Deportation & Removal: Judicial Review

Aliens who are subject to removal orders may challenge those orders by filing administrative appeals with the Board of Immigration Appeals (BIA). Although judicial review of final administrative removal orders is still available, there are many restrictions that limit the federal courts' authority to review those orders.

Jurisdictional Bars

The general rule is that final administrative orders of deportation, removal or exclusion are subject to judicial review by the federal courts of appeals. However, there are numerous exceptions to the general rule that prohibit judicial review. Specific bars to judicial review include expedited removal orders, denials of discretionary relief, orders against criminal aliens, and matters involving prosecutorial misconduct and mandatory detention during a pending removal proceeding.

Expedited Removal Orders. These orders are issued against arriving aliens who immigration officials believe are inadmissible because of fraud or failure to possess required documentation. However, expedited removal orders can be reviewed through habeas corpus procedures to determine whether the petitioner:

  • Is an alien
  • Was lawfully ordered to be removed, and
  • Can prove that he or she was lawfully admitted for permanent residence, was a qualified refugee or was granted asylum and that such status was not terminated

Denials of Discretionary Authority. The Attorney General and the Secretary of Homeland Security have discretionary authority to deny the following forms of relief, and their decisions are excluded from judicial review:

  • Waivers of inadmissibility because of moral turpitude, multiple criminal convictions, prostitution, marijuana possession conviction or immunity from prosecution after committing a serious criminal offense
  • Waivers of inadmissibility because of fraud or misrepresentation of a material fact when seeking admission or insufficient documentation for admission
  • Cancellation of removal for permanent resident aliens
  • Cancellation of removal and adjustment of status for certain nonpermanent resident aliens
  • Requests for voluntary departure
  • Adjustment of status of nonimmigrants to legal permanent resident status

They also have the authority to make decisions on related matters that are excluded from judicial review:

  • Revocation of visa petitions
  • Refugee admissions
  • Detention of arriving aliens pending removal
  • Changes of nonimmigrant status

Orders Against Criminal Aliens. Most orders of removal issued against aliens for committing certain criminal acts are not reviewable by federal courts. The criminal acts that are the reason for issuing the removal orders include:

  • Two or more crimes of moral turpitude that are punishable by sentences of one or more years
  • Aggravated felonies
  • Controlled substance offenses other than personal possession and use of marijuana that is less than 30 grams
  • Firearms offenses
  • Immigration document fraud
  • Human trafficking
  • Espionage, sabotage, treason, sedition and other security crimes

Prosecutorial Discretion. Government decisions, whether discretionary or mandatory, to initiate proceedings or to prosecute aliens for deportation, removal or exclusion cannot be reviewed by the federal courts.

Detention Decisions. Administrative decisions to detain or release aliens or to grant, revoke or deny a bond or parole are not subject to judicial review.

Exceptions to Jurisdictional Bars

Although the above-mentioned restrictions are extensive, the federal court of appeals still have limited authority to review constitutional claims and questions of law. Constitutional claims involve claims that the alien's rights under the United States Constitution were violated. Questions of law generally involve issues relating to:

  • The application and construction of statutes and regulations
  • The application and construction of the proper legal standard to undisputed facts

Standard of Review

Even if an alien's case makes it past the jurisdictional bars, a federal court will review the case only under the substantial evidence standard of review. Under this test, the court will:

  • Review the entire record of the administrative proceeding or action
  • Assume that all the facts in the record are correct, true and undisputed, and
  • Determine whether the administrative decision is supported by substantial evidence in the record

The court will not:

  • Consider any new evidence
  • Consider any questions that challenge the interpretation of facts
  • Interview witnesses

The key question is whether the administrative decision is reasonable. If the administrative decision is reasonable, the court will affirm or approve the decision. If the decision is not reasonable, the court will return the case to the BIA or the appropriate agency for further proceedings.

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