APPEALS

 

Because the US immigration system requires patience and perseverance, appeals are often unavoidable.  Our firm is ready to take your case to a higher level.

What Is an Appeal?

An appeal is the formal process of taking a decision you don’t agree with to a higher authority.  In the immigration context, there are many forms of appeals.  Some decisions can be appealed; others can’t.  Some appeals go to a court; others go to a different DHS officer or office.  All appeals are strictly controlled by laws and regulations, and many have short deadlines.  Procedures may vary from district to district and change without much notice.  If you miss the deadline, or file the appeal with the wrong office, it may be denied.

Below is information about some of the most common appeals.  Our office can help you with these and other appeal matters:

Deportation Appeals & Motions to Reopen/Reconsider

In deportation proceedings, the Immigration Judge normally makes a decision on at least two matters:  whether you are deportable and, if you filed an application for relief (like asylum, permanent residence, voluntary departure, etc.), whether you qualify for that benefit.  The Immigration Judge may also issue decisions on bonds, motions or other procedural matters.

Most decisions of the Immigration Judge may be appealed to the Board of Immigration Appeals (“BIA”), a 15 member panel located in Falls Church, Virginia.  The BIA is the highest administrative body for interpreting and applying US immigration law.  Decisions of the BIA apply to all the Immigration Courts and DHS officers in the country, unless overturned by the US Attorney General or the federal courts.  Most decisions of the BIA are decided on the paper record.  In rare circumstances, attorneys will argue their case in person before the BIA.

Some – but not all – decisions of the BIA may be appealed to the US Court of Appeals in the district where the Immigration Judge’s order was issued.  Decisions of the Courts of Appeals may then be appealed to the US Supreme Court in Washington, DC.

In some cases, individuals wish to reopen their deportation cases because of changes in US law, country conditions back home or personal circumstances (marital status, children, immigration status, etc.).  Normally this is accomplished by filing either a motion to reopen or a motion to reconsider with the last office that issued a decision on the case (Immigration Judge, BIA, Court of Appeals, etc.).

Whether the motion fails or succeeds depends on how long the case has been closed and the reasons for reopening, among other factors.  Sometimes the only way to reopen a case is to convince the government not to oppose your motion.  In these cases, a knowledgeable immigration attorney can persuasively argue your case and negotiate with the government on your behalf.

Naturalization Application Appeals

Naturalization is the process Green Card holders go through to become US citizens.  Normally, a USCIS officer interviews an applicant on his or her naturalization application several months after it is filed.  The officer makes a decision based on the interview, the naturalization form and other materials contained in the applicant’s immigration file.

There are countless reasons why USCIS denies naturalization applications, including an applicant’s prior criminal or immigration violations; giving false information at the interview; or failure to meet the residence, English, US civics or good moral character requirements.

If USCIS denies the application, the applicant may request a new hearing on that decision with the local USCIS office by filing form N-336.  He or she should be interviewed by a different USCIS officer – usually one with more experience than the first – several months later and allowed to submit additional evidence in support of the application.

If USCIS denies the naturalization application again, the applicant has a right to full review of that decision in the US District Court.  A federal judge may then conduct a full-blown trial to determine whether the applicant qualifies for naturalization.

I-130 Family Petition Appeals

I-130s, or family petitions, are the first step towards permanent residence for many immigrants.  The US Citizen or permanent resident petitioner files the I-130 with USCIS.  If it is approved, the beneficiary may eventually apply for permanent residence (a “Green Card”) on form I-485.  If the I-130 petition is denied, the beneficiary is often put into deportation proceedings before an Immigration Judge.

Although you may file an I-485 application for permanent residence in deportation proceedings, the Immigration Judge may not approve it unless USCIS has first approved an underlying immigrant petition – normally an I-130 petition.  If USCIS denied the I-130 petition, the petitioner may appeal that decision to the BIA.  But if the beneficiary is now in deportation proceedings, he or she must convince the Immigration Judge to postpone deportation proceedings while the I-130 appeal is pending.

As you can see, these kinds of appeals can be very complicated, involving the petitioner and beneficiary, many different forms and at least three different government offices (USCIS, BIA and the Immigration Court).  Getting an attorney involved in your case at the earliest possible opportunity can help avoid denials that lead to appeals, or increase the likelihood that your appeal will succeed.

DID YOU KNOW?  At each stage of any appeals process, there are strict rules for when, where and how the appeal must be filed.  If you fail to follow these rules, your appeal may be denied and your case lost.  If you are considering any kind of appeal, a knowledgeable immigration attorney can help you file it properly and on time.

 

For more information about the deportation process, naturalization, or family petitions and Green Cards, visit these pages: