Filing a Petition for Review of a BIA decision to deny a Motion to Reopen or Reconsider.
This article is a portion of a Petition for Review filed with the 11th District Court of Appeals by Kyndra L. Mulder, Esquire. The issue was whether the BIA decision to deny a Motion gives the 11th District Court of Appeals jurisdiction to consider the underlying merits of the case.
To obtain review of issues arising from a BIA decision and issues arising from the denial of a motion to reopen or reconsider, separate petitions for review of each BIA decision must be filed. If separate petitions are not filed, the court’s review may be limited to the issues arising from the BIA decision for which review is sought. For example,if a petition for review of the BIA decision underlying the motion is not filed, the court may not review issues arising from the underlying BIA decision.
Based on the foregoing rule of procedure, petitioner sought to reopen the Board’s decision to vacate the order of the immigration judge granting him withholding of removal. Only by getting the Board to reopen his case could he timely file a petition for review of the Board’s decision on the merits. A petition for review of the motion to reopen would only give the court jurisdiction to consider the motion and not to review the issues arising from the underlying BIA decision on the merits.
Petitioner has been in the United Stated since June 22, 1996. In the 15 years that he has been here he has established a life for himself. He has married and has a small child who is an American citizen. Petitioner has been in a legal status, out-of-status, back in legal status and out-of-status again. The last and final decision in his case is that he be deported unless this court is given an opportunity to review his case on its merits.