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Appellate Justice: Federal Court Right To Fight, Not To Halt Deportation

– Posted in: Immigration Law, Policy & Politics | Immigration Appeals

By the middle of my first year of law school, I considered writing a book about the absurdities of legal logic.

Even from my rookie standpoint, I discerned legal reasoning often led to incompatible results among factually similar cases.

Now, having practiced immigration law for a few decades, I can attest that even legal policies regarding the same subject matter can move in contrary directions.

Consider immigration appeals.

Motions To Stay Deportation Before Final Appellate Decision Is Issued

On the one hand, immigrants who have lost their cases can appeal the adverse decision. This is known as the immigration appeals process.

The first step is to file a challenge to an immigration judge’s ruling with the Board of Immigration Appeals.  If the immigrant is contesting the merits of the judge’s decision, there is an automatic stay of the lower court’s deportation order.

Since the BIA is not an immigrant-friendly court, many immigrants lose again at this level. Some move forward to a higher court, the U.S. Court of Appeals.

Taking this step is beyond the reach of many immigrants. A federal appeal is not only more complicated, but also more expensive.

Yet, this is sometimes an action that can be predictably foreseen at the outset of a case.

On the other hand, at this level of appeal, there is no guarantee that an immigrant will be allowed to remain in the United States, even while the appeal is ongoing.

There is no automatic stay of removal.

In most federal circuit courts, the immigrant is allowed to file a motion to stay removal – which means “to stop deportation” – but up until a favorable decision on the motion is made by a judge, the individual can still be deported.

The Ninth Circuit Court of Appeals, which covers California, has a more enlightened stance. Once an immigrant files a motion for stay, the motion is automatically granted.

The order halting deportation efforts remains in place until the government challenges the order and the court has a chance to rule on it. This process ensures that judges, not DHS, will decide who gets to remain in the U.S. while their appeal is ongoing.

If the court does not grant the stay, then the immigrant is subject to deportation at any time.

As an Escondido immigration lawyer, I’ve learned that although the temporary orders enable immigrants and their families to remain together longer, motions to stay removal are not easy to win. Battles over these motions are often as brutal as those over the actual appeal.

There are a few good reasons.

Sometimes the motion to stay addresses many of the same issues as the underlying appeal. This is especially significant when the immigrant’s representative is taking on one of the lingering due process problems caused by IIRAIRA.

In other cases, the motion to stay may constitute an early challenge to a truncated BIA decision. Since the BIA operates under a tight deadline for studying evidence and issuing opinions, the Board’ s rulings have a tendency to limit what issues will be heard on the federal appeal.

An early victory, in these situations, can help build positive momentum.

The Impact Of Premature Deportations On Immigrant Families

Three law professors recently described how the rules outside the Ninth Circuit have impacted immigrant families in a Washington Post op-ed piece.

In A Stay Of Deportations, they wrote, “If you get a speeding ticket from a traffic cop, you have a right to fight it. And you don’t have to pay the fine until the case is resolved in court. But things are different if the Department of Homeland Security seeks to have you deported. In theory, you have the right to fight your deportation, potentially all the way to the Supreme Court. But the DHS might deport you before you’ve exhausted your appeals.”

That’s what happened in June to a mother and daughter who were deported from a detention center in Pennsylvania to Guatemala — where they feared becoming victims of violence — less than two weeks after appealing in federal court.

A Rare Judicial Order: The Return Of Deported Immigrants To Fight Their Appeals

Fortunately, in the case cited above, the federal judge ordered the government to find the mother and daughter and return them to the United States as quickly as possible.

The mother and daughter were located and returned.

The story, however, does not end there.

They are allowed to remain here only until the judge rules on whether they should be allowed to stay while their appeal is pending. If their motion is denied, they have to again return to their home country until they win their case.

This means even after the judge’s ruling to bring them back to the U.S., they may still be deported before a judicial decision on their appeal is reached.

And an appeal could last several years.

Of course, there are other possible problems created by such a policy. For instance, how will the long-distance communications affect the attorney-client relationship?

Will the immigrant simply give up? How will the immigrant pay for an attorney’s services if they cannot earn even a decent wage in their home country?

If an immigrant’s family includes U.S. citizens and legal residents who reside in the U.S., how does one recapture the time lost separated from them?

Legal reasoning often resembles, as law professor Roberto Unger has noted, “a prison-house of paradox whose rooms do not connect.”

What does the right to appeal a deportation order, after all, really mean when one can be deported before the appeal is over?

What if the immigrant wins the appeal?

I might just write that book yet.

By Carlos Batara, Immigration Law, Policy, And Politics