Why is This Significant Now
Specific provisions under IRCA’s Legalization and SAW programs allow for judicial review of those administrative decisions but ONLY in conjunction with the filing of a "Petition for Review" of a final order (of deportation, exclusion or removal) of the Board of Immigration Appeals.
In many instances, these statutory provisions authorizing for judicial review of denial decisions under the Legalization or SAW programs may be the best opportunity yet, which such noncitizens may have at obtaining appropriate redress of their original claims, including ultimately the ability of obtaining legal status in the United States.
This is especially true after the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) legislation where noncitizens whom were ordered removed from the United States after their applications for relief were denied "in the exercise of discretion" and, where judicial review of such discretionary denials have been substantially curtailed by the enactment of numerous provisions of IIRAIRA precluding judicial review of discretionary decisions.
It is essential for the noncitizen in such a case to bring any Legalization and SAW program administrative decision to judicial review “readiness”. This means in some cases that the current administrative record of a noncitizen's Legalization or SAW program application and denial will require further action from the part of the noncitizen who is (or will be) seeking judicial review of that decision at a later time, in order to exhaust and preserve important issues for judicial review that were likely not exhausted or preserved.
More specifically, in many instances it may be necessary for the noncitizen to file an “untimely” appeal of a Legalization or SAW program denial in preparation for seeking judicial review of those decisions, if and when it is determined appropriate. Keep in mind that the federal court that will ultimately be reviewing the noncitizen's denial of the application for the legalization or SAW programs, will be restricted to the existing administrative record. If the existing administrative record of the legalization or SAW program that will be reviewed by the federal court (in conjunction with review of the denial of an order of removal, exclusion or deportation) is defective and-or incomplete, the federal court will be compelled to dismiss the petition for review of the legalization or SAW program denial because it was properly decided in the first place.
For example, assume an applicant filed a legalization application seeking to establish that she had been residing unlawfully and continuously in the United States during the statutory period mentioned above. Her application however was denied by the District Director on the grounds that the evidence she presented was insufficient to establish that she indeed was physically present during that period of time. More specifically, assume that the denial was precipitated by a proper finding that affidavits from third parties submitted with the application attesting that the applicant had indeed resided in the United States, were poorly and ineffectively prepared because they lacked specificity and/or because the person signing the affidavit did not establish that he had been physically present himself during the time in question. If the noncitizen appealed the decision to the LAU but failed to improve those affidavits of continuous physical presence (by providing effectively prepared affidavits) when the federal court reviews the decision of the LAU, it will not overturn the decision because it was properly decided.
Then what can be done now to remedy the problem?
The problem with the case scenario above is that the existing administrative record on the application for legalization pertaining to this applicant is the only record that will be made available to the federal court. And that of course is not good for the applicant for the reasons we just articulated above. In certain circumstances however, such applicant can move the AAO to introduce newly obtained evidence for its consideration, so that even if the AAO declines to follow your suggestion to grant reopening or reconsideration or to consider a new or belated appeal, all of the evidence accompanying the request for the AAO to exercise its discretion to reopen, reconsider or review on appeal the newly presented evidence will become available for consideration by the federal court at the time of review of the legalization denial (which occurs in conjunction with the review of the final order of removal, exclusion or deportation).
A noncitizen in this situation can file a Freedom of Information Request to obtain a copy of the Legalization or SAW program administrative record. If the FOIA request is made available to us, after a careful examination of the administrative record as it exists we will make whatever recommendations we believe may be necessary in order to render such decision more amenable or enable its readiness for obtaining meaningful judicial review (in the United States Court of Appeal) in conjunction with a Petition for Review of a final order of the BIA.
A noncitizen whom has been affected by a discretionary adverse final order of deportation, exclusion or removal from the BIA, where the judicial review preclusion clauses of IIRAIRA apply, may find that a Petition for Review on his or her application under the legalization or SAW programs is his or her last (and sometimes best) chance to obtain legal status in the United States.
Noncitizens who fall under these two described categories (SAW and Legalization applicants) should not underestimate the importance of seeking a copy of their files in preparation of the need to seek a petition for review of those decisions with a Court of Appeal of the United States.
Following these suggestions can only improve the noncitizens’ likelihood of success in his or her efforts in obtaining permanent legal status in the United States.