This is a brief overview of claims that can be brought in federal court. Please seek personalized advice on your case from a licensed attorney, because every case is unique.
Federal District Court
There are certain types of immigration-related claims that a U.S. federal district judge has jurisdiction to hear. These claims include:
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- An unreasonable delay by USCIS’ in adjudicating an application or petition
- Review of a USCIS denial of an application for naturalization
- Unlawful detention of someone in immigration custody
- Violations of the Administrative Procedure Act that sets standards that the USCIS must comply with for fairly adjudicating immigration petitions and applications.
- Review of denial of I-130 and I-140 petitions by USCIS. These petitions may be reviewed either by the Board of Immigration Appeals (BIA) or by a federal district court. You should seek legal advice to make an informed decision of what path to take. If you seek review at the Board of Immigration Appeals and your appeal is dismissed, then you can still seek review from a federal court. But review at the Board of Immigration Appeals is not a prerequisite required before going to federal court. You cannot go to the BIA after federal court review. There are many considerations that your attorney will consider with you including the standard of review of the appeal forum, meaning their deference to the agency decision.
- Mandamus actions when the agency is required to act within a date-certain specific deadline and the agency does not follow the deadline. For example, the agency is required to adjudicate a naturalization application within 120 days after the naturalization interview. A mandamus action may be filed in federal district court after the 120 days.
Federal Circuit Courts of Appeal
After an adverse decision by an Immigration Judge, you may appeal to the Board of Immigration Appeals (an administrative appeals tribunal) within 30 days. If you lose at the Board of Immigration Appeals (BIA), your petition for review must be filed with the appropriate circuit court within 30 days from when the BIA issued a decision. Furthermore, it must be received by the clerk’s office on or before the 30th day, and not merely mailed by that date. The government will be required to file an administrative record of your case and then the court will set a briefing schedule.
Even if you have a valid claim that is filed in a timely matter and the court accepts it, there is no automatic stay of your removal. Federal authorities may still deport you. However, you may ask an attorney to put together a motion to “stay removal” to avoid being deported while your appeal is pending. A stay of removal may be granted based on 4 criteria:
- Strong likelihood of success on the merits of the claim/relief;
- That irreparable harm would occur if a stay is not granted;
- That the potential harm to the person making the motion outweighs the harm to the opposing party if the stay is not granted;
- That granting the stay would serve the public interest.
Properly addressing these tests is complex and necessitates an attorney who is familiar with the process and your record. You will need to provide documentation to the attorney documenting the irreparable harm.
Example 1: if alien is caretaker for someone who is sick, document the illness and what alien’s responsibility is in relation to the sick person;
Example 2: if the alien’s life would be in danger in the deportation country, documenting a threat to their life and country conditions;
Example 3: if alien is primary support for close US citizen relatives, documentation of their dependency.
If the motion to stay is denied, and the person is deported back to his/her country of origin, that person will have to wait outside of the U.S. while the Court considers the appeal – but the appeal still continues. Circuit courts have high standards for granting stays and it is difficult to win one. Not only do you have to have a strong case, but also you have to document “irreparable” harm.
Our firm takes a holistic approach to your case and sometimes simultaneously recommends a federal appeal and a motion to reopen or reconsider at the Board of Immigration Appeals (particularly if there are new facts arising since the immigration trial). If the BIA denies the motion to reopen/reconsider, that decision can be appealed to the federal circuit court and consolidated with a pending appeal. If there are changed country conditions that warrant reopening, the BIA is another forum that can grant a stay of removal. Stays of removal are difficult to secure at the BIA and at federal court.