Petition for Review at the Fifth Circuit: Texas Guide

You received a decision from the Board of Immigration Appeals, and you want to know whether a federal court can review it. A petition for review asks a federal court of appeals to review a final order of removal.

This page explains how the petition works, how the deadline is counted, and what to check first. The Board of Immigration Appeals is often called the BIA. Adriana Gomez is the responsible lawyer for this page.

What a petition for review is and when it applies

A petition for review is a request that a federal court of appeals review a final order of removal. It is the route for asking a court to check the legal and factual questions in a removal case. 8 U.S.C. § 1252 makes judicial review available through a petition for review of a final order.

A BIA appeal and a petition for review are different steps. The Board decides a BIA appeal itself. A petition goes to a federal court, and only after the order is final. Our BIA appeals work covers the Board stage of a case.

Timing decides when the petition step opens. An order of removal made by an immigration judge at the conclusion of proceedings under section 240 of the Act becomes final in several situations, including when the Board dismisses the appeal, under 8 C.F.R. § 1241.1. Once that happens, the petition clock is the next thing to watch.

If your case involves a criminal ground, raise that question early.

Why Texas cases go to the Fifth Circuit

A petition goes to the court of appeals for the circuit where the immigration judge completed the proceedings. 8 U.S.C. § 1252 sets that venue rule.

The hearing location decides the court, not where you live today. If you moved after the hearing, you still file in the circuit where the hearing ended.

A common mistake is choosing the court by home address instead of by the hearing location.

The 30-day deadline and how it is counted

A petition for review must be filed no later than 30 days after the date of the final order of removal. 8 U.S.C. § 1252 sets this deadline.

The date that counts is the date the order became final. That is not always the date on the BIA decision. Under 8 C.F.R. § 1003.39, except when the decision is certified to the Board, an immigration judge’s decision becomes final when you waive appeal, or when the time to appeal runs out without one, whichever happens first.

Start with both documents. Read the immigration judge’s order and the BIA decision, and find the event that made the order final. Then count 30 days from that date.

Put the date on a calendar as soon as you learn it. If you are unsure which date controls, plan around the earlier date. A missed date can cost you this route.

The administrative record: what the court reviews

The Fifth Circuit decides the petition only on the administrative record on which the removal order is based.

In plain terms, the court works from the case file. That file includes the hearing record, the immigration judge’s decision, and the Board’s decision. Facts that never reached that file are not part of this review.

This is why the record built in immigration court and at the BIA matters so much. Review what is already in the file before you decide on a petition.

When new facts or evidence exist, a different route may fit. That route is a motion to reopen, covered below. Which route fits depends on the facts, and that choice is weighed early.

What the Fifth Circuit filing involves

Filing a petition starts a briefing schedule with short deadlines. Under 8 U.S.C. § 1252, the alien must serve and file a brief no later than 40 days after the administrative record is available. Under 8 U.S.C. § 1252(C), the alien may serve and file a reply brief not later than 14 days after service of the Attorney General’s brief, and the court may not extend these deadlines except upon motion for good cause shown. The same paragraph provides: “If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result.” 8 U.S.C. § 1252 reads: “The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available, and may serve and file a reply brief not later than 14 days after service of the brief of the Attorney General, and the court may not extend these deadlines except upon motion for good cause shown.”

A reply brief may follow. If you file a reply brief, it must be served and filed no later than 14 days after service of the government’s brief. 8 U.S.C. § 1252 reads: “If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result.” The court may not extend these deadlines except on motion for good cause shown.

If a brief is not filed on time, the court shall dismiss the appeal unless a manifest injustice would result. Treat every brief date as firm, not as a soft target.

The Fifth Circuit has its own rules on form and filing. Those rules may differ from BIA practice. Do not assume a filing that worked at the Board will work in federal court.

Asking for a stay is a separate step

A stay is a separate request, and filing a petition is a different step. Under 8 C.F.R. § 1241.6, a person under a final order may seek a stay of removal from the Department of Homeland Security.

The same regulation says a DHS denial does not prevent an immigration judge or the Board from granting a stay. That applies to a stay connected to a previously filed motion to reopen or motion to reconsider.

Raise the stay question before you file, not after. Timing questions are easier to plan for when you start early.

Petition for review or motion to reopen: comparing the routes

A petition asks the federal court to review the final order. A motion to reopen asks the Board to consider new facts.

Under 8 C.F.R. § 1003.2, except as provided in paragraph (c)(3), an alien may file only one motion to reopen removal proceedings, and it must be filed no later than 90 days after the final administrative decision. It must state the new facts it will prove and be supported by affidavits or other evidence.

The Board will not grant the motion unless the evidence is material and was not available earlier. 8 C.F.R. § 1003.2 reads: “A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.” The Board also has discretion to deny a motion even when a prima facie case is made.

The two routes have different rules and different clocks. Check both before you choose. The American Immigration Lawyers Association’s motions to reopen summary covers federal procedures, deadlines, and limits. For more on the motion route, see our motion to reopen guide.

Next step after a BIA decision in Texas

If you hold a BIA decision, your first step is to find the final-order date and count the 30 days. Then compare the petition with other routes, including a motion to reopen.

Frequently asked questions