Once a BIA appeal is dismissed, it might be time to appeal your immigration decision to the Court of Appeals. But how long does a Circuit Court appeal take?
This is a question we often hear when discussing whether a client wants to take their case on to the Circuit Court of Appeals. Timing can be incredibly important for a number of reasons. For example, having a pending asylum appeal may make the person eligible for employment authorization. Also, if the person can obtain a stay of removal from the Circuit Court, they may want to know how long that stay is going to last.
The answer to the question of “how long” an appeal will take doesn’t have a clear answer and is complicated by a number of factors, only a few of which the client or the attorney have actually have control over.
No attorney can promise that an appeal will take a certain amount of time. If you’re expecting an appeal to take two years so that you can maneuver or get into some other immigration status, you’re likely to be disappointed.
Anyone who says they can guarantee that your appeal will take a specific amount of time isn’t telling you the truth. With that said, here are a few of the factors that help decide how long a Circuit Court appeal will take:
I. What Venue is the Appeal Filed In?
The first and most important factor is the venue, because not all of the Courts of Appeals are the same. Some courts process appeals much faster than others for a variety of reasons. We recently had a petition for review pending at the Ninth Circuit for over 3 years. The Ninth Circuit’s website predicts a waiting time of 12-20 months.
On the other hand, I’ve litigated three cases in other circuits in the last year that were finished in roughly 7 months.
The difference in processing times is caused by a number of factors, including the courts’ varying case loads, judicial vacancies, institutional culture, and the internal operating procedures of the Circuit.
II. When Will the Record Be Filed?
Other factors are dictated by the Department of Justice, which is your opponent in any Circuit Court appeal of an immigration court order.
The Department of Justice is responsible for preparing the administrative record and filing it with the court, and the administrative record becomes the basis for what the two parties are arguing about. When I write an opening brief, my brief must reference specific pages from the administrative record (so I can’t write my brief until I have received the record).
Once the petition is filed, the government has 40 days to file the record with the court.
Sometimes they forget (which delays the case). Sometimes the person responsible for filing the record retires or resigns and a new person is not assigned. The Department of Justice is a large agency, and at times these things get missed. Other times they file the record but it is incomplete. All of this can take time to correct, and no briefs can be filed without this record.
III. Will Either Party Be Asking For Briefing Extensions?
Once the record is filed, the appealing party gets 40 days to file a brief. Most courts will grant one extension of up to a month but not more. In my appeals, I don’t ask for an extension unless I need one, because my clients are often detained or are outside the United States waiting to be allowed back into the United States. But sometimes we have to ask for an extension (the last thing you want is a rushed, sloppy brief because the person responsible for writing it ran out of time).
The Department of Justice then gets 30 days to file its brief, and it almost always asks for a one-month extension. Whether the government extends this date or not, once its brief is filed, the appealing party gets 14 days to file a reply brief, and again you can usually ask for an extension if it is necessary. However, the Circuit Court will usually begin screening the case for oral argument before it has received the Reply Brief.
In trying to determine how long an appeal will take, this is one of the areas that you can never predict in advance. A case with no briefing extensions could take up to 6 months less than a case where every brief is extended.
IV. Will the Case Will Be Argued in Person
The last phase on most circuit court appeals is oral argument. However, all cases are scheduled for oral argument, and whether the case is argued is up to the court. Your opening brief should (1) ask for oral argument, and (2) be written well enough to convince the court that your case deserves to be heard at oral argument.
Most courts schedule oral argument for specific periods of time (because often the Judges live and work in other cities and it take a lot of administrative planning and work to get them together for oral argument). Also, the parties need enough notice in advance to get to oral argument, which sometimes will be in states far away from where the immigrant and their attorneys live.
When and whether the case gets scheduled for argument is up to the court and very much affects how long an appeal will take.
V. Will There Be a Dissent?
This is impossible to predict, but you can be sure this affects the timing of every appeal.
Once the case has been heard at argument, the panel of judges then discusses what they’re all thinking about how the case should be decided. They usually take a vote to see if they’re in agreement. If the three judges are all in agreement, then one judge writes the decision for the court. That decision may come in 2 to 4 months (or more or less). I’ve had these decisions take more than a year, and I recently gone one less than a month after oral argument.
But what if they’re not in agreement. This can slow down your appeal. If the judges on your panel aren’t in agreement, then they may begin to prepare dissenting or concurring opinions, which take more time. Usually the majority writes its opinion first. Then the dissenting judge writes an opinion explaining why she could not join with the majority opinion. Sometimes the majority then edits its opinion to respond to things raised by the dissent. This back-and-forth process can take time. How long? It’s anyone’s guess.
In the end, you’ll get a decision from the court, but nobody is able to accurately predict when that will be.
Because the time frame of an appeal has so many variables, no attorney can promise you that your appeal will be finished in any certain amount of time. You can ask your attorney not to ask for briefing extensions, for example, if you are in a hurry. But if you’re looking for a promise or a guarantee that your appeal will take two years, for example, you’re going to be disappointed.
A final consideration – attorneys have to abide by their State’s ethical rules, which require them to not engage in conduct that is intentionally dilatory. While every State has different rules, the ABA’s model rule 3.2 says “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client,” and every State has a similar rule.