An alien subject to a removal, deportation or exclusion order must first exhaust all available administrative remedies before going to the federal courts. Before the process changed in 1997, some cases were called "deportation" proceedings and some "exclusion" proceedings. Since April 1997, all are called "removal proceedings." In order to apply for judicial review of a final administrative decision, the alien must file a petition for review.

Requirement for Filing

Assuming that all administrative remedies were pursued and that review by the federal appellate courts is not prohibited by law or by judicial doctrines, a petition for review must:

  • Be filed no later than 30 days after the date that an administrative decision becomes final
  • Be filed in the federal court of appeals in the circuit in which the removal hearing was held or the final agency action was taken
  • Be served on the Attorney General of the United States, and
  • Be served on the officer in charge of the US Immigration and Customs Enforcement (ICE) service district or field office in which the final order was entered

The filing deadline is mandatory and cannot be extended by the filing of a motion to reopen or to reconsider nor by the grant or extension of voluntary departure. A petition for review that is not timely filed will result in the dismissal of the petition.

Separate petitions for review may be required if the alien wants to challenge the final administrative decision on deportation, removal or exclusion and then later wants to challenge the administrative denial of motions to reopen or to reconsider. If separate petitions are not filed, the court can review only the final administrative decision for which review was sought.

Content Requirements

A petition for review must contain the following information:

  • The name of each individual petitioning for review
  • A copy of the final administrative decision
  • A statement of whether any court has upheld the validity of the order, and if so, which court upheld the order, the date of the court's ruling and the type of proceeding

Effect on Deportation and Removal

The filing of a petition for review will not result in an automatic stay (temporary suspension) of deportation, removal and exclusion orders. Therefore, it is possible that an alien seeking judicial review may be deported or removed before the 30-day deadline for filing the petition of review has expired.

To prevent the alien's departure, the alien should also file a motion for stay of removal and, if necessary, for a stay of voluntary departure at the same time that the petition for review is filed. Each federal circuit court has adopted standards to determine whether it should grant a stay. Most circuit courts will grant a stay if the alien can show either:

  • That there is a probability of success on the merits of the issues raised in the petition for review and that there is a possibility of irreparable harm to the alien or the alien's immediate family members who are US citizens or lawful permanent residents, or
  • That serious questions of law are raised and the balance of hardships favor the alien

Habeas Corpus

Generally, federal courts are prohibited from accepting petitions for habeas corpus review from aliens who are subject to removal orders, except in extremely limited circumstances. However, the petition for review may used to address habeas corpus concerns relating to constitutional issues and questions of law.