Judicial review is the process by which a court reviews a
determination made by an administrative agency. Many immigration decisions made
by the U.S. Customs and Immigration Service (USCIS, formerly the Immigration
and Naturalization Service or INS) are subject to judicial review. As with any
type of appeal of a decision, before judicial review may take place, the court
must determine that the person bringing the action is the right person to bring
the action (that the person has "standing") and that the person has exhausted
all of the available administrative remedies before turning to the courts.
Judicial review of most immigration decisions occurs in a U.S. District
Court, which is a trial court in the federal court system. U.S. Circuit Courts
of Appeals, however, have exclusive jurisdiction under § 106(a) of the
Immigration and Naturalization Act (INA) to review direct challenges to final
orders of deportation and exclusion and denials of motions to reopen such
proceedings.
Specific Judicial Review
Situations
Adjustment of Status
If an alien in the
United States and applies for an adjustment of status, the alien can seek
judicial review as a part of the review of a removal order arising out of the
proceedings.
Applications for Family Unity
Benefits
Aliens who apply for "family unity benefits" and whose
applications are denied do not have the right to an administrative appeal, but
they do have the right to file a new application or seek judicial review of the
denial in the federal district court.
Removal and Exclusion
Determinations
Judicial review of a final removal order must be
filed with a U.S. circuit court of appeals no later than 30 days after the date
of the order. The petition must be filed with the U.S. circuit in which the
immigration judge completed the removal proceedings. Not all final orders of
removal are subject to judicial review, however. If an alien is ordered removed
due to certain crimes, such as aggravated felonies or certain controlled
substances violations, no judicial review is available.
Judicial review
of an expedited removal order is limited to review of only a few specific
findings: whether the person is an alien, whether the alien was ordered removed
under the correct expedited procedures, and whether the alien showed by a
preponderance of the evidence that he or she was a lawful permanent resident,
was a refugee, or had been granted asylum.
Employer issues
In labor certification cases, an alien may not unilaterally seek
administrative or judicial review, but the alien may join with his or her
employer in seeking such review. In addition, employers are entitled to
judicial review of a final administrative order that the employer has engaged
in an unfair immigration-related employment practice. Judicial review must be
sought within 60 days of entry of a final administrative order.
Citizenship Decisions
Naturalization
Section 336 of the INA provides that judicial review of the denial
of a naturalization application is available in two situations: (1) after all
administrative remedies have been exhausted; and (2) upon failure of the USCIS
(formerly the INS) to act upon an application for naturalization within 120
days following the initial naturalization examination. Jurisdiction over these
matters is vested in the federal district courts. The district courts have the
authority to either enter a decision or to remand (or send back) the matter to
the USCIS with instructions.
An appeal, to a federal court of appeals,
from a district court's naturalization decision must be made within 60 days of
the entry of final judgment. The last step of judicial review of a
naturalization decision would be filing a writ of certiorari to the U.S.
Supreme Court. These steps of judicial appellate review apply to
denaturalization decisions as well.
Loss of
citizenship
Judicial review of a loss of citizenship can be obtained
whether or not the person is in the United States. If the person is in the
United States, a judicial action to determine citizenship is detailed in §
360(a) of the INA. A person outside of the United States can bring a
declaratory judgment action in a U.S. federal court regarding his or her
citizenship claim.
When Judicial Review is not
Available
For certain immigration decisions, no judicial review is
available. For example, if an alien applies for a visa at a foreign consulate
and the application is denied, the alien may seek review of the denial by the
highest-level consular officer at that office. There is no formal
administrative appeal or judicial review. Certain asylum decisions are not
subject to review, including a determination that an alien is ineligible for
asylum because he or she is inadmissible or deportable for conduct relating to
terrorism. Also, a final order of removal after expedited removal proceedings
is not open to judicial review, nor is any administrative decision regarding
cancellation of removal.
Copyright 2007 LexisNexis, a division of Reed
Elsevier Inc
ANTONIO G. REVILLA III is a
"Former US Immigration Prosecutor " Immigration
Lawyer Miami, Deportation Defense
The Miami immigration lawyers
at Revilla Law Firm, P.A., in Miami, Florida, represent clients throughout the
state of Florida, including Aventura, Boca Raton, Bradenton, Clearwater, Coral
Gables, Coral Springs, Fort Lauderdale, Fort Myers, Fort Pierce, Hialeah,
Hollywood, Key West, Lake Worth, Melbourne, Miami, Miami Beach, Naples,
Orlando, Palm Beach, Palm Springs, Pompano Beach, Sarasota, St. Petersburg,
Sebring, Tampa, Titusville, Vero Beach, and Brevard County, Broward County,
Collier County, Highlands County, Hillsborough County, Indian River County, Lee
County, Manatee County, Martin County, Miami-Dade County, Monroe County, Orange
County, Palm Beach County, Pinellas County, St. Lucie County, and including the
Lake Okeechobee area, FL.
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