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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. In some jurisdictions, appellate tribunals will not rule on issues that are not raised in petitions for review. Some courts also prohibit parties from filing other motions (such as a motion for summary judgment) when they file petitions for review. 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. 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.
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. Beginning in the sixteenth century, the Court of King's Bench also gained the power to issue prerogative writs. 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". 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". 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. 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". 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.
Petition for review of an agency's order or judgment
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).
By containing the word "may" only, the above quoted provision becomes purely discretionary and not mandatory. 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." 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. 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. But under no circumstances can a court deprive a party of rights, 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. Filing deadlines do not apply to said individuals if §§ 1252(e) and 1252(f) are invoked.
^See, e.g., Cal. R. Ct. 8.500 (defining "Petition for review").
^Josephine K. Mason, The Un-Creation of Rights: An Argument against Administrative Disclaimers, 62 Hastings L.J. 559, 596 (2010).
^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.
^Jeffrey Gauger, Bosley v. Merit Systems Protection Board: Reviving the Waiver Test, 8 Fed. Cir. B.J. 9, 21 (1999).
^David M. Walker, The Oxford Companion to Law 198 (1980).
^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").
^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).
^ abNLRB 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 anddecisional 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)
^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.").
^ ab"Deprivation Of Rights Under Color Of Law". U.S. Department of Justice (DOJ). August 6, 2015. Retrieved . 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).
^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.
^ abSee 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 C.F.R.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).
^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).
^Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 Va. L. Rev. 1335, 1370 (1998).
^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).
^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 C.F.R.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).