The petition for review
After the Board of Immigration Appeals decides, the next step is a petition for review in the United States court of appeals for the circuit where the immigration judge completed the case, filed within 30 days of the Board's decision. Filing a motion with the agency does not extend that deadline, and the petition does not stop your removal by itself. What the court can review is limited by statute, and the Supreme Court has spent the last several years drawing the lines.
Current as of September 2026. We re-check this page every quarter and after any rule change.
The petition for review is the only route from the Board of Immigration Appeals to an Article III court. It is not a new trial and not a second appeal on the facts. It asks three federal judges whether the agency made a legal error, and it is governed by INA 242, which sets the deadline, the venue, the absence of a stay, and the limits on what the court may hear. The comparison with the agency-side vehicles is at after a removal order.
30 days from the Board's decision, and no motion extends it
Under INA 242(b)(1), the petition must be filed within 30 days of the final order of removal. Under Stone v. INS, 514 U.S. 386 (1995), that clock is not tolled by filing a motion to reopen with the agency; the two run separately, and a person who waits for the Board to decide the motion has usually lost the petition. In Riley v. Bondi, 606 U.S. 259 (2025), the Supreme Court held that the 30-day deadline is a non-jurisdictional claim-processing rule, and that where DHS itself issued the removal order (there, an administrative removal order under INA 238(b)), that order is the final order of removal and the 30 days runs from it, not from the Board's later decision in withholding-only proceedings. We treat the deadline as absolute regardless of its label.
Where it is filed
Under INA 242(b)(2), the petition is filed in the court of appeals for the circuit in which the immigration judge completed the proceedings. That is fixed by where the case was heard, not by where you live now or where you are detained. A case completed in the New York courts goes to the Second Circuit. A case completed in Newark goes to the Third Circuit. A case completed in the Miami courts goes to the Eleventh Circuit. Because a change of venue during the case can move the circuit, it can also move the law that will govern the petition, and that is one of the things weighed before venue is sought.
Where we are admitted
Mikhail Usher is admitted to the United States Courts of Appeals for the First, Second and Third Circuits. Alexander Susi is admitted to the Second Circuit. Matters in the Eleventh Circuit, where petitions from the Miami courts are filed, are handled with admission to that court or together with local counsel. We tell you which at the outset.
No automatic stay, and the Nken motion
Under INA 242(b)(3)(B), filing a petition for review does not stay the removal order. ICE can execute the order while the petition is pending unless a court orders otherwise. The request is a motion for a stay of removal, decided under Nken v. Holder, 556 U.S. 418 (2009): the likelihood of success on the merits, irreparable injury absent a stay, injury to the other party, and the public interest, with the first two the most critical. The motion is a brief on the merits in miniature, filed early, and where removal is scheduled it is filed with the petition itself.
In the Second Circuit, the court of appeals has described a government forbearance policy: while a petition for review is pending there, the government has assured the court that removal will not occur, and if forbearance is withdrawn in a case the petitioner may promptly apply for a stay. In re Immigration Petitions for Review Pending in the U.S. Court of Appeals for the Second Circuit, No. 12-4096 (2d Cir. Oct. 16, 2012) (en banc), reported at 702 F.3d 160. The policy is the government's, not a court order, and it can end; we prepare the stay motion so it can be filed the day it does. We do not publish whether any other circuit has a comparable arrangement. In the First, Third and Eleventh Circuits we file the stay motion with the petition, ask for emergency consideration where removal is scheduled, and treat the case as unprotected until the court rules. The full map is at stays of removal.
Two interactions to know. Under 8 C.F.R. 1240.26(i), filing a petition for review during a voluntary departure period terminates the grant of voluntary departure and the alternate removal order takes effect. And a petition for review is separate from a motion to reopen: the petition reviews what the Board decided, and the motion asks the agency for something new. They are often filed together, on their own deadlines.
Exhaustion
INA 242(d)(1) permits the court to review a final order only if the petitioner has exhausted the administrative remedies available as of right. In practice that means the issue was raised before the Board. In Santos-Zacaria v. Garland, 598 U.S. 411 (2023), the Supreme Court held that the exhaustion requirement is not jurisdictional, so it can be waived or forfeited by the government, and that it does not require a motion to reconsider to exhaust an error the Board itself made in its decision. What it still requires is that the arguments made to the court were made to the Board first, which is why the Notice of Appeal and the brief to the Board are drafted with the petition in mind.
What the court can and cannot hear
INA 242(a)(2) removes some decisions from the courts' jurisdiction, and 242(a)(2)(D) puts some of them back. The Supreme Court has decided a series of cases on where the lines fall.
| Provision | What it does | Decision | Holding |
|---|---|---|---|
| INA 242(a)(2)(B) | Bars review of discretionary judgments, including the grant or denial of cancellation, adjustment and the waivers | Patel v. Garland, 596 U.S. 328 (2022) | The factual findings underlying a denial of discretionary relief are unreviewable |
| INA 242(a)(2)(C) | Bars review of most final orders against a person removable for certain criminal offenses | Nasrallah v. Barr, 590 U.S. 573 (2020) | An order denying CAT protection is reviewable notwithstanding the criminal-ground bar |
| INA 242(a)(2)(D) | Preserves review of constitutional claims and questions of law, whatever (B) and (C) say | Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) | "Questions of law" includes the application of a legal standard to established facts |
| INA 242(a)(2)(D) | Same | Wilkinson v. Garland, 601 U.S. 209 (2024) | Whether established facts meet the exceptional and extremely unusual hardship standard for cancellation is a mixed question the court can review |
| 8 U.S.C. 1252(b)(4)(B) | Findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise | Urias-Orellana v. Bondi, No. 24-777 (Mar. 4, 2026) | The persecution determination is reviewed for substantial evidence; reversal only where the record compels it |
The pattern is this. The court will decide whether the agency used the right legal test and whether it applied that test correctly to the facts the agency found. It will not re-find the facts, and it will not second-guess the exercise of discretion. After Wilkinson, a hardship denial in a cancellation case can be reviewed as a mixed question; after Patel, the findings about what the hardship actually is cannot. After Urias-Orellana, the agency's findings on persecution stand unless the record compels the opposite conclusion.
What this means for the case in front of the judge
Because the court of appeals defers to the agency on the facts and cannot touch discretion, the petition is won or lost on the record and the legal framing built at the individual hearing and in the brief to the Board. Evidence that was not offered is not in the record. A legal argument that was not made to the Board was not exhausted. The petition for review is the last step, and it depends on every step before it.
What the petition asks for
The court can deny the petition, which leaves the Board's decision in place, or grant it, which almost always means vacating the Board's decision and remanding the case to the agency to decide again under the correct legal standard. The court does not itself grant relief. A remand puts the case back before the Board, and often back before the immigration judge, with the error corrected and the rest of the case still to be decided.
The sequence, in order
- Calendar the 30 days from the Board's decision the day it arrives. Nothing extends it.
- Decide whether a motion to reconsider or reopen is also warranted, and file it on its own clock without relying on it to protect the petition.
- File the petition in the correct circuit, the one where the immigration judge completed the case.
- File the stay motion, with the petition if removal is scheduled, under Nken.
- Identify the reviewable questions. Constitutional claims, questions of law, and the application of law to established facts. Frame each one so that it falls under 242(a)(2)(D).
- Brief from the record. The administrative record is the only evidence.
Read next: the BIA appeal, stays of removal, motions to reconsider, or reinstatement of removal.
Common questions
How long do I have to file a petition for review?
Thirty days from the final order of removal, under INA 242(b)(1). For most people that is the date of the Board's decision dismissing the appeal or denying the motion. The deadline is not extended by filing a motion to reopen with the agency, under Stone v. INS, 514 U.S. 386 (1995). In Riley v. Bondi, 606 U.S. 259 (2025), the Supreme Court held that the deadline is a claim-processing rule rather than a jurisdictional one, and that where DHS itself issued the removal order, that order is the final order from which the 30 days runs, not a later Board decision in withholding-only proceedings.
Does a petition for review stop my removal?
No. Under INA 242(b)(3)(B), filing the petition does not stay the removal order. A stay is requested by motion under the four-factor standard of Nken v. Holder, 556 U.S. 418 (2009), where likelihood of success and irreparable injury are the most critical factors. In the Second Circuit, the court has described a government forbearance policy under which removal does not occur while a petition is pending there, and has said that if forbearance ends the petitioner may promptly apply for a stay. It is the government's policy, not a court order. Elsewhere, the stay motion has to be filed and decided.
Which court hears my petition?
Under INA 242(b)(2), the court of appeals for the circuit in which the immigration judge completed the proceedings. A case heard in New York goes to the Second Circuit; a case heard in Newark goes to the Third Circuit; a case heard in Miami goes to the Eleventh Circuit. Where the case was completed, not where you live now, decides it.
Can the court review a discretionary denial?
Only in part. INA 242(a)(2)(B) bars review of discretionary judgments, and 242(a)(2)(C) bars review of most orders against people removable for certain criminal offenses. But 242(a)(2)(D) preserves review of constitutional claims and questions of law, and under Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), and Wilkinson v. Garland, 601 U.S. 209 (2024), a question of law includes applying a legal standard to established facts. Under Patel v. Garland, 596 U.S. 328 (2022), the underlying factual findings in a discretionary-relief denial are not reviewable.
Tell us where your case is. We will tell you what is still possible.
You get a free case review with an attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will tell you what stage you are at, which forms of relief are open to you, what your deadlines are, and whether we can help. If we cannot, we will say so.