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Can You Challenge a Vacated Removal Order?

By Robyn Hagan Cain | Last updated on

It's hard -- nearly impossible, in fact -- to win an immigration appeal if you're not appealing the correct removal order.

Nadeisha Lotha Fuller was admitted to the United States in 1992. In 2003, an immigration judge ordered Fuller removed on the ground that she had been convicted of an aggravated felony. Fuller asked the Board of Immigration Appeals (BIA) to reconsider that order. The BIA granted Fuller's motion, vacated the order of removal, and issued a new final order of removal.

By the time Fuller's attorney learned about the new order, the 30-day deadline to petition for review of the new order had passed, so Fuller petitioned the Second Circuit to review the older order. Her argument? The BIA's subsequent order left the reasoning of the prior order intact and vacated it in name only.

The Second Circuit disagreed, stating that the order granting Fuller's motion to reconsider both vacated and materially altered her prior order of removal.

(While the appellate court held that Fuller's petition was moot because the court couldn't provide effective relief from a removal order that had already been vacated, it declined to address whether a petition for review of a vacated order would present a live case or controversy if the order granting reconsideration and vacating the prior order left the reasoning of the prior order substantially intact.)

A petitioner may concurrently file a petition for review of a final order and move the BIA to reconsider that same order. The BIA's disposition of a motion to reconsider is a new final order; to seek review of that order, the petitioner must file a new petition for review.

Filing a motion to reconsider a final order does not affect the justiciability of a pending petition for review of that order, nor does the BIA's denial of a motion to reconsider. Neither the Supreme Court nor Second Circuit, however, had addressed the effect, if any, of the BIA's grant of a motion to reconsider on the finality of the underlying order.

Instead of statutory finality, the appellate court concluded that the proper doctrine to determine the justiciability of a vacated order is that of mootness. Here, the court found that it could not grant Fuller relief from the 2008 Order because that order had been vacated by the express language of the 2009 Order. Thus, the issue was moot.

Though Fuller lost her appeal, the court noted that she is not without recourse; while the vacated order is unreviewable, Fuller could obtain review on reconsideration if she succeeds in moving the BIA to reissue that decision.

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