The Federal Courts of Appeals have created a circuit split regarding “mixed petitions” to reopen removal proceedings. Mixed petitions, those brought under both a change in the petitioner’s personal circumstances and a change in the country conditions of the country of removal, need to be allowed in specific, but not all, situations.

The upward trend in quantity of removal proceedings over the past decade and beyond has created a surge of removal proceedings that even a properly trained and funded set of immigration courts would have difficulty handling. The immigration courts in the United States are both under-funded and oftentimes under-qualified to properly adjudicate the decisions.

When a petitioner brings an appeal to the appropriate Federal Court of Appeals, one hopes the final resolution would exemplify fair and uniform application of the particular statute. Instead, the Federal Courts of Appeals have created a split that leaves practitioners, aliens, and even immigration judges and the Board of Immigration Appeals (BIA) in the dark as to whether they should hear mixed petitions to reopen removal proceedings.

A test that removes some of the discretion from the immigration judge and provides the immigration judges and immigration courts with a definite and succinct set of rules when a mixed petition can be brought will remove part of the injustice recently created by the immigration courts.