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If an alien disagrees with a BIA ruling, the alien may file a petition for review of that decision to the appropriate federal circuit court.  However, the Department of Homeland Security, the other party to the case, may not.  Because only an alien may appeal an adverse BIA decision, the federal courts never see cases in which an alien has been granted relief.

Following implementation of the restructuring regulation, more aliens are appealing BIA decisions to the federal circuit courts than ever before.  The rate of new petitions – the number of BIA decisions appealed to the federal courts compared to the total number of BIA decisions – has increased from an historical 5 percent (before 2002) to a current level of approximately 30 percent.  Prior to the new regulation, federal courts were receiving about 125 BIA case appeals per month – currently they are receiving more than 1,000 per month.  If the rate of appeal had remained the same as before 2002, this number would have been only about 200 per month.

It is also noteworthy that most of the numeric increase is limited to two circuits, the Second and Ninth, which also are the two jurisdictions with the largest number of appeals at the Board.  The number of immigration appeals filed monthly with the Second and the Ninth Circuits grew respectively from 533 and 2,670 in the fiscal year preceding the implementation of the reform regulation, to 2,550 and 6,583 for FY 2005.  The next largest circuit in terms of the Board’s case load is the Eleventh, which rose from 229 appeals to 572 for the same time period.

The Immigration Act of 1996 significantly changes many areas of judicial review.  In fact, the federal courts are now precluded from reviewing many types of cases over which they previously held authority.  In effect, the Act intends to eliminate in many respects the role of the federal courts in immigration matters.
   
Most of the changes are contained in §242 of the Immigration Act.  This section states that the federal courts shall have no jurisdiction to review decisions of immigration officers concerning aliens in expedited removal proceedings.  In addition no court shall have jurisdiction to review any discretionary decision regarding the granting of relief under §212(h), waiver of inadmissibility for criminal grounds; §212(i), waiver of inadmissibility for fraud or misrepresentation; §240A, cancellation of removal; §240B, voluntary departure; or §245, adjustment of status.  Likewise, no appeal is permitted in the case of an alien who is inadmissible or deportable by reason of having committed certain criminal offenses, or whose application for asylum was denied by the immigration service.
   
In cases in which an appeal to the federal courts is permitted, the petition for review must be filed in the Court of Appeals, which has jurisdiction over the case, which is the circuit where the immigration judge completed the case.  The petition for review must be filed in the court of appeals within 30 days of the removal order becoming final, and must be accompanied by the appropriate filing fee.  A copy of the petition must be served upon USCIS and/or ICE.
   
It must be noted that the filing of the petition for review does not automatically stay removal of the alien from the United States.  Therefore, a motion for stay of deportation or removal should also be filed with the appeals court.
   
Once the court of appeals has jurisdiction, it will establish a briefing schedule.  These limits can only be altered if the court, for good cause shown, orders differently.  If an alien fails to file a brief within the time required, the court must dismiss the appeal unless a manifest injustice would result.
   
If the decision of an appeals court were not favorable to the alien, the only recourse would be to file a petition to the US Supreme Court.