Filing an immigration appeal in the US

For many people dealing with an immigration issue in the United States, receiving an unfavorable decision from an immigration judge can be a particularly difficult experience. While the denial letter may seem like the end of the road, it is important to be aware of your rights going forward.

In fact, following an adverse decision from an immigration judge, an individual may file an appeal to have his or her case reevaluated. Often, the immigration judge will review the case again, to determine whether it should be reopened or reconsidered. Typically, a motion to reopen a case will be brought if there are new facts to be considered. A motion to reconsider the case may be brought if there are new legal arguments to be made.

If the original immigration judge declines to reopen or reconsider the case, however, the individual may still file an appeal. In immigration cases, appeals may be heard by one of two governing bodies: the Administrative Appeals Office or the Board of Immigration Appeals. The type of case determines which agency is appropriate for the appeal.

The Administrative Appeals Office

The Administrative Appeals Office is part of the U.S. Citizenship and Immigration Services, or USCIS. The Administrative Appeals Office - or AAO - hears appeals in about 50 types of immigration cases.

Among the cases heard by the AAO are the following types of appeals:

  • Applications for Temporary Protected Status, or TPS
  • Many employment-based visa petitions, both for immigrants and nonimmigrants
  • Fiancé(e) petitions
  • Applications for permission to reapply for admission after deportation
  • T and U visa applications and petitions and adjustment of status applications

When an appeal is filed to the AAO, the USCIS office involved in the original denial will look at the appeal first. In some cases, the USCIS office may change its decision, avoiding the need for a review by the AAO. If the USCIS office does not alter its decision, however, the appeal will come before the AAO.

Most of the decisions issued by the AAO are based on already established law and policy. These are referred to as non-precedent decisions. In some cases, the AAO may determine that a change in established legal interpretations or policy is necessary. In such situations, the Attorney General must approve a precedent decision, which would then serve as the binding precedent in future cases.

The Board of Immigration Appeals

The Board of Immigration Appeals is part of the U.S. Department of Justice.

In 2002, the Attorney General made significant changes to the Board of Immigration Appeals, or BIA. In response to a large backlog of cases, the Attorney General revamped the process by which the BIA heard immigration appeals. In addition, the number of Board members was reduced from 19 to 11.

Now, there are no more than 15 members of the BIA at any given time. Typically, one Board member will review a case and make a decision independently. If the Board member is unable to make a decision on his or her own, due to the complexity of the case, it is brought before a three-member panel.

Among the immigration appeals cases heard by the BIA, include:

  • Orders of removal
  • Applications for relief from removal
  • The exclusion of individuals who applied for admission to the U.S.
  • Petitions to classify the status of relatives for preference immigrant visas

In most cases, decisions made on appeal are based on the written record. The BIA will conduct a so-called paper review, and issue a decision based on the facts contained therein. In rare circumstances, the BIA may decide to hear oral arguments in the case. In such situations, the arguments are typically heard in Virginia, where the BIA is located.

Filing an appeal

When an adverse decision is received, it is important to carefully review the information contained therein. In most cases, individuals have 30 days to file an appeal from the date of the initial denial. If the appeal is not filed in a timely manner, the original decision will become final.

In addition, while filing a brief is not a requirement in immigration appeals, providing a detailed explanation of the reasons for the appeal is advisable. In such cases, it is a wise idea to consult with a knowledgeable immigration lawyer, to ensure the appropriate information is presented in the appeal.

The process for filing an appeal can be complex, as it requires the completion of the right type of form in a timely fashion. For instance, when filing an appeal to the AAO, generally an individual will have to complete Form I-290B, a Notice of Appeal or Motion. In some cases, however, Form N-336 must be completed - namely when the appeal is filed on an N-400 decision, an Application for Naturalization. Form N-336 is a Request for a Hearing on a Decision in Naturalization Proceedings. Navigating through the appropriate paperwork can be difficult, and discussing the case with a skilled legal professional can ensure the appeal is filed properly.

After an adverse appeals decision

If you are dissatisfied with a decision issued by the AAO or BIA, there are still opportunities to continue the appeals process. There is no reason to assume your case is over following an initial unfavorable response to an appeal.

Following an adverse decision from the AAO, the case may be sent to the BIA. The BIA is considered the "highest administrative body for interpreting and applying immigration laws."

Generally, appeals to a decision issued by the BIA will be reviewed by a federal court. If an unfavorable decision is issued in federal court, the case could be appealed as high as the U.S. Supreme Court.

Seek the advice of an immigration attorney

Filing a successful appeal in an immigration case can be a complex process, involving a detailed knowledge of the law. If you have received a denial in an immigration case, you should consider all of the options available to you.

Taking the time to talk to a skilled immigration attorney could prove beneficial in obtaining a favorable resolution in your case. Consider discussing your immigration appeal with the attorneys at the Law Offices of Raymond Lo, LLC, to ensure your interests are protected.