Appeals and Motions

Immigration Appeals and Motions

IMMIGRATION APPEALS AND MOTIONS

I 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.

Appeals and Motions

Appeals and motions to the immigration court, Board of Immigration Appeals, or to USCIS are time sensitive and require strict adherence to procedures, which if you do not follow, may result in rejection or denial of your appeal or motion. Under most circumstances, you only have 30 days from the date of the adverse decision to file an appeal or a motion, so it is crucial to contact an immigration attorney as soon as you receive the decision, since the clock begins to tick on the appeal or motion deadline!

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.

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 While most decisions of the BIA for individual appeals are unpublished decisions, from time the time, the BIA issues precedent decisions of important legal principles that are binding nationwide in immigration matter.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.

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 Board of Immigration Appeals

Motions to the BIA are time sensitive, just like motions to immigration courts or to USCIS. Most motions to BIA also require a filing fee.

Motions to reconsider a previous denial of a case by the BIA must be filed within 30 days. A motion to reconsider challenges a previous denial of a motion by the BIA, and you can only challenge errors of law or fact.

Motions to reopen for new evidence must be filed within 90 days of the BIA’s last decision (which is usually the decision dismissing an appeal). However, arguments can be made for late-filed motions, depending on the circumstances! Motion to reopen must be supported by new, previously unavailable evidence.

You can also file a motion with the BIA at any time under its sua sponte reopening authority, although you will have to show that you exercised due diligence in pursuing your case even though the motion is not timely.

Other types of motions typically filed with the BIA include motions to remand (while an appeal is pending) or a motion jointly filed by both parties to the case (you and DHS).

The BIA is bound by its own precedent cases, as well as precedent cases from the U.S. Supreme Court and/or the circuit court of appeals in which jurisdiction your case arose.

If you are considering filing a motion to reconsider or a motion to reopen with the BIA, it is a good idea to consult with an immigration lawyer who can review your case and give you an honest assessment about the strength of your case.

Putting together a strong motion package requires a lot of work, but if presented persuasively, you can succeed in having an adverse decision reconsidered or your case reopened!

Having a case reopened may provide an avenue of relief from removal that you may not have had otherwise! It can also help you to remain in the United States without the fear of deportation and if you are eligible to obtain a green card without having to leave the country, then also adjust your status if otherwise eligible.

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 noncitizen 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.

Testimonials

A. Feliciano (NJ)

“Ruchi has been an amazing lawyer since day one. Her years of expertise and wisdom has made the process very easy and stress free for my husband and I. While working with her, she was professional, patient, gave clear direction, and is very down to earth. Ruchi, I cannot thank you enough for all you’ve done for us!”

Ivett S. (New York)

“Me and my husband are very happy, and would like to Thank YOU to help us in every and each step of our way. We were informed all the time, and we could count on you in every minute. Will keep in contact, we would love to count on you in the future to continue with our case until the last step!! Thanks So Much Ruchi 🙂 !!!!”

Mr. & Mrs. M.

“We needed an immigration attorney to help us apply for an adjustment of status based on marriage. We initially approached this law firm after researching immigration attorneys on the Web. Our main reasons were that [Ms. Thaker} appeared to have many satisfied clients and we didn’t want a big firm because we were looking for a firm that would be able to provide more personalized services. We found [her] to be very professional, highly experienced and we appreciated [her] attention to detail. We particularly appreciated that [she was] easy to get a hold of, available to discuss our concerns and patient enough to answer our questions. Whenever we contacted the firm, Ruchi answered the phone. If we sent [her] an email, we’d get prompt replies; once we sent an email late at night and we still got a reply that same evening. [She] always followed up to make sure everything was on track and always kept us informed of relevant developments. Our adjustment of status was approved and we received the green card about 4 months after we submitted our application. If you need an immigration attorney, we highly recommend that you talk to this law firm.”

V.K.

“Making life happier! My wife was in deportion/removal and in 10yrs ban for any legal immigration benefits. But because of Ruchi Thaker prompt, fast, and accurate actions now she has work permit, social security#, driver’s licence. Very soon, again with Ruchi Thaker prompt & fast legal actions, she’ll be green card holder. Ruchi Thaker, first step was to motion to re-open for the old 9yrs case which is big IMPOSIBLE for any lawyer. Within 2 months of hard case study, making all impt crucial paper work, she applied for motion to re-open and with 2 months from there motion to re-open for my wife was APPROVED. As a result, we do not get any more nightmares of my wife deportation, instead now she is legal here and we are waiting for her green card application to be APPROVED. If you are looking for any legal advice, from immigration point, take my word for it go nowhere but stick with [Ms. Thaker’s] law firm. You are not only choosing the BEST, but [a lawyer] who [is] fast, really work hard for your case, and make impossible into POSSIBLE.”

C. Clements (NY)

“Ruchi Thaker is an excellent attorney, extremely professional, very knowledgeable, and really cares about her clients and attaining a positive outcome for her clients. There are many attorneys that one can turn to, but my wife and I highly recommend Ruchi Thaker. We utilized Ruchi Thaker to handle the immigration case of my wife for her Permanent Residency (Green Card) application. From the onset, Ruchi was very professional and helpful in navigating the system. She conducted a very thorough interview to gather the necessary information from us, explained all of the forms, walked us through the application process and what we could expect, gave a detailed list of the documents and information that we needed to gather, and handled everything in a way that made the process understandable, as easy as possible for us, and in a manner that showed she truly cared about us and attaining the positive outcome we sought. Throughout the process, Ruchi stayed in constant contact with us, sent reminders of upcoming dates and procedures, and basically handled everything for us. Obviously, we had to supply her with the documents needed for the various application forms, but she organized everything and handled everything else. In the end, my wife’s application for Permanent Residency status was approved. Given the help and thoroughness of Ruchi everything went smoothly and we were definitely prepared for the interview at USCIS. In conclusion, we could not be more satisfied, pleased, and happy with the level of service provided and way that Ruchi Thaker handled our case. Ruchi Thaker is, in our opinion, the best immigration attorney there is and we will definitely be turning to her again when my wife will apply for her citizenship in a couple years time. If you need an immigration attorney, we highly recommend Ruchi Thaker.”

Rodrigo

“I hired Ms. Thaker in early 2010 because I had a deportation order since 1996 after I overstayed my voluntary departure. No lawyers were able to help me. I lost my job of over 20 years because my employer got scared that I will be deported and they will be punished for hiring me. I was desperate. I went to see Ruchi and her law firm and they took their time to listen to everything that happened in my case since the 90s. They were smart and asked all the right questions to get to the bottom of the problem in my case and how to fix it. I hired them immediately to help reopen my case. Both were very honest and told me it would be extremely difficult because of certain facts of my case, but they promised to do their best job. And they delivered!! I worked very closely with Ruchi to put my case together (she asks questions, calls, sends emails, makes sure all document collection is going as scheduled, works with family members if needed and things like that). They did not charge an unreasonable fee for the amount of work that needed to be done and when I saw a copy of the motion Ruchi prepared, I knew in my heart that we would win. The motion had to be joined in by the government lawyer, and I was warned that it would be hard to convince one lawyer at the DHS to agree to reopen my case. But Ruchi constantly followed up with the government lawyer to see if she needed anything else, wanted to discuss the case and that sort of thing. Recently, I got the most wonderful call from the firm, who told me that the government lawyer agreed to join in the motion to reopen my old case (even though I overstayed voluntary departure years ago). I started crying because I was so happy that I will now get a chance to get my green card and stay here with my children and grandchildren. I am going back to hire the firm for the rest of my case. If I had known them much earlier, I think I would have been a citizen by now. But all good things happen for a reason and I know there was a reason these two amazing lawyers came in my life. I will never go to any other immigration lawyer!”