Petition for review

In some jurisdictions, a petition for review is a formal request for an appellate tribunal to review and make changes to the judgment of a lower court or administrative body.[1][2] If a jurisdiction utilizes petitions for review, then parties seeking appellate review of their case may submit a formal petition for review to an appropriate court.[3] In the federal judiciary of the United States, the term "petition for review" is also used to describe petitions that seek review of federal agency orders or actions.[4]

The E. Barrett Prettyman Federal Courthouse is the home of the U.S. Court of Appeals for the District of Columbia Circuit.

Function of petitions for review

In jurisdictions that utilize petitions for review, parties may file a petition in an appellate tribunal that asks the appellate tribunal to determine whether the previous court or tribunal reached the correct outcome.[5] In some jurisdictions, appellate tribunals will not rule on issues that are not raised in petitions for review.[6] Some courts also prohibit parties from filing other motions (such as a motion for summary judgment) when they file petitions for review.[7] Because U.S. habeas corpus law requires petitioners for writs of habeas corpus to have exhausted state court remedies if they were convicted in a state court, habeas petitioners must first file a petition for review in the highest court in the state in which they were convicted, and raise all applicable issues, before filing a petition for writ of habeas corpus in federal court.[8] However, in some cases, appellants may pursue issues on appeal by filing both a petition for review as well as a petition for writ of habeas corpus.[9]

Difference between petitions for review and petitions for certiorari

In the common law tradition, only the Court of Chancery had the power to grant prerogative writs that directed inferior tribunals to send a record of proceedings to a higher court for review.[10] Beginning in the sixteenth century, the Court of King's Bench also gained the power to issue prerogative writs.[10] Over time, the power to grant certiorari became the power to grant an order as "a means of controlling inferior courts and persons and bodies having authority to determine issues affecting the rights of individuals".[10] However, writs of certiorari are traditionally only used when "the inferior body has acted without jurisdiction or determined an issue wrongly in law, but not on the ground that it had misconceived a point of law if it had jurisdiction and the proceedings are ex facie regular, nor on the ground that its decision is wrong in fact".[11] In England, the Administrative Court (part of the Queen's Bench Division of the High Court of Justice) now issues "quashing orders" rather than writs of certiorari.[12] In the United States, the nation's Supreme Court grants writs of certiorari "to review questions of law or to correct errors or excesses by lower courts".[13] However, some state courts in the United States require parties seeking appellate review to submit petitions for review, instead of petitions for certiorari, where the appellate tribunal grants an order that allows for review of the inferior tribunal's decision.[14]

Petition for review of an agency's order or judgment
Further information: Federal Rules of Appellate Procedure, Federal Rules of Civil Procedure, and Motion (legal)

In the United States, parties may seek review or enforcement of a federal agency order by filing a petition for review in any U.S. court of appeals having jurisdiction.[15] The term "enjoin" in law inherently and indisputably includes the following: review, stay, suspend, toll, modify, vacate, enforce, etc.[16][17] For example, in 8 U.S.C. § 1252(f)(2) Congress is basically saying this: "no court shall [review and enjoin] the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law."[18][19] Every contrary opinion leads to absurdity[20] and "deprivation of rights under color of law," which is a federal crime.[21][22][23][24] "When a court employs the extraordinary remedy of injunction, it directs the conduct of a party, and does so with the backing of its full coercive powers."[25] In this regard, rules 15(a)(1) and 26(b) of the Federal Rules of Appellate Procedure (FRAP) expressly state the following:

Review of an agency order is commenced by filing, within the time prescribed by law, a petition for review with the clerk of a court of appeals authorized to review the agency order.[17]

For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file: (1) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or (2) a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law. (emphasis added).[26][16][27]

By containing the word "may" only, the above quoted provision becomes purely discretionary and not mandatory.[28] When a party submits a petition for review, the petitioner "must either identify in [the administrative] record evidence sufficient to support its standing to seek review or, if there is none because standing was not an issue before the agency, submit additional evidence to the court of appeals."[29] Once one party has filed a petition for review, another party may file a cross petition for review, which also seeks review of some or all of the issues previously decided.[2] The reviewing court may, inter alia, vacate the agency's order or judgment. It may also reject the agency's opinion or reverse its judgment and remand the case for "further action or explanation," or it may simply dismiss the petition for review on jurisdictional ground.[30] But under no circumstances can a court deprive a party of rights,[21][22] especially an American (or a lawful permanent resident who was originally admitted as a refugee under 8 U.S.C. § 1157(c)) and is litigating pro se in removal proceedings.[31][32][33][34][35][23][24] Filing deadlines do not apply to said individuals if §§ 1252(e) and 1252(f) are invoked.[27][19][36]

See also

References

This article in most part is based on law of the United States, including statutory and latest published case law.

  1. See, e.g., Filing a Petition for Review: A Guide to Seeking Review in the Wisconsin Supreme Court 3 (2011) ("A petition for review is a document that asks the Supreme Court to review what happened in the Court of Appeals.").
  2. 5 CFR 1201.114 ("Petition and cross petition for review - content and procedure").
  3. See, e.g., Cal. R. Ct. 8.500 (defining "Petition for review").
  4. Josephine K. Mason, The Un-Creation of Rights: An Argument against Administrative Disclaimers, 62 Hastings L.J. 559, 596 (2010).
  5. See, e.g., Alaska R. of Ct. 402-03 ("An aggrieved party, including the State of Alaska, may petition the appellate court as provided in Rule 403 to review any court order or decision that is not appealable under Rule 202 and is not subject to a petition for hearing under Rule 302."); 210 Pa. Code Rule 1561.
  6. Jeffrey Gauger, Bosley v. Merit Systems Protection Board: Reviving the Waiver Test, 8 Fed. Cir. B.J. 9, 21 (1999).
  7. Sam Kalen, Federal Administrative Procedure Act Claims: The Tenth Circuit and the Wyoming District Court Should Fix the Confusion Attendant with Local Rule 83.7.2, 11 Wyo. L. Rev. 513, 514 (2011).
  8. Nancy P. Collins, Does the Right to Counsel on Appeal End as You Exit the Court of Appeals, 11 Seattle J. Soc. Just. 987, 989 (2013).
  9. Nancy Morawetz, Back to Back to the Future - Lessons Learned from Litigation over the 1996 Restrictions on Judicial Review, 51 N. Y. L. Sch. L. Rev. 113,121 (2006-2007).
  10. David M. Walker, The Oxford Companion to Law 197 (1980).
  11. David M. Walker, The Oxford Companion to Law 197-98 (1980).
  12. Administrative Court Guidance: applying for judicial review, Her Majesty's Courts and Tribunals Service 3 (2012) ("Judicial review must be used where you are seeking: ...a quashing order (i.e. an order quashing the public body's decision and formerly known as an order of certiorari")
  13. David M. Walker, The Oxford Companion to Law 198 (1980).
  14. James A. Vaught; R. Darin Darby, Internal Procedures in the Texas Supreme Court Revisited: The Impact of the Petition for Review and Other Changes, 31 Tex. Tech L. Rev. 63, 86 (2000) (noting that Texas abandoned a system of "writs of error" in favor of "petitions for review").
  15. See generally 28 U.S.C. § 1296 ("Review of certain agency actions"); 28 U.S.C. §§ 2341–2349 ("Orders of Federal Agencies; Review").
  16. 28 U.S.C. § 2342 ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of" a "final order of removal" under 8 U.S.C. § 1252) (emphasis added); see also 8 U.S.C. § 1326(d) ("Limitation on collateral attack on underlying deportation order"); 8 U.S.C. § 1252(f) ("Limit on injunctive relief"); Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001) (stating that "injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally."); Wheaton College v. Burwell, 134 S.Ct. 2806, 2810-11 (2014) ("Under our precedents, an injunction is appropriate only if (1) it is necessary or appropriate in aid of our jurisdiction, and (2) the legal rights at issue are indisputably clear.") (internal quotation marks and brackets omitted); Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010); Alli v. Decker, 650 F.3d 1007, 1010-11 (3d Cir. 2011) (same); Nken v. Holder, 556 U.S. 418, 442 (2009) (Justice Alito dissenting with Justice Thomas) ("First, a stay is 'a kind of injunction,'.... Second, the context surrounding IIRIRA's enactment suggests that § 1252(f)(2) was an important—not a superfluous—statutory provision.") (citations omitted).
  17. "Rule 15. Review or Enforcement of an Agency Order—How Obtained; Intervention". Legal Information Institute (LII). Retrieved 2019-01-20.
  18. 8 U.S.C. § 1252(f)(2); see also Lolong v. Gonzales, 484 F.3d 1173, 1177 n.2 (9th Cir. 2007) (noting that "the terms 'deportable' and 'deportation' can be used interchangeably with the terms 'removable' and 'removal,' respectively.") (emphasis added); 8 U.S.C. § 1229a(e)(2); Tima v. Att'y Gen., 903 F.3d 272, 277 (3d Cir. 2018) ("Section 1227 defines '[d]eportable aliens,' a synonym for removable aliens.... So § 1227(a)(1) piggybacks on § 1182(a) by treating grounds of inadmissibility as grounds for removal as well."); Galindo v. Sessions, 897 F.3d 894, 897 (7th Cir. 2018).
  19. NLRB v. SW General, Inc., 580 U.S. ___, ___, 137 S.Ct. 929, 939 (2017) ("The ordinary meaning of 'notwithstanding' is 'in spite of,' or 'without prevention or obstruction from or by.'"); see also In re JMC Telecom LLC, 416 B.R. 738, 743 (C.D. Cal. 2009) (explaining that "the phrase 'notwithstanding any other provision of law' expresses the legislative intent to override all contrary statutory and decisional law.") (internal quotation marks and brackets omitted) (emphasis added); In re Partida, 862 F.3d 909, 912 (9th Cir. 2017) ("That is the function and purpose of the 'notwithstanding' clause."); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1083 (9th Cir. 2014) ("As a general matter, 'notwithstanding' clauses nullify conflicting provisions of law."); Jones v. United States, No. 08-645C, p.4-5 (Fed. Cl. Sep. 14, 2009); Kucana v. Holder, 558 U.S. 233, 238-39 n.1 (2010); Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (collecting cases)
  20. Maharaj v. Ashcroft, 295 F.3d 963, 966 (9th Cir. 2002) ("The last relevant point from Andreiu is that section 1252(f)(2) should be interpreted to avoid absurd results.").
  21. "Deprivation Of Rights Under Color Of Law". U.S. Department of Justice (DOJ). August 6, 2015. Retrieved 2018-09-17. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under 'color of law' include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim. The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. (emphasis added).
  22. 18 U.S.C. §§ 241–249; United States v. Lanier, 520 U.S. 259, 264 (1997) ("Section 242 is a Reconstruction Era civil rights statute making it criminal to act (1) 'willfully' and (2) under color of law (3) to deprive a person of rights protected by the Constitution or laws of the United States."); United States v. Acosta, 470 F.3d 132, 136 (2d Cir. 2006) (holding that 18 U.S.C. §§ 241 and 242 are "crimes of violence"); see also 42 U.S.C. §§ 1981–1985 et seq.
  23. "Article 16". Office of the United Nations High Commissioner for Human Rights. Retrieved 2018-07-15. [The United States] shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (emphasis added).
  24. "Chapter 11 - Foreign Policy: Senate OKs Ratification of Torture Treaty" (46th ed.). CQ Press. 1990. pp. 806–7. Retrieved 2018-08-08. The three other reservations, also crafted with the help and approval of the Bush administration, did the following: Limited the definition of 'cruel, inhuman or degrading' treatment to cruel and unusual punishment as defined under the Fifth, Eighth and 14th Amendments to the Constitution.... (emphasis added).
  25. Nken v. Holder, 556 U.S. 418, 428 (2009) (citation and internal quotation marks omitted). "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. id. at 431. "This is particularly true here, where [8 U.S.C. §§ 1252(a)(1) and 1252(f)(2)] were enacted as part of a unified overhaul of judicial review procedures." id.
  26. "Rule 26. Computing and Extending Time". Legal Information Institute (LII). Retrieved 2019-01-20. See also, e.g., Walker v. Weatherspoon, 900 F.3d 354, 356-57 (7th Cir. 2018) ("Although the Rules of Appellate Procedure are not jurisdictional, they remain mandatory."); Hamer v. Neighborhood Housing Servs. of Chicago, 583 U.S. ___, ___, 138 S.Ct. 13, 17-18 (2017) ("Mandatory claim-processing rules ... may be waived or forfeited."); United States v. Wong, 575 U.S. ___, ___, 135 S.Ct. 1625, 1632 (2015) ("In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has 'clearly stated' as much.") (brackets omitted).
  27. See generally 8 U.S.C. § 1225(b)(1) ("Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled"); see also
    • 8 CFR 1003.2(c)(3) ("The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings....");
    • 8 U.S.C. § 1229a(c)(7)(c)(ii) ("There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under [ 8 U.S.C. § 1158 or 8 U.S.C. § 1231(b)(3) ] and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.") (emphasis added).
  28. See, e.g., Kingdomware Technologies, Inc. v. United States, 579 U.S. ___, ___, 136 S.Ct. 1969, 1977 (2016) ("Unlike the word 'may,' which implies discretion, the word 'shall' usually connotes a requirement."); United States v. Rodgers, 461 U.S. 677, 706 (1983) ("The word 'may,' when used in a statute, usually implies some degree of discretion.").
  29. M. Elizabeth Magill; Mark Seidenfeld, Judicial Review, 2001 Dev. Admin. L. & Reg. Prac. 113, 132 (2002) (citing Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) (internal quotations omitted) (modifications in original).
  30. Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 Va. L. Rev. 1335, 1370 (1998).
  31. Khalid v. Sessions, 904 F.3d 129, 131 (2d Cir. 2018) (case involving a U.S. citizen in removal proceedings); Ricketts v. Att'y Gen., 897 F.3d 491 (3d Cir. 2018) ("When an alien faces removal under the Immigration and Nationality Act, one potential defense is that the alien is not an alien at all but is actually a national of the United States."); Dent v. Sessions, 900 F.3d 1075, 1080 (9th Cir. 2018) ("An individual has third-party standing when [(1)] the party asserting the right has a close relationship with the person who possesses the right [and (2)] there is a hindrance to the possessor's ability to protect his own interests.") (quoting Sessions v. Morales-Santana, 582 U.S. ___, ___, 137 S.Ct. 1678, 1689 (2017)) (internal quotation marks omitted).
  32. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) ("Deprivation of [nationality]—particularly American [nationality], which is one of the most valuable rights in the world today—has grave practical consequences.") (citation and internal quotation marks omitted); see also Arizona v. United States, 567 U.S. 387, 395 (2012) ("Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.").
  33. 8 U.S.C. § 1101(a)(42) ("The term 'refugee' means ... any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable ... to return to, and is unable ... to avail himself ... of the protection of, that country because of persecution ... on account of race, religion, nationality, membership in a particular social group, or political opinion....") (emphasis added); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) ("Persecution may be emotional or psychological, as well as physical."); Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013) ("The core regulatory purpose of asylum ... is ... to protect refugees with nowhere else to turn.") (brackets and internal quotation marks omitted).
  34. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) (case of a refugee in removal proceedings); Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999) (en banc) (same); see also Matter of D-K-, 25 I&N Dec. 761 (BIA 2012).
  35. "60 FR 7885: ANTI-DISCRIMINATION" (PDF). U.S. Government Publishing Office. February 10, 1995. p. 7888. Retrieved 2018-07-16. See also Zuniga-Perez v. Sessions, 897 F.3d 114, 122 (2d Cir. 2018) ("The Constitution protects both citizens and non‐citizens.") (emphasis added).
  36. 8 U.S.C. § 1101(a)(43) ("The term [aggravated felony] applies to an offense described in this paragraph ... for which the term of imprisonment was completed within the previous 15 years.") (emphasis added); Matter of Vasquez-Muniz, 23 I&N Dec. 207, 211 (BIA 2002) (en banc) ("This penultimate sentence, governing the enumeration of crimes in section 101(a)(43) of the Act, refers the reader to all of the crimes 'described in' the aggravated felony provision."); Luna Torres v. Lynch, 578 U.S. ___, ___, 136 S.Ct. 1623, 1627 (2016) ("The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law."); see also 8 CFR 1001.1(t) ("The term aggravated felony means a crime ... described in section 101(a)(43) of the Act. This definition is applicable to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date.") (emphasis added).
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