Immigration Appeals and Motions

Law books in a rowI have represented hundreds of clients with their immigration appeals and motions with immigration courts, the Board of Immigration Appeals (“BIA”), and the U.S. Citizenship and Immigration Services. I have successfully argued complex appeals and motion that have resulted in cases being reopened to allow my clients to pursue various forms of immigration benefits.

If you are considering an immigration lawyer to help you with your appeal or motion, then make sure the lawyer has experience with handling appeals and motions, especially with time constraints, because there are very strict deadlines for appeals and motions.

Appeals Process

Appealing a Decision of an Immigration Judge

If you went through the immigration court process and the judge denied discretionary relief, (such as cancellation of removal, asylum, or adjustment of status, etc.), then you have the right to file an appeal to the Board of Immigration Appeals (“BIA”), which is located in Falls Church, VA. The BIA is the highest administrative tribunal in the immigration process. The BIA’s decision is the final administrative decision on an immigration case. With few exceptions, the BIA’s decision can be challenged in a federal appeals court. While most decisions of the BIA for individual appeals are unpublished decisions, from time the time, the BIA issues precedent decisions of important legal principles that are binding nationwide in immigration matter. The U.S. Attorney General is the head of the BIA, and often times, the Attorney General also issues decisions in immigration matters.

Just as you have the right to appeal if you lose, the Department of Homeland Security has the right to appeal if you win. No matter who files the appeal, there is a strict 30-day deadline to file an appeal.

Appeals to the BIA are done through written legal work, and appeals process usually does not involve courtroom-like oral arguments or testimony. This means the BIA will base its decision on the written and oral record that was developed in immigration court (such as testimony taken at a merits hearing and evidence that was submitted, as well as legal issues and challenges raised during the proceedings) and the written arguments raised on appeal, ultimately identifying the Immigration Judge’s mistakes (usually the case where you file the appeal after being denied relief) or finding that the Immigration Judge correctly granted relief (usually the case if the Department of Homeland Security files the appeal if you win your immigration court case).

After both sides have submitted legal briefs, the BIA will then issue a written decision either affirming the appeal or dismissing it. While the BIA usually issues a written decision explaining its decision either affirming or denying an appeal, under the regulations, the BIA can “affirm without opinion” the decision of the Immigration Judge. If the BIA chooses to affirm without opinion, then it will not give

an explanation about its decision.

If you succeed on your appeal, you may be granted the relief you sought from the immigration court (such as cancellation of removal, asylum, or adjustment of status), or in certain cases, the BIA can “remand” your case to the immigration court (such as to allow you to pursue a new form of relief that was not previously available to you, or to ask the judge to develop a better record so that the BIA can decide an appeal, etc.)

If you lose your appeal, you may still have options available to you, such as filing a motion to reconsider, motion to reopen, and/or filing a petition for review in a federal court challenging the BIA’s decision. Because these events are time-sensitive, it is a good idea to consult with an experienced immigration attorney as soon as possible after you receive the BIA’s decision.

Appealing a Decision of the USCIS

If you or your relative filed a petition or an application for an immigration benefit, such as an I-130 visa petition, an I-601 waiver of inadmissibility, or an application for naturalization, and if the USCIS denied that benefit, then you may be able to file an appeal with the USCIS.

NOTE: While the USCIS usually has jurisdiction over an appeal for a benefits application it has denied, the BIA maintains authority over appeals of I-130 petition denials. Also, there is no appeal from a denial of an application for adjustment of status (Form I-485), although you may be able to file a motion to reconsider or reopen the denial.

Just like with the BIA, the USCIS has strict deadlines in which to file an appeal with the USCIS. Therefore, if you are considering an appeal with the USCIS, it is a good idea to consult with an experienced immigration attorney to discuss your appeal and options.

Motions Process

While you may have a right to an appeal, there is no right to a motion either with the immigration court or the BIA. Motions, such as motions to reconsider, motions to reopen, or motions to remand, are ancillary requests and subject to a discretionary decision by the adjudicator.
Motions to the Immigration Courts

The most common type of motion filed with an immigration court is one to ask the court to rescind an in absentia removal (or deportation) order that was entered against someone when he or she failed to appear in court for a scheduled hearing. When someone has proper notice of hearing date, time, and place, he or she can be ordered removed in his or her absence.

If you have an in absentia deportation or removal order against you, then you must have that case reopened first before you can seek any discretionary relief. You should file your motion as soon as possible after discovery of the order, so it shows your initiative to try to fix your immigration situation.

If the immigration judge denies a motion to reopen the in absentia order, you may have the options to file either a motion to reconsider (with the immigration court) or an appeal with the BIA. Because a motion to reconsider or an appeal is time-sensitive, you should consult with an experienced immigration lawyer to discuss your options.

Other types of motions filed in immigration courts include motions to change venue (transfer a pending removal proceeding from one court to another), bond motions (to seek the release of a detained alien in removal proceedings), motions to terminate proceedings, etc.

Motions to the USCIS

While certain discretionary relief denials can be appealed to the BIA, others must go through the motions process with the USCIS. The most common motion to the USCIS are motions to reconsider and/or reopen a denial of an application for adjustment of status (Form I-485) and a denial of an application for employment authorization (Form I-765).

If your application for permanent resident status or employment authorization has been denied, you have a limited time to file a motion to reconsider and/or reopen with the USCIS. There is a filing fee to file the motion. You should consult with an experienced immigration attorney soon after you receive a denial to discuss your options.

I have helped hundreds of people with their appeals and motions, both with the BIA and with the USCIS. If you have been denied relief by an immigration judge, or if the USCIS has denied your application for a benefit, contact me to discuss your options.

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