict rules
about whether you are eligible to apply for these things, but the judge also has a lot of
power to determine whether someone who is eligible to apply should actually get the
relief. You can challenge a decision that you are not eligible for relief, but it is more
difficult to challenge a judge’s discretionary decision to not grant the relief (for
example, because she thinks you did not show rehabilitation or have good moral
character).
In order to avoid these common obstacles, you should try to make your claim as much about legal
issues as possible, instead of about equities/discretion.
Depending on the particular facts of your case, there may be various responses for each of these
arguments. If the government’s argument will result in your being unable to get any federal court to
look at your case or if it will take away any rights you previously had under habeas, then you can
challenge this on Constitutional grounds.

How long will it take the Court to decide my case?
It is difficult to predict how long the court will take to decide
your case. Some cases take years to decide; others are
decided more quickly. If the court thinks you were not allowed
to file the petition for review (for example, because you
missed the deadline), then it may dismiss your case quickly,
even before the sides have submitted their papers.

If I lose my case, can I file another appeal?

Depending on the reason for the loss, some courts allow people
to file a motion for rehearing, or request that the court
reconsider its decision.
You can also appeal the decision to the Supreme Court.
However, the Supreme Court takes only a handful of cases
every year and will only take cases it thinks raise important
issues, especially if lower federal courts have made conflicting
decisions on the same issue.
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IF YOU MOVE
OR GET DEPORTED
You should notify the Court of
Appeals and the government
lawyer in your case about your
new address. Otherwise, they will
continue to send documents to
your old address, and you may
miss important orders and
deadlines.
• Notify the Court even if you
are moving from one jail to
another.
• Notify the Court even if you
get deported - you can continue
to pursue your appeal from
outside the U.S.

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IF YOU MISSED THE 30-DAY FILING DEADLINE
According to the immigration statute (as amended by the REAL ID Act), you must submit a petition
for review to the Court of Appeals within 30 days. If you lost your BIA appeal more than 30 days
ago and did not file a petition for review, it will be very difficult to appeal your case.
However, you can try the following strategies, which may or may not work in your case:
q

File a Motion to Reopen with the Board of Immigration Appeals (BIA). You should also
submit a request for a stay of deportation with the BIA to ensure that you are not
deported before the case is decided. See page 19 for a sample Motion to Reopen based
on the passage of the REAL ID Act.
- A Motion to Reopen should show one of the
If you never appealed
following: new facts or evidence, ineffective
your decision to the
assistance of counsel, or changed circumstances in
BIA, and have missed
your home country (if applying for persecutionthe deadline to do so:
based relief), or lack of notice of hearing (if
you can also file a
submitting motion to Immigration Judge).
Motion to Reopen
- You must submit a Motion to Reopen within 90 days
with the Immigration
of the BIA decision. After 90 days, you can still
Judge within 90 days.
ask the BIA to reopen the case sua sponte (on its
own); however, such motions are not granted easily.
- If the BIA grants the Motion to Reopen, then you will have another opportunity to
present your case to the BIA. If the BIA decides against you again, then the 30-day
deadline to appeal that decision to the federal court starts all over again.
- If the BIA denies your Motion to Reopen, then you can appeal the denial to the
federal Court of Appeals by filing a petition for review. In this situation, however,
remember that the federal court will primarily consider whether the BIA made a
mistake by refusing to reopen your case – and will not necessarily decide whether
the underlying removal order was correct.

q

Ask the BIA to reissue its decision. If the BIA reissues its decision, then you will have
an additional 30 days from the date of the reissued decision, in which to file the
petition for review. See pages 19 and 22 for samples.

q

File the Petition for Review anyway. If you are denied because it is late, then you can
try to file a habeas petition. We don’t know if this will work – it is only a strategy to try!
Although the REAL ID Act has eliminated the right of people to file habeas petitions,
people will likely challenge denials of habeas petitions on constitutional or other grounds
or find other ways to obtain habeas review. See “Special Advisory on Habeas Petitions”
on page 10.

q

File a habeas petition (see previous bullet).

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SPECIAL ADVISORY ON HABEAS CORPUS PETITIONS:
Can I still file a habeas corpus petition?
You may have heard or read in older publications that you can challenge a removal order by filing a
writ of habeas corpus in federal district court. Unfortunately, many people will no longer be able to
file habeas corpus petitions in federal court.
Challenging Orders of Removal
Before May 11, 2005, people used to be able to challenge their removal/deportation orders by filing
habeas corpus petitions in federal district court. On May 11, 2005, Congress and President Bush
adopted the REAL ID Act. This Act eliminated the right of immigrants to file habeas petitions and
other writs in federal court to challenge removal orders. After the REAL ID Act, the only sure way
to challenge your removal/deportation order is to a file a petition for review, as already described
in this packet. NOTE: Immigrants and advocates may use other, creative arguments to get habeas
review, but this advisory doesn’t discuss these possibilities.
Challenging Detention
You should still be able to file habeas petitions to challenge unlawful detention by DHS. For
example:
o You were ordered deported, but the government has been unable to carry out the
deportation order (e.g. there is no repatriation agreement with your country of origin;
no country agrees to take you; BICE has been unable to procure travel documents for
you).
o You think you are eligible for bond, but the government has refused to give you a bond
hearing.
Challenging the REAL ID Act
As the REAL ID Act is implemented over the next few months, or even years, many of its provisions
will be challenged in federal courts. We advise you to stay informed about changes that have arisen
since this advisory was written. Although the REAL ID Act has tried to eliminate the availability of
habeas, it is possible that in the future, some federal courts will say that certain people can still
filed these petitions or that the government didn’t have the power to eliminate habeas at all.

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SPECIAL ADVISORY ON HABEAS CORPUS PETITIONS:
What happens to my habeas petition that was filed before REAL ID passed?
The REAL ID Act provides a different procedure for habeas petitions that were already filed and
pending when the REAL ID Act was adopted on May 11, 2005. If your habeas petition was
pending, then some or all of it will probably be transferred to a Circuit Court of Appeals.

To which Court of Appeals will my habeas petition be transferred?

The REAL ID Act says that the habeas petition should be transferred to the Court of Appeals
where a petition for review could have been filed.
o Usually, this means the Court of Appeals that covers the state where the Immigration
Judge decided your case. For example, if your immigration case was in Oakdale, Louisiana,
but you filed your habeas petition in the federal district court in New York, then your
habeas case will probably be transferred to the Fifth Circuit Court of Appeals, which covers
Louisiana.
o You can ask the court for a chance to submit a brief (written argument) asking that the
case not be transferred or that it remain in the Court of Appeals for the district court
where you filed. Some reasons for this may be: you and your family are there; your lawyer is
not able or willing to represent you in the new court; you already submitted all of your
papers and transferring will prolong resolution of the case. We don’t yet know how the
courts will respond to arguments like this.

Will my entire habeas petition be transferred?
This is not clear. The REAL ID Act calls for transfer of the portion of a habeas petition that
challenges removal (deportation).
o So, if your habeas petition is saying that the immigration judge and/or BIA decisions
ordering your removal/deportation were unlawful, then that will probably be transferred to
the Court of Appeals.
o If you are challenging your detention (for example, you have been ordered removed and the
government has been unable to deport you, but is continuing to detain you OR you are
challenging whether you should be detained during your immigration proceedings), then this
challenge may remain with the district court.
o If you are challenging your removal order and your detention, then the two pieces of your
case may be separated into different courts.

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The district court had given me a stay of deportation. Will this remain in effect?
This is also not clear. Some Circuit Courts have adopted rules for transferring cases that specify
what will happen to a stay of deportation. See attachments for the advisories from these courts.
o Second Circuit (Connecticut, New York, Vermont): The court “prefers” that cases should be
transferred with a stay of deportation, which will remain in effect until the Court of
Appeals removes the stay.
o Fifth Circuit (Louisiana, Mississippi, Texas): The court allows district courts to make their
own decisions about whether to grant stays of deportation before transferring cases.
o Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, Washington):
The court has ordered that if the petitioner (you) ever requested a stay of deportation
from the district court, the transfer will trigger a temporary stay of deportation.

If DHS says that the stay of deportation is no longer in effect after the transfer, you can argue
that the stay continues until that judge specifically decides to end the stay. We are not sure what
the courts’ positions will be, but here are some ideas to try to ensure that your stay will continue:
o Ask the federal district judge that is currently considering your habeas petition to continue
the stay. You can ask for a certain amount of time (for example, until the new court rules on
your stay request) or just ask the court to continue the stay until the case is resolved.
o Ask the new court to issue its own stay of deportation. You should do this immediately upon
transfer because some courts take a long time to make decisions on this issue.

My habeas case has not been transferred yet. Where should I submit my briefs?
If you need to file something more, keep filing in the same court until you get notice of transfer.

My habeas case was already decided by the federal district court in a circuit other
than where the original immigration proceeding was conducted. It is now on appeal in
the Court of Appeals. Will this be transferred?
As with most of the procedures for pending habeas cases, it is unclear what will happen to these
cases – whether they will also be transferred to the Court of Appeals where the immigration judge
had initially decided the case, or whether they will remain where they are.

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ATTACHMENTS

1.

Map of Deportation System
(page 14)

2. Contact Information for Courts of Appeals - address, phone numbers, and states covered by
each Circuit
(page 15)
3. Sample Petition for Review
(page 17)
4. Sample Certificate of Service
(page 18)
5. Sample Motion to Reopen and Reissue BIA Decision (filed with Board of Immigration Appeals)
(page 19)
6. Sample Motion to Reissue BIA Decision (filed with Board of Immigration Appeals)
(page 22)
7. Sample Motion to Federal Court for Fee Waiver (In Forma Pauperis) – this is only a sample. Your
court may have different requirements or a specific form.
(page 25)
8. Address Change Form for BIA
(page 29)
9. Orders from federal courts regarding transfers of habeas petitions after REAL ID Act
o Administrative Office of the US Courts
o 2nd Circuit Court of Appeals
o 3rd Circuit Court of Appeals
o 5th Circuit Court of Appeals
o 9th Circuit Court of Appeals

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ATTACHMENT 1: MAP OF DEPORTATION SYSTEM
Detention &
Starting a
Deportation
Bureau of Immigration
& Customs
Enforcement (BICE)
decides to initiate
deportation
proceeding. Holds
immigrant at County
Jail, Federal
Detention Center, or
Private Prison. Facility
may be anywhere in
the country. BICE
issues Notice to
Appear (charges) and
may hold immigrant
until s/he granted
bond, is ordered
released, or deported.

Immigration Judge
Bond
Hearing
If bond
eligible, sets
bond
amount.

Master
Calendar
Decides
deportability
and relief
eligibility

Individual
Hearing
Hears
applications for
relief, orders
release/
deportation.

Board of
Immigration
Appeals (BIA)
Reviews appeals of IJ
decisions filed within
30 days. Issues final
order of removal
(deportation).

District Court
Since the recently
passed REAL ID Act,
this court may now
only be able to hear
habeas corpus
petitions challenging
detention, and not
removal orders. The
REAL ID Act is likely to
be challenged.

Deportation
If immigrant has a final administrative
order of deportation, and no federal court
stay, BICE may deport him/her. Home
country (consulate) usually issues travel
documents first.
This map was
borrowed from the
“Deportation 101”
curriculum,
developed by
Families for
Freedom & NYSDA
Immigrant Defense
Project.

Home Country
Practices vary. Some governments
regularly detain, torture, and/or
monitor detainees. Homelessness
and unemployment are common.

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Circuit Court
of Appeals
Reviews appeals of
final orders of
removal (by way of
petitions for review)
if filed within 30
days of BIA
decision. Also
appeals District
Court decisions.

Supreme Court
Reviews Court of
Appeals decisions
that it chooses to
accept. Accepts less
than 5% of all cases
it is asked to review.

July 2005
Page 14 of 39

ATTACHMENT 2: CONTACT INFORMATION FOR COURTS of APPEALS
(for filing Petitions for Review)
First Circuit

Fourth Circuit

U.S. Courthouse
One Courthouse Way
Suite 2500
Boston, MA 02210
(617) 748-9057
http://www.ca1.uscourts.gov/

1100 East Main Street
Suite 501
Richmond, VA 23219
(804) 916-2700
http://www.ca4.uscourts.gov/
• PFR should include “corporate disclosure
form” (found on website). If Pro Se, court will
send form once they receive petition and fee.
If you obtain a fee waiver you do not need to
file form.
• File original and 3 copies.
• Mail motion for stay of deportation
separately from petition.

File here if your immigration proceeding was in
the following states: Maine, Massachusetts,
New Hampshire, Puerto Rico, Rhode Island

Second Circuit
File here if your immigration proceeding was in
the following states: Connecticut, New York,
Vermont
Thurgood Marshall U.S. Courthouse
40 Foley Square
Room 1803
New York, NY 10007
(212) 857-8500 (main number)
(718) 783-7002 (Pro Se Case Mgmt Team)
http://www.ca2.uscourts.gov/

File here if your immigration proceeding was in
the following states: Maryland, North Carolina,
South Carolina, Virginia, West Virginia

Fifth Circuit
File here if your immigration proceeding was in
the following states: Louisiana, Mississippi,
Texas
600 Camp Street

Third Circuit
File here if your immigration proceeding was in
the following states: Delaware, New Jersey,
Pennsylvania, Virgin Islands

New Orleans, LA 70130
(504) 310-7700
http://www.ca5.uscourts.gov/

Sixth Circuit

Office of the Clerk
U.S. Court of Appeals for the Third Circuit
21400 U.S. Courthouse
601 Market Street
Philadelphia, PA 19106-1790.
(215) 597-2995
http://www.ca3.uscourts.gov

File here if your immigration proceeding was in
the following states: Kentucky, Michigan, Ohio,
Tennessee
540 Potter Stewart U.S. Courthouse
100 East Fifth Street
Cincinnati, Ohio 45202
(513) 564-7000
http://www.ca6.uscourts.gov/internet/
• File original and 3 copies.

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Seventh Circuit
File here if your immigration proceeding was in
the following states: Illinois, Indiana, Wisconsin
U.S. Court of Appeals
Clerk’s Office, Room 2722
219 S. Dearborn Street
Chicago, IL 60604
(312) 435-5850

Tenth Circuit
File here if your immigration proceeding was in
the following states: Colorado, Kansas, New
Mexico, Oklahoma, Utah, Wyoming

http://www.ca7.uscourts.gov/
•
•

File original and 3 copies.
Pro se filers can ask to speak with pro se
clerk by calling above general number.

Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257
(303) 844-3157
http://www.ca10.uscourts.gov/
• File original and 3 copies.

Eighth Circuit
File here if your immigration proceeding was in
the following states: Arkansas, Iowa,
Minnesota, Missouri, Nebraska, North Dakota,
South Dakota

Eleventh Circuit
File here if your immigration proceeding was in
the following states: Alabama, Florida, Georgia

Thomas F. Eaglet on Courthouse
Room 24.329
111 South 10th Street
St. Louis, MO 63102
(314) 244-2400
http://www.ca8.uscourts.gov/
•

56 Forsyth Street, NW
Atlanta, GA 30303
(404) 335-6100
http://www.ca11.uscourts.gov
• Enclose copy of Notice to Appear and copy
of the order of the immigration judge with
petition for review.

File original and 3 copies.

Ninth Circuit
File here if your immigration proceeding was in
the following states: Alaska, Arizona, California,
Guam, Hawai’i, Idaho, Montana, Nevada, Mariana
Islands, Oregon, Washington
If sending petition by regular US Postal
Services:
U.S. Court of Appeals
Office of the Clerk
P.O. Box 193939
San Francisco, CA 94119-3939
If sending petition by overnight courier
services (Federal Express, Airborne, DHL, etc.):
U.S. Court of Appeals
Office of the Clerk
95 Seventh Street
San Francisco, CA 94103-1526
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Ninth Circuit, continued
(415) 556-9800 (main number)
(415) 556-9380 (Pro Se office)
http://www.ca9.uscourts.gov/
• File original and 7 copies.

u

DC Circuit

File here if your immigration proceeding was in
the Washington, DC
U. S. Court of Appeals
E. Barrett Prettyman U.S. Courthouse
333 Constitution Ave., N.W. #5423
Washington, D.C. 20001-2866
(202) 216-7280
http://www.cadc.uscourts.gov/
You should also include:
• File original and 4 copies.
• Enclose Corporate Disclosure Statement
(see online guidelines).

Phone (718) 858-9658 x201

July 2005
Page 16 of 39

ATTACHMENT 3: SAMPLE PETITION FOR REVIEW

UNITED STATES COURT OF APPEALS FOR THE _______________ CIRCUIT
______________________________
)
[
Your name
]
)
)
Petitioner,
)
)
v.
)
)
Alberto GONZALES,
)
Attorney General,
)
)
Respondent
)
)
_________________________________)

Case File No. ____________
Immigration File No.: A__________
PETITION FOR REVIEW

The above-named Petitioner hereby petitions for review by this Court of the final order of
[
choose one: removal/deportation/exclusion
] entered by the Board of Immigration
Appeals [or “Immigration and Customs Enforcement (ICE)” if you were ordered removed under INA
§241(a)(5) or INA § 238(b)] on date of decision. A copy of the decision is attached.
To date, no court has upheld the validity of the order. [Note: If another court has upheld the removal
order, then write in the name of the court, date of that court’s decision, and the kind of case.]

Dated: ______________________

Respectfully submitted,
______________________
[Your name and signature]
PRO SE

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Page 17 of 39

ATTACHMENT 4: SAMPLE CERTIFICATE OF SERVICE

UNITED STATES COURT OF APPEALS FOR THE _______________ CIRCUIT
______________________________
[

Your name

)
)
)
)
)
)
)
)
)
)
)
)

]

Petitioner,
v.
Alberto GONZALES,
Attorney General,
Respondent
______________________________

Case File No. ____________
Immigration File No.: A__________
PETITION FOR REVIEW
CERTIFICATE OF SERVICE
)

CERTIFICATE OF SERVICE
I, [____INSERT Name of person who mailed or delivered your petition_______], hereby certify
under penalty of perjury that I personally caused to be served a copy of the attached Petition for Review,
together with all attachments, by [ INSERT: hand/regular mail/certified mail/Fed Ex/DHL/etc.]
on this [
Date
] to the following individuals and addresses.

[INSERT NAMES and ADDRESSES of GOVERNMENT
OFFICIALS YOU are SERVING – also see page 6 of this packet]

Executed on ___(date)

, in ________(city, state)

.

___________________________________
[Sign this line and write your name below]

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Page 18 of 39

ATTACHMENT 5: Sample Motion to Reopen and Reissue the BIA’s Decision
NOTE: This motion is based on the following scenario: person ordered removed based on
criminal ground; no habeas petition filed; now has missed the deadline to file a petition for
review. Do not submit motion “as is” – you must fill in the blanks to cover your situation.
You must also comply with the BIA’s rules for submitting motions, which this packet does
not discuss (for example, filing fees and certificate of service).

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
FALLS CHURCH, VIRGINIA

In re:

[

Your Name

)
)
)
)
)
)
)

]

Respondent.
In [

Deportation or Removal

] Proceedings

No. A___________________
(your A#)

)
)
)
)

MOTION TO REOPEN AND REISSUE THE BIA’S DECISION
IN LIGHT OF THE REAL ID ACT

I.

INTRODUCTION
Respondent asks the BIA to reopen and reissue the [
Date
] order in this case in light of the recent
enactment of the REAL ID Act of 2005, P. L. 109-13, 119 Stat. 231 (May 11, 2005). Prior to the REAL ID Act,
Respondent was barred from filing a petition for review in the court of appeals because [ he or she
] was
found removable based on one of the criminal grounds enumerated in INA § 242(a)(2)(C). The INA, as amended by
the REAL ID Act, now provides Respondent with the opportunity to seek court of appeals review; however, because
the BIA issued the order in this case more than 30 days ago, Respondent may be barred from review. See INA §
242(b)(1) (petition must be filed within 30 days of final order). Respondent also may be unable to seek review in
the district court through a habeas petition, though he could have done so prior to the REAL ID Act. In order to
remedy this unintended adverse effect of the enactment of the REAL ID Act, Respondent requests that the Board, in
the interest of justice, reissue its order.
II.

RELEVANT PROCEDURAL HISTORY
(INSERT the date and decisions of the Immigration Judge and any BIA appeals.)

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Page 19 of 39

III.

STATUTORY AND LEGISLATIVE BACKGROUND
In 1996, Congress barred respondents with certain criminal convictions from seeking judicial review in the
court of appeals. See Anti-Terrorism and Effective Death Penalty Act (AEDPA), § 440(a), Pub. L. 104-207, 110
Stat. 3009 (April 24, 1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 306,
§ 309 Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996) codified at INA § 242(a)(2)(C) and IIRIRA § 309(c)(4)(G).
However, respondents with criminal convictions were not precluded from federal court review entirely. The
Supreme Court, in INS v. St. Cyr, 533 U.S. 289 (2001), held that respondents barred from filing a petition for review
in the court of appeals could seek review of their cases through habeas petitions, 28 U.S.C. § 2241, filed in the U.S.
district court.
On May 11, 2005, the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, was enacted. Section 106(a)
of this new law purports to eliminate habeas corpus jurisdiction over challenges to final orders of removal,
deportation, or exclusion. Congress, however, expanded the availability of court of appeals review. Specifically,
section 106(a)(1) of the REAL ID Act amended INA § 242 to include a new section INA § 242(a)(2)(D), which
says,
Nothing in subparagraph (B) or (C), or any other provision of this Act (other than this section)
which limits or eliminates judicial review, shall be construed as precluding review of
constitutional or questions of law raised upon a petition for review filed with an appropriate court
of appeals in accordance with this section.
As a result, respondents with criminal convictions who previously would have filed habeas petitions now may file
petitions for review in the court of appeals. The legislative history confirms that this provision was intended to
concentrate federal court review of all removal proceedings in the courts of appeals. See H.R. Conf. Rep. 109-72, at
2873 (2005).1 (“By placing all review in the court of appeals, Division B would provide an ‘adequate and effective’
alternative to habeas corpus.” (quoting St. Cyr, 533 U.S. at 314 n. 38)).
IV.

ARGUMENT
A.

The BIA Has Authority to Reopen and Reissue Its Decision.

Pursuant to INA § 240(c)(6) and 8 C.F.R. § 1003.2, respondents may file one motion to reopen within 90
days of the BIA’s decision. The motion “shall state the new facts that will be proven at the hearing to be held if the
motion is granted.” INA § 240(c)(6)(B). “A motion to reopen shall not be granted unless it appears to the Board
that evidence sought to be offered is material and was not available and could not have been discovered or presented
at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
Here, the new evidence Respondent offers is the enactment of the REAL ID Act. Given that the BIA
issued a decision in Respondent’s case on [
enter date
], [
He/she
] could not have presented this
evidence prior to the Board’s decision. This evidence is material because it impacts whether the Respondent can file
a petition for review in the court of appeals.
Moreover, the BIA is authorized to “take any action consistent with their authorities under the Act and the
regulations as is appropriate and necessary for the disposition of the case.” 8 C.F.R. § 1003.1(d)(ii). In addition, the
Board has discretionary equitable powers to serve the interest of justice. See e.g., Matter of G-D-, 22 I&N Dec.
1132 (BIA 1999) (stating that as long as the Board has jurisdiction, its “discretionary powers are not limited,
restricted, or qualified.”); Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998) (exercising sua sponte authority to reopen
proceedings to pursue certain asylum claims based on coerced population control policies to “serve the interest of
justice”). In fact, on numerous occasions, the Board has reissued prior decisions in the interest of justice. See
Etchu-Njang v. Gonzales, 403 F.3d 577 (8th Cir. 2004); Roy v. Ashcroft, 389 F.3d 132, 135 (5th Cir. 2004); LaraTorres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004); Firmansjah v. Ashcroft, 347 F.3d 625, 626 (7th Cir. 2003);
Lonyem v. U.S. Atty. Gen., 352 F.3d 1338, 1340 n.3 (11th Cir. 2003).
In Firmansjah, the Seventh Circuit considered the BIA’s authority to reissue decisions and the impact on
the court’s jurisdiction to review the underlying order. See 347 F.3d 626-27. The court held that “[b]ecause nothing
prevents the Board from entering a new removal order, which is subject to a fresh petition for review, we have
jurisdiction over the case and will proceed to briefing.” Id. at 627.
1

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B.

Reopening and Reissuing the Order in Respondent’s Case Satisfies the Interest of Justice
and Effectuates Congressional Intent.

Respondent now finds [
himself/herself
] subject to an adverse, and unintended, effect of the
READ ID Act. See H.R. Conf. Rep. 109-72, at 2873.2 Prior to the REAL ID Act, Respondent would have been
barred from filing a petition for review, but [
he/she
] could have filed a habeas corpus petition. Unlike a
petition for review, there is no filing deadline for a habeas petition. Compare INA § 242(b)(1) with 28 U.S.C. §
2241. Although Congress has said that individuals such as Respondent now must seek review in the court of
appeals, as opposed to the district court, Respondent may be barred from filing a petition for review because more
than thirty days have passed from the date of the BIA’s decision. See INA § 242(b)(1). This result would
undermine the intent of Congress “to give every alien a fair opportunity to obtain judicial review while restoring
order and common sense to the judicial review process.” See H.R. Conf. Rep. 109-72, at 2873. By reopening and
reissuing Respondent’s order, the BIA would provide Respondent a “fair opportunity” to seek judicial review in the
court of appeals.
Even where a person did not file a motion to reopen within the statutory deadline, the BIA has reopened
cases in extraordinary cases where there has been a significant development in the law. See, e.g., Matter of Muniz,
23 I&N Dec. at 207-08 (sua sponte reopening a case where Ninth Circuit interpreted meaning of crime of violence
differently from BIA); Matter of G-D-, 22 I&N Dec. 1132 1135-36 (BIA 1999) (declining to reopen or reconsider
sua sponte where caselaw represented only “incremental development” of the law and respondent’s case did not turn
on cited authority); Matter of X-G-W-, 22 I&N Dec. 71, 73 (BIA 1998) (statutory change in definition of “refugee”
warranted sua sponte reopening).
The REAL ID Act’s purported elimination of habeas corpus review of certain cases is a monumental
change in immigration law and a dramatic departure from the historical role of habeas corpus in reviewing the
legality of deportation. By reopening and reissuing the order in Respondent’s case, the Board will prevent
unnecessary and potentially irreparable harm to the Respondent. Otherwise, the Respondent may be deprived of all
federal court review. Reissuing the decision will effectuate Congress’ intent that Respondents have an “’adequate
and effective’ alternative to habeas corpus.”
V.

CONCLUSION
For the reasons stated above, Respondent requests that the BIA reopen and reissue the [
deportation
] order dated [
date]
.

Dated: [

Date you submit motion

removal or

]
Respectfully submitted,

[Your Name]

2

The legislative history of the REAL ID Act confirms that Congress did not intend that any person be
deprived of judicial review: under section 106, “all aliens who are ordered removed by an immigration judge will
be able to appeal to the BIA and then raise constitutional and legal challenges in the courts of appeals. No alien, not
even criminal aliens, will be deprived of judicial review of such claims.” H.R. Conf. Rep. 109-72, at 2873
(emphasis added).
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ATTACHMENT 6: Sample Motion to Reissue the BIA’s Decision
NOTE: This motion is based on the following scenario: person ordered removed based on
criminal ground; no habeas petition filed; now has missed the deadline to file a petition for
review. Do not submit motion “as is.” You must fill in the blanks to cover your situation.
You must also comply with the BIA’s rules for submitting motions, which this packet does
not discuss (for example, filing fees and certificate of service).

UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
FALLS CHURCH, VIRGINIA

In re:

[

Your Name

)
)
)
)
)
)
)

]

Respondent.
In [

Deportation or Removal

] Proceedings)

No. A___________________
(your A#)

)
)
)
)

MOTION TO REISSUE THE BIA’S DECISION
IN LIGHT OF THE REAL ID ACT
I.

INTRODUCTION
Respondent asks the BIA to reissue the [
Date
] order in this case in light of the recent enactment
of the REAL ID Act of 2005, P. L. 109-13, 119 Stat. 231 (May 11, 2005). Prior to the REAL ID Act, Respondent
was barred from filing a petition for review in the court of appeals because [
he or she
] was found
removable based on one of the criminal grounds enumerated in INA § 242(a)(2)(C). The INA, as amended by the
REAL ID Act, now provides Respondent with the opportunity to seek court of appeals review; however, because the
BIA issued the order in this case more than 30 days ago, Respondent may be barred from review. See INA §
242(b)(1) (petition must be filed within 30 days of final order). Respondent also may be unable to seek review in
the district court through a habeas petition, though he could have done so prior to the REAL ID Act. In order to
remedy this unintended adverse effect of the enactment of the REAL ID Act, Respondent requests that the Board, in
the interest of justice, reissue its order.
II.

RELEVANT PROCEDURAL HISTORY
(INSERT the date and decisions of the Immigration Judge and any BIA appeals.)

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III.

STATUTORY AND LEGIS LATIVE BACKGROUND
In 1996, Congress barred respondents with certain criminal convictions from seeking judicial review in the
court of appeals. See Anti-Terrorism and Effective Death Penalty Act (AEDPA), § 440(a), Pub. L. 104-207, 110
Stat. 3009 (April 24, 1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 306,
§ 309 Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996) codified at INA § 242(a)(2)(C) and IIRIRA § 309(c)(4)(G).
However, respondents with criminal convictions were not precluded from federal court review entirely. The
Supreme Court, in INS v. St. Cyr, 533 U.S. 289 (2001), held that respondents barred from filing a petition for review
in the court of appeals could seek review of their cases through habeas petitions, 28 U.S.C. § 2241, filed in the U.S.
district court.
On May 11, 2005, the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, was enacted. Section 106(a)
of this new law purports to eliminate habeas corpus jurisdiction over challenges to final orders of removal,
deportation, or exclusion. Congress, however, expanded the availability of court of appeals review. Specifically,
section 106(a)(1) of the REAL ID Act amended INA § 242 to include a new section INA § 242(a)(2)(D), which
says,
Nothing in subparagraph (B) or (C), or any other provision of this Act (other than this section)
which limits or eliminates judicial review, shall be construed as precluding review of
constitutional or questions of law raised upon a petition for review filed with an appropriate court
of appeals in accordance with this section.
As a result, respondents with criminal convictions who previously would have filed habeas petitions now may file
petitions for review in the court of appeals. The legislative history confirms that this provision was intended to
concentrate federal court review of all removal proceedings in the courts of appeals. See H.R. Conf. Rep. 109-72, at
2873 (2005).3 (“By placing all review in the court of appeals, Division B would provide an ‘adequate and effective’
alternative to habeas corpus.” (quoting St. Cyr, 533 U.S. at 314 n. 38)).
IV.

ARGUMENT
A.

The BIA Has Authority to Reissue Its Decision in the Interest of Justice.

Pursuant to 8 C.F.R. § 1003.1(d)(ii), the BIA is authorized to “take any action consistent with their
authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case.” 8
C.F.R. § 1003.1(d)(ii). In addition, the Board has discretionary equitable powers to serve the interest of justice. See
e.g., Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999) (stating that as long as the Board has jurisdiction, its
“discretionary powers are not limited, restricted, or qualified.”); Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998)
(exercising sua sponte authority to reopen proceedings to pursue certain asylum claims based on coerced population
control policies to “serve the interest of justice”). In fact, on numerous occasions, the Board has reissued prior
decisions in the interest of justice. See Etchu-Njang v. Gonzales, 403 F.3d 577 (8th Cir. 2004); Roy v. Ashcroft, 389
F.3d 132, 135 (5th Cir. 2004); Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004); Firmansjah v. Ashcroft,
347 F.3d 625, 626 (7th Cir. 2003); Lonyem v. U.S. Atty. Gen., 352 F.3d 1338, 1340 n.3 (11th Cir. 2003).
In Firmansjah, the Seventh Circuit considered the BIA’s authority to reissue decisions and the impact on
the court’s jurisdiction to review the underlying order. See 347 F.3d 626-27. The court held that “[b]ecause nothing
prevents the Board from entering a new removal order, which is subject to a fresh petition for review, we have
jurisdiction over the case and will proceed to briefing.” Id. at 627.

3

This report is available at:
http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2005_record&page=H2813&position=all

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B.

Reissuing the Order in Respondent’s Case Satisfies the Interest of Justice and Effectuates
Congressional Intent.

Respondent now finds [
himself/herself
] subject to an adverse, and unintended, effect of the
READ ID Act. See H.R. Conf. Rep. 109-72, at 2873.4 Prior to the REAL ID Act, Respondent would have been
barred from filing a petition for review, but [
he/she
] could have filed a habeas corpus petition. Unlike a
petition for review, there is no filing deadline for a habeas petition. Compare INA § 242(b)(1) with 28 U.S.C. §
2241. Although Congress has said that individuals such as Respondent now must seek review in the court of
appeals, as opposed to the district court, Respondent may be barred from filing a petition for review because more
than thirty days have passed from the date of the BIA’s decision. See INA § 242(b)(1). This result would
undermine the intent of Congress “to give every alien a fair opportunity to obtain judicial review while restoring
order and common sense to the judicial review process.” See H.R. Conf. Rep. 109-72, at 2873. By reissuing
Respondent’s order, the BIA would provide Respondent a “fair opportunity” to seek judicial review in the court of
appeals. See Firmansjah, 347 F.3d at 627.
The BIA’s caselaw supports Respondent’s request. The Board – in extraordinary circumstances – exercises
equitable power to sua sponte reopen or reconsider cases. The BIA has held that such exceptional circumstances
exist where there has been a significant development in the law. See, e.g., Matter of Muniz, 23 I&N Dec. at 207-08
(sua sponte reopening a case where Ninth Circuit interpreted meaning of crime of violence differently from BIA);
Matter of G-D-, 22 I&N Dec. 1132 1135-36 (BIA 1999) (declining to reopen or reconsider sua sponte where
caselaw represented only “incremental development” of the law and respondent’s case did not turn on cited
authority); Matter of X-G-W-, 22 I&N Dec. 71, 73 (BIA 1998) (statutory change in definition of “refugee” warranted
sua sponte reopening).
Although here Respondent is asking the Board to reissue the order, as opposed to reopen or reconsider the
case, the principles involved in the cases cited above are applicable. The REAL ID Act’s purported elimination of
habeas corpus review of certain cases is a monumental change in immigration law and a dramatic departure from the
historical role of habeas corpus in reviewing the legality of deportation. By reissuing the order in Respondent’s
case, the Board will prevent unnecessary and potentially irreparable harm to the Respondent. Otherwise, the
Respondent may be deprived of all federal court review. Reissuing the decision will effectuate Congress’ intent that
Respondent have an “’adequate and effective’ alternative to habeas corpus.”
V.

CONCLUSION
For the reasons stated above, Respondent reques ts that the BIA reissue the [
order dated [
date ].

Dated: [

Date you submit motion

removal or deportation

]

]
Respectfully submitted,

[Your Name]

4

The legislative history of the REAL ID Act confirms that Congress did not intend that any person be deprived of
judicial review: under section 106, “all aliens who are ordered removed by an immigration judge will be able to appeal to the
BIA and then raise constitutional and legal challenges in the courts of appeals. No alien, not even criminal aliens, will be
deprived of judicial review of such claims.” H.R. Conf. Rep. 109-72, at 2873 (emphasis added).
Produced by NYSDA Immigrant Defense Project
25 Chapel Street, Suite 703, Brooklyn, NY 11201

u

Phone (718) 858-9658 x201

July 2005
Page 24 of 39

ATTACHMENT 7: SAMPLE MOTION TO FEDERAL COURT FOR FEE WAIVER
Note: You should also attach an affidavit listing your financial information and, if you are
detained, a certified statement of the amount and activity in your prison account. The sample
affidavit on following page is from the Second Circuit Court of Appeals. Your court may use a
different form. Also, please note that where a request for fee waiver is not granted, your
court may have its own rules about whether the petition is considered filed on the date you
submitted the petition and request for fee waiver, or only upon submission of the fee.

UNITED STATES COURT OF APPEALS FOR THE _______________ CIRCUIT
_________________________________
)
[
Your name
]
)
)
Petitioner,
)
)
v.
)
)
Alberto GONZALES,
)
Attorney General,
)
)
Respondent
)
)
_________________________________)

Case File No. ____________
Immigration File No.: A__________
MOTION TO PROCEED
IN FORMA PAUPERIS

MOTION FOR PERMISSION TO PROCEED IN FORMA PAUPERIS
The above-named Petitioner hereby moves for permission to pursue his petition to review the final
order of [
choose one: removal/deportation/exclusion
] entered by the Board of
Immigration Appeals [or “Immigration and Customs Enforcement (ICE)” if you were ordered removed
under INA §241(a)(5) or INA § 238(b) in forma pauperis. Petitioner does not have the financial resources to
pay the filing fee of $250. See attached affidavit.

Dated: ______________________

Respectfully submitted,
______________________
(Your Name and signature)
PRO SE

Produced by NYSDA Immigrant Defense Project
25 Chapel Street, Suite 703, Brooklyn, NY 11201

u

Phone (718) 858-9658 x201

July 2005
Page 25 of 39

FINANCIAL AFFIDAVIT
In Support of a Motion to Proceed In Forma Pauperis
Case Name:

_____________________________

Docket Number:

_____________________________

EMPLOYMENT
Are you now employed? ___ Yes ___ No ___ Self Employed
Name & Address of Employer: ___________________________________________________
If YES, how much do you earn per month? $__________________
If NO, give month & year of last employment _________________
How much did you earn per month? _________________________
If married, is your spouse employed? ___ Yes ___ No
If YES, how much does your spouse earn per month? $___________________
If a minor under age 21, what is your parents’ or guardian’s approximate monthly income?
$___________________________
OTHER INCOME
Have you received in the past 12 months any income from a business, profession, or other form
of self-employment, or in the form of rent, payments, interest, dividends, retirement or annuity
payments, or other sources? ___ Yes ___ No
If YES, give the amount received and identify sources:
Received
____________________
____________________
____________________
____________________

Sources:
________________________________________
________________________________________
________________________________________
________________________________________

CASH
Have you any cash on hand or money in savings, a prisoner trust fund account or checking
account? ___ Yes ___ No
If YES, state total amount $___________

PROPERTY
Do you own any real estate, stock, bonds, notes, automobiles or other valuable property
(excluding ordinary household furnishings and clothing?) ___ Yes ___ No
If YES, give value and describe it:
Value
____________________
____________________
____________________
____________________

Description
________________________________________
________________________________________
________________________________________
________________________________________

DEPENDENTS
Marital status:
Total No. of Dependents: ________________
___
Single
___
Married
___
Widowed
___
Separated or Divorced
List persons you actually support & your relationship
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
DEBTS & MONTHLY BILLS
List all creditors, including banks, loan companies, charge accounts, etc.

Creditors:
Apt. or Home: _____________________
_________________________________
_________________________________
_________________________________

I certify the above to be correct.

Total
Debt:
$__________
$__________
$__________
$__________

Monthly
Payment:
$__________
$__________
$__________
$__________

_______________________________
Signature of movant

__________
Date

WARNING: A false or dishonest answer to a question in this affidavit may be punishable by
fine, imprisonment, or both.

OMB#1125-0004; Expires August 31, 2005

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

Alien's Change of Address Form/
Board of Immigration Appeals

Who should use this form: Use this form for a change of address if you have filed an appeal or motion with the Board
of Immigration Appeals. Note: If you are an attorney representing a person before the Board, do not use this form to
indicate your own change of address; use Form EOIR-27 (Notice of Entry of Appearance as Attorney or Representative
Before the Board).
When to use this form: If you move, the law requires you to file this Change of Address Form with the Clerk’s Office
of the Board of Immigration Appeals. You must file this form within five (5) working days of a change in your address.
Even if you have an attorney or representative, you should file this form with the Board every time you change your
address. You should also file this form if you get a new telephone number.
How to use this form:
1. Complete the Change of Address Form below.
2. Send a copy of this form to the District Counsel for the Department of Homeland Security, and complete
and sign the “Proof of Service” below to show you did this.
3. Send this form to the Board of Immigration Appeals. Follow the mailing instructions on the back of this form.
4. If you prefer to file this form in person, you may bring it to the Board of Immigration Appeals, Clerk’s Office,
5201 Leesburg Pike, Suite 1300, Falls Church, Virginia.

Name:

Alien Number: A
My OLD address was:

My NEW address is:

("In care of" other person, if any)

("In care of" other person, if any)
(Number, Street, Apartment)

(Number, Street, Apartment)
(City, State and ZIP Code)
(City, State and ZIP Code)
(Country, if other than U.S.)
(New Telephone Number)

(Country, if other than U.S.)

✍

SIGN HERE

➜

X
Signature

Date

PROOF OF SERVICE
(You Must Complete This)
I

mailed or delivered a copy of this Change of Address Form on
(Name)

(Date)

.

to the District Counsel for the Department of Homeland Security (DHS) at
(Address of DHS District Counsel)

✍

SIGN HERE

➜

X
Signature
Form EOIR - 33/BIA
Revised 05/03

MAILING INSTRUCTIONS
1) Fold the page at the dotted lines marked "Fold Here" so that the address is visible.
(IMPORTANT: Make sure the address section is visible after folds are made.)
2) Secure the folded form by stapling along the open end marked "Fasten Here."
3) Place appropriate postage stamp in the area marked "Place Stamp Here."
4) Write in your return address in the area marked "PUT YOUR ADDRESS HERE."
5) Mail the form.
Under the Paperwork Reduction Act, a person is not required to respond to a collection of information unless it displays a valid OMB control number.
We try to create forms and instructions that are accurate, can be easily understood, and which impose the least possible burden on you to provide us with
information. The estimated average time to complete this form is three (3) minutes. If you have comments regarding the accuracy of this estimate, or suggestions for
making this form simpler, you can write to the Executive Office for Immigration Review, Office of the General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church,
Virginia 22041.

Fold Here First
PUT YOUR ADDRESS HERE
Place
Stamp
Here

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Clerk’s Office
P.O. Box 8530
Falls Church, Virginia 22041

Fold Here Second

Fasten Here

Form EOIR - 33/BIA
Revised 05/03

LEONIDAS RALPH MECHAM
Director
CLARENCE A. LEE, JR.
Associate Director

ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS
WASHINGTON, D.C. 20544

NOEL J. AUGUSTYN
Assistant Director
Office of Court Administration

May 25, 2005

TO:

CLERKS, UNITED STATES COURTS OF APPEALS
CLERKS, UNITED STATES DISTRICT COURTS

SUBJECT:

REAL ID ACT OF 2005: Aliens Challenging Removal, Deportation
Or Exclusion

As some of you may know, the “Real ID Act of 2005" was signed into law (Pub.
Law No. 109-13) on May 11, 2005, as Division B of the Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005,
and became effective on the date of enactment. Though there are a number of important
provisions that courts may wish to review, the Real ID Act has a specific impact upon
both district and appellate clerks’ offices with respect to “cases in which the final
administrative order of removal, deportation, or exclusion was issued before, on, or after
the date of enactment.” Title I, Section 106(c) of the Act states:
TRANSFER OF CASES.– If an alien’s case, brought under section 2241 of
title 28, United States Code, and challenging a final administrative order of
removal, deportation, or exclusion, is pending in a district court on the date
of the enactment of this division, then the district court shall transfer the
case (or the part of the case that challenges the order of removal,
deportation, or exclusion) to the court of appeals for the circuit in which a
petition for review could have been properly filed under section 242(b)(2)
of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this
section, or under section 309(c)(4)(D) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 note). The court
of appeals shall treat the transferred case as if it had been filed pursuant to a
petition for review under section 242, except that subsection (b)(1) of such

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY

REAL ID ACT of 2005
Page 2
section shall not apply.
This new law applies only to cases brought under Section 2241 by aliens challenging
removal, deportation, or exclusion. It does not apply to those cases challenging detention.
The courts will need to develop procedures to implement the Act’s requirement
that “...the district court shall transfer the case”. Certainly, one option for the district
courts is for judges to initiate a review of all of these cases and prepare the transfer orders
when appropriate. As an alternative, courts could require counsel to initiate the process.
Administrative Office staff have been advised by Department of Justice personnel that
some U.S. Attorneys’ offices already have begun preparing transfer order motions in
these cases. If this is occurring, the district courts should coordinate with the local U.S.
Attorney regarding the process to be followed for transferring these cases, including how
these cases will be identified and how and when the transfer will be initiated. In addition,
the courts will need to determine how to proceed if only part of the case is transferred,
and how the court of appeals would handle a stay of deportation or removal entered by
the district court.
At the same time, the district courts should coordinate with the clerk of the
appropriate appellate court regarding transmittal of all case-related records and the
process for providing a complete certified record of these cases. District clerks also
should note that the Section 106(c) requirement to transfer the case “to the court of
appeals in the circuit in which a petition for review could have been properly filed” raises
an issue of venue, since the case may need to be transferred to another circuit. Many
district courts have not required the full certified agency record in these cases, but instead
they have relied on the Board of Immigration Appeals order and supporting documents.
The process for obtaining and transmitting the full certified record to the court of appeals
must be worked out with the Department of Justice, since the appellate courts will likely
require the full certified record. This is particularly important, as it may take Department
of Justice offices several weeks or more to compile their records.
Finally, please note that the Act does not impose the collection of any new fees for
the transferred petitions for review.
If appellate clerks have questions regarding the content of this memorandum, they
should contact Gary Bowden, Chief, or Gloria Malkin, Attorney Advisor, Appellate Court
and Circuit Administration Division.

REAL ID ACT of 2005

Page 3

If district courts have questions regarding the content of this memorandum, they
should contact their regional administrator in the District Court Administration Division:
James L. Caldwell (2nd, 9th Circuits); Steven Gallagher (1st, 5th, 10th, DC Circuits); David
Mercanti (3rd, 4th, 7th Circuits); or, Thomas S. Russell (6th, 8th, 11th Circuits).

Noel J. Augustyn

cc:

Circuit Executives
District Court Executives
Senior Staff Attorneys

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 16, 2005
SPECIAL NOTICE
RE: Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat 231 (May 11, 2005)
This notice is to the District Courts and litigants within the Third Circuit. It outlines the
preferred procedures for transferring cases from District Courts to the Court of Appeals pursuant
to the Real ID Act of 2005.
1. Because not all petitions for habeas corpus are subject to transfer and because cases to
be heard as a petition for review must be transferred to the Circuit Court of Appeals where the
Immigration Judge concluded proceedings, it is suggested that District Judges provide the parties
an opportunity to stipulate to or brief the propriety of the transfer order.
2. If the District Court agrees that the case is appropriate for transfer under the Real ID
Act, the District Court should issue an order of transfer and send the case to the appropriate
Court of Appeals as a petition for review.
3. The transfer order should indicate that the transfer is made pursuant to the Real ID Act.
The transfer order should also indicate where the Immigration Judge concluded the proceedings,
which Court of Appeals the case should be transferred to, and include the petitioner’s Alien
Number (the eight-digit number preceded by the letter A).
4. Any stay previously issued by the District Court shall remain in place during and after
transfer. The Government may move in the Court of Appeals to vacate the stay if appropriate.
5. The District Court clerks are requested to transmit the entire record to the Court of
Appeals at the same time they transmit the transfer order. If only a portion of the District Court
case is being transferred to the Court of Appeals as a petition for review, that portion of the
District Court record which relates to the petition for review should be forwarded to the Court of
Appeals. The Court of Appeals will accept paper documents or electronic documents.
6. Within ten days of the case being opened in the Court of Appeals, the parties shall
inform the clerk whether the record transmitted by the District Court is sufficient for purposes of
the petition for review or whether additional documents are necessary.

/s/ Anthony J. Scirica
Chief Judge

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Memorandum
To:

District Court Clerks

From: Charles R. Fulbruge III
Date: May 31, 2005
Re:

Real ID Act

On May 11, 2005, “The Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Tsunami Relief Act, 2005," also known as The Real ID Act,
became law. Section 106 of the act has a major impact on courts of appeals. It provides as
follows:
(c) TRANSFER OF CASES. If an alien’s case, brought under section 2241 of title
28, United States Code, and challenging a final administrative order of
removal, deportation, or exclusion, is pending in a district court on the date of
the enactment of this division, then the district court shall transfer the case (or
the part of the case that challenges the order of removal, deportation, or
exclusion) to the court of appeals for the circuit in which a petition for review
could have been properly filed under section 242(b)(2) of the Immigration and
Nationality Act (8 U.S.C. § 1252), as amended by this section, or under section
309 (c)(4)(D) of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (8 U.S. C. § 1101 note). The court of appeals shall treat the
transferred case as if it had been filed pursuant to a petition for review under
such section 242. . . .
This section raises numerous questions of both substance and procedure which we bring to
your attention in the discussion below.
I.

Transferring Cases

After reviewing the AO’s May 25, 2005 memo, and participating in a
conference call on May 25, there is a general consensus district courts will transfer cases
under the act after review by a district or magistrate judge. Individual district courts will
determine whether transfer review will be undertaken sua sponte by the court, or on motion

by the U.S. Attorney or the petitioner’s attorney. Current record keeping does not identify
this specific type of case, so we do not know how many case might be involved. To date we
have received four transfers, one from the Eastern District of Louisiana and three from the
Western District of Texas, El Paso.
II.

Court to Which Transfer is Made

The act provides the cases shall be transferred “to the court of appeals for the
circuit in which a petition for review could have been properly filed. . . .” Habeas corpus
challenges to an order of removal, exclusion, or deportation are filed in the district court
where the alien is located; petitions for review of such orders are filed in the district court
where the final administrative order was issued. Thus, we expect there are some cases in the
district courts in this circuit that should be transferred to another court of appeals, and vice
versa. We ask our district courts to review the cases thoroughly enough to determine the
proper court of appeals.
III.

The Record

In most cases, the record in the district court will consist of little more than the
Immigration Judge’s decision and the BIA order affirming it. Our court will want more than
what likely is available at the district court. The Justice Department will provide the
necessary records but there will be a substantial delay. We ask that the district court send
everything it has when the case is transferred. After we have reviewed the case, we will
determine whether the administrative record is necessary and, if so, order it from DOJ.
IV.

Stay of Removal

Often, habeas petitions are not filed until there is an order of imminent removal
or deportation. The petitioner then also submits an application for stay of deportation. There
is some sentiment that the district court should grant at least a temporary stay to prevent the
issue from becoming moot during the transfer process. In most cases, it should not be
necessary to do this as a routine matter. This court has recently adopted the four-factor test
applied to preliminary injunctions, which is decidedly more favorable to petitioners.
Tesfamichael v. Gonzales, — F.3d —, 2005 WL 1220939 (5th Cir. May 24, 2005). It should
be relatively easy for the district courts to determine whether a stay is warranted on the
merits without having to grant a stay automatically in every case.
V.

Limited Transfer

The act specifies that, if a habeas petition in the district court attacks both the
order of removal, exclusion, or deportation and the fact of detention, only the portion dealing
with the order of removal, etc. can be transferred. The detention challenge will remain with
the district court to be decided separately and the court of appeals will have no jurisdiction

over that portion of the case unless and until the district court has entered a final judgment
that has been appealed.
As we get more information and experience, we may supplement this memo. If you
have questions, please contact Bill Zapalac, Counsel to the Clerk at (504) 310-7660.
Sincerely,

cc: Bill Zapalac

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
June 2, 2005
SPECIAL NOTICE
Re: Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May 11, 2005)
This is a notice to the District Courts within the Circuit, as well as to concerned parties,
regarding the preferred procedure for transferring cases from the district courts to the court of appeals
in the aftermath of the Real ID Act of 2005, enacted May 11, 2005. It is suggested that the district
courts:
1. Allow the parties the opportunity to stipulate to, or brief the propriety of, transfer.
2. If the district court agrees that the case is appropriate for transfer, the district court should issue an
order expressly transferring appropriate cases, or portions of them, to the Ninth Circuit Court of
Appeals as a Petition for Review.
3. In its transfer order, the district court should inform this court whether the petitioner ever sought a
stay of removal from the district court and what the district court’s decision was, if any, on the stay
request.
4. The district court clerks are requested to transmit the entire case file to the Court of Appeals,
simultaneous with the transfer order. If only a portion of the case is transferred, the parties should
notify the district court clerk’s office as to which portions of the file should be transmitted to the Court
of Appeals.
5. If a stay of removal had been requested in the district court at any time during the proceedings, then,
absent further order of this Court, the district court’s order transferring a case to this court as a petition
for review shall trigger the temporary stay of removal contemplated by this court’s General Order 6.4.
This court will then issue an order directing the transferred parties on how to proceed further.
By direction of the Court Executive Committee:
Cathy A. Catterson
Clerk of Court

 

 

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