Understanding Immigration Appeals
Receiving a denial on your immigration application can be devastating, but it doesn't have to be the end of your journey. The U.S. immigration system provides multiple avenues for challenging unfavorable decisions, including appeals to the Board of Immigration Appeals (BIA), federal court litigation, and motions to reopen or reconsider your case. At Modern Law Group, our immigration appeals attorneys have extensive experience navigating these complex procedures and fighting for our clients' rights at every level of the appeals process.
Immigration appeals require a different skill set than initial applications. While preparing an original petition involves gathering evidence and completing forms, appeals work demands sophisticated legal analysis, persuasive brief writing, and a deep understanding of immigration law precedents. Our attorneys have successfully argued cases before the BIA and federal circuit courts, helping clients overturn denials and achieve their immigration goals even after initial setbacks.
Important:
Immigration appeals have strict deadlines. In most cases, you have only 30 days from the date of the immigration judge's decision to file a Notice of Appeal with the BIA. Missing this deadline can permanently forfeit your right to appeal.
Board of Immigration Appeals (BIA) Appeals
The Board of Immigration Appeals is the highest administrative body for interpreting and applying immigration laws in the United States. Located in Falls Church, Virginia, the BIA has nationwide jurisdiction to hear appeals from decisions made by Immigration Judges and certain decisions made by the Department of Homeland Security (DHS). Understanding how to effectively present your case to the BIA is crucial for a successful appeal.
What Decisions Can Be Appealed to the BIA?
The BIA has authority to review a wide range of immigration decisions, including:
- Removal (deportation) orders issued by Immigration Judges
- Asylum denials and withholding of removal decisions
- Cancellation of removal denials for both lawful permanent residents and non-permanent residents
- Adjustment of status denials in removal proceedings
- Voluntary departure denials and related bond decisions
- Waivers of inadmissibility denials such as I-212 and I-601 waivers
- NACARA and other special program denials
- Motions to reopen or reconsider denied by Immigration Judges
The BIA Appeals Process Step by Step
Filing an appeal with the BIA involves several critical steps, each with its own requirements and deadlines:
Grounds for BIA Appeals
To succeed on appeal, you must demonstrate that the Immigration Judge made an error. Common grounds for BIA appeals include:
- Errors of law: The Immigration Judge misinterpreted or misapplied immigration statutes, regulations, or case law.
- Factual errors: The Immigration Judge's factual findings were clearly erroneous and not supported by the evidence in the record.
- Due process violations: You were denied a fair hearing, such as inadequate interpretation, insufficient time to prepare, or denial of the right to present evidence.
- Abuse of discretion: The Immigration Judge exercised discretion in an arbitrary or unreasonable manner.
- Ineffective assistance of counsel: Your prior attorney's deficient performance prejudiced your case (requires meeting specific procedural requirements).
Note:
The BIA generally does not conduct new hearings or accept new evidence. Your appeal is based on the existing record from the Immigration Court. This makes it critical to build the strongest possible record during your initial proceedings.
Federal Court Appeals
If the BIA denies your appeal, you may have the right to seek review in federal court. Federal court review of immigration decisions is limited but can be essential when the BIA has made errors of law or violated your constitutional rights. Our attorneys have experience litigating immigration cases before the United States Courts of Appeals, including the Ninth Circuit, Fifth Circuit, and other federal appellate courts.
Petition for Review in Circuit Court
The primary mechanism for federal court review of BIA decisions is a Petition for Review filed with the appropriate United States Court of Appeals. This petition must be filed within 30 days of the BIA's final order. The circuit court where you file depends on where your immigration proceedings took place.
Federal court review is particularly important for cases involving:
- Constitutional claims: Arguments that the immigration proceedings violated your due process rights or other constitutional protections.
- Questions of law: Pure legal questions, including the proper interpretation of immigration statutes and regulations.
- CAT (Convention Against Torture) claims: Federal courts retain jurisdiction to review CAT claims even when other forms of relief are barred.
- Citizenship claims: Disputes about whether you are actually a U.S. citizen are reviewable by federal courts.
Limitations on Federal Court Review
Congress has placed significant limitations on federal court review of immigration decisions. Understanding these limitations is crucial for evaluating whether federal court litigation is appropriate for your case:
- Discretionary decisions: Courts generally cannot review decisions committed to agency discretion, such as the denial of cancellation of removal or voluntary departure.
- Criminal bars: Certain criminal convictions may limit or eliminate your right to federal court review under INA § 242(a)(2)(C).
- Factual findings: The BIA's factual determinations are reviewed under a highly deferential standard and are rarely overturned.
- Exhaustion requirements: You generally must raise all arguments before the BIA before you can raise them in federal court.
Stay of Removal:
Filing a Petition for Review does not automatically stop your removal from the United States. You must separately request a stay of removal from the circuit court, and the court has discretion whether to grant it. Obtaining a stay is critical if you are in custody or facing imminent removal.
Motions to Reopen
A motion to reopen asks the Immigration Judge or the BIA to reopen your case based on new facts or evidence that was not available at the time of your original hearing. Motions to reopen are a powerful tool for challenging prior removal orders, but they are subject to strict requirements and limitations.
When to File a Motion to Reopen
Common situations where a motion to reopen may be appropriate include:
- Changed country conditions: Conditions in your home country have changed significantly since your hearing, making you eligible for asylum or withholding of removal.
- New evidence discovered: You have obtained material evidence that was previously unavailable despite your diligent efforts.
- Ineffective assistance of counsel: Your prior attorney failed to properly represent you, and you can demonstrate prejudice (must follow the Lozada requirements).
- Fraud or misrepresentation: Your case was affected by fraud, including fraud by a notario or unlicensed practitioner.
- New eligibility for relief: Changes in law or your circumstances have made you newly eligible for relief, such as a marriage to a U.S. citizen.
Deadline Requirements
Generally, a motion to reopen must be filed within 90 days of the final administrative decision in your case. However, there are important exceptions to this deadline:
- Changed country conditions: There is no time limit for motions based on changed country conditions in asylum cases.
- Joint motions: The government may join in a motion to reopen at any time.
- In absentia orders: Special rules apply if you were ordered removed in absentia (without being present).
- VAWA cases: Victims of domestic violence may have extended deadlines under the Violence Against Women Act.
- Equitable tolling: In rare circumstances, courts may toll the deadline due to extraordinary circumstances.
Motions to Reconsider
A motion to reconsider asks the Immigration Judge or the BIA to re-examine its decision based on an error of law or fact in the original decision. Unlike motions to reopen, motions to reconsider do not involve new evidence—they argue that the adjudicator made a mistake based on the existing record.
Grounds for Reconsideration
A motion to reconsider must specify the errors of law or fact in the prior decision. Successful motions to reconsider typically demonstrate:
- The adjudicator misapplied controlling law or precedent
- The decision contained factual errors that affected the outcome
- Relevant evidence in the record was overlooked or mischaracterized
- The decision failed to address material arguments raised by the respondent
The deadline to file a motion to reconsider is 30 days from the date of the decision you are challenging. This deadline is strictly enforced, so immediate action is essential if you believe an error was made in your case.
Strategic Consideration:
In some cases, it may be advantageous to file both a motion to reconsider and an appeal simultaneously, preserving all your options while seeking the fastest resolution. Our attorneys can advise you on the best strategy for your specific situation.
USCIS Appeals and AAO Review
Not all immigration appeals go through the Immigration Court system. Denials of certain applications filed with U.S. Citizenship and Immigration Services (USCIS) can be appealed to the Administrative Appeals Office (AAO) or challenged through other administrative procedures.
Appeals to the Administrative Appeals Office
The AAO handles appeals of various USCIS decisions, including:
- Certain family-based and employment-based petition denials
- Immigrant investor (EB-5) petition denials
- Special immigrant petition denials
- Certain waiver denials
- DACA denial appeals (in limited circumstances)
Motions and Service Center Appeals
For some denials, you may file a motion to reopen or reconsider directly with the USCIS office that made the decision. Additionally, Form I-290B, Notice of Appeal or Motion, is used to appeal certain decisions to the AAO or to request that the original decision-maker reconsider. The filing deadline and fee requirements vary depending on the type of case.
What to Expect During the Appeals Process
Immigration appeals can be lengthy and complex. Understanding what to expect can help you prepare for the process ahead:
Timeline Expectations
Appeals timelines vary significantly depending on the type of appeal and the current backlog:
- BIA appeals: Currently taking 6-24 months from filing to decision, depending on complexity.
- Federal court petitions for review: Can take 1-3 years, with significant variation by circuit.
- Motions to reopen/reconsider: May be decided within 2-6 months, but complex cases take longer.
- AAO appeals: Processing times vary widely, from several months to over a year.
Staying in the United States During Appeals
Whether you can remain in the United States during your appeal depends on several factors:
- BIA appeals: Filing an appeal generally stays (pauses) your removal order while the appeal is pending.
- Federal court review: You must separately request a stay of removal; it is not automatic.
- Motions to reopen: Generally do not automatically stay removal; you may need to request a stay separately.
Work Authorization During Appeals
Your ability to work during the appeals process depends on your current immigration status and the type of appeal. In some cases, you may be eligible for employment authorization while your appeal is pending. Our attorneys can advise you on your specific situation and help you apply for work authorization if available.
Why Choose Modern Law Group for Your Immigration Appeal?
Immigration appeals require specialized knowledge and experience that not all immigration attorneys possess. At Modern Law Group, we offer several advantages for clients facing appeals:
Proven Track Record
Our attorneys have successfully handled appeals before the BIA and federal circuit courts, including cases involving complex legal issues and challenging factual situations. We have helped clients overturn removal orders, win asylum cases on appeal, and achieve favorable outcomes in cases that seemed hopeless after initial denials.
Experienced Legal Analysis
Appeals work requires careful analysis of the record, identification of legal errors, and persuasive legal writing. Our team includes attorneys with experience in appellate litigation who understand how to craft compelling arguments that resonate with adjudicators at the BIA and federal courts.
Comprehensive Case Review
We thoroughly review your case record, including transcripts, evidence, and prior filings, to identify all potential grounds for appeal. We leave no stone unturned in our search for errors that can form the basis of a successful appeal.
Clear Communication
We understand that the appeals process can be stressful and confusing. Our team keeps you informed at every stage, explaining legal developments in plain language and ensuring you understand your options and the progress of your case.
Multilingual Support
Our staff includes speakers of multiple languages, allowing us to communicate effectively with clients from diverse backgrounds. We can explain complex legal concepts in your native language and ensure nothing is lost in translation.
Free Case Evaluation:
If you've received a denial and are considering an appeal, contact us immediately for a free case evaluation. Time is critical in appeals cases, and early consultation gives us the best opportunity to protect your rights.
Critical Deadlines Summary
Immigration appeals have strict, unforgiving deadlines. Missing a deadline can permanently forfeit your right to challenge an unfavorable decision. Here are the key deadlines to remember:
Do You Need to Talk to an Immigration Appeals Attorney?
If you've received a denial from an Immigration Judge, the BIA, USCIS, or any other immigration authority, time is of the essence. The strict deadlines in immigration appeals mean that every day counts. Contact Modern Law Group today for a free consultation with an experienced immigration appeals attorney.
Our team will review your case, explain your options, and help you determine the best path forward. Whether you need to file an appeal, a motion to reopen, or explore other remedies, we're here to fight for your right to remain in the United States with your family.
Don't let a denial be the end of your story. Call us at (888) 902-9285 or text us at (619) 755-9822 to schedule your free case evaluation today.