Immigration law is complicated. A major reason is that it changes so much. In law school, when studying torts or property law, often students read seminal cases from the British House of Lords and “modern” cases from fifty years ago. An immigration lawyer can very seldom rely on an old case’s relevance. Immigration law is statute, agency, and court driven. Statutes and regulations change all the time and courts issue decisions all the time. Compounding the difficulty is that the implications of new laws and decisions affect areas of the law unanticipated when the new law came into affect. Even simple issues become needlessly complex. A recent Ninth Circuit case regarding the straightforward question of when does one appeal, Abdisalan v. Holder bears this out.
Nearly everyone is familiar in general terms with the appeals process. The lowest court makes a final decision. When the case is final, the loser can appeal. When the appellate case is decided and a final decision is made, the loser can appeal again, until there are no more courts to appeal to. The basis appeal process for a removal-based immigration case is:
Immigration court -> Board of Immigration Appeals -> Federal Courts of Appeal -> United States Supreme Court.
A wrinkle is that before relief can be granted in immigration cases, background checks must be completed by Immigration and Customs Enforcement and these checks expire after the passage of time. As to what is the meaning of a final decision in immigration law, Congress defined final at INA § 101(a)(47)(B), where it states:
[An] order … shall become final upon the earlier of— (i) a determination by the Board of Immigration Appeals (BIA) affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals.
Instead of sticking to this simple definition, the Ninth Circuit, facing different scenarios, came up with various rules. Some scenarios are:
1. Suppose an alien seeks several forms of relief from deportation, including voluntary departure, and the immigration judge denied them all except voluntary departure. The BIA concurs with the immigration judge, but remands for background checks to be performed.
2. Suppose an alien seeks several forms of relief from deportation, including voluntary departure, and the immigration judge denied them all except voluntary departure. The BIA feels that the immigration judge was correct about denying some forms of relief, but did not properly address others.
3. Suppose an alien seeks several forms of relief from deportation, including voluntary departure, and the immigration judge denied them all except voluntary departure. The BIA feels that the immigration judge was correct about denying all of the other forms of relief, but did not properly address only voluntary departure.
4. Suppose an alien seeks several forms of relief from deportation, and the immigration judge grants one type of relief other than voluntary departure but denies others. The BIA feels that the immigration judge was correct about granting some relief and not other relief, but remands for background checks to be performed.
Ms. Abdisalan’s case was most like Scenario 2, but is a complex hybrid with some Scenario 4 mixed in.
If a case is remanded for background checks, or for voluntary departure, or to consider other forms of relief, is the decision final? Without going through all the cases and all the permutations, which you can read here in Abdisalan and in the links, below, to appellant and government briefs regarding re-hearing, the result is that it is a very hard question to answer. This is bad. It should not be hard to know when to appeal. Appealing is expensive. The filing fee alone for an appeal at the Ninth Circuit is $500. And then there are attorney fees. The first obligation is not to miss a deadline. Because failing to file means missing the opportunity to appeal, then, to be safe, after every remand you have to file an appeal. The costs become high. But the work does not end with just filing the appeal. Each time there is going to be squabbling (which implies briefing), about whether the appeal is ripe or already pending.
It is not just me who says making something so complicated out of something so easy is bad. Mr. Abdisalan believes so as he asked the Ninth Circuit to reconsider the decision. The government also thinks so (Scroll down 29 pages) as it told the Ninth Circuit their decision is wrong. The Ninth Circuit agreed to re-hear the case en banc. Hopefully the Ninth Circuit will agree that they need to straighten out the big mess about when to appeal and put forth a simple definition of “final” finally. Posted May 26, 2014.