Immigration Appeals

What Is the Board of Immigration Appeals (BIA)?

The BIA, which is a part of the Department of Justice, is the highest court in the country for interpreting and adjudicating immigration law. In the event that an immigration judge renders a decision that is contrary to your interests, you can appeal that decision to a higher court. 

In the case of immigration matters, the BIA is that court. They will review your case and ensure that the lower court did not make any mistakes in the process of reaching their decision.

The BIA only hears appeals from cases adjudicated by immigrants judges. It does not hear appeals on decisions rendered from USCIS (U.S. Citizenship and Immigration Services). Those cases must be appealed with AAO (Administrative Appeals Office).

What Types of Decisions Can I Appeal With the BIA?

The BIA reviews the decisions of immigration judges. There are only two kinds of decisions that they do not review:

1. Credible fear determinations and
2. Reasonable fear determinations

These are petitions for asylum based on a credible or reasonable fear of persecution in one’s own country. They are administered by the USCIS.

Decisions that you can appeal with the BIA include:

• Deportation, including orders of removal and applications for relief from removal
• Bond hearings
• Denial or delay of citizenship
• Visa petition issues:
  °including the exclusion of aliens applying for admission,
  °petitions to classify the status of aliens applying for admission, and
  °petitions to classify the status of alien relatives for issuance of preference immigrant visas
• Motions for reopening and reconsideration of decisions previously rendered
• Asylum
• Waivers of inadmissibility
• Family-based immigration petitions
• DHS fines and penalties

There are some decisions, however, that you cannot appeal to the BIA. These include:

• Decisions rendered against those who have already been deported
• Credible or reasonable fear determinations
• The majority of visa petitions
• DHS denials for adjustment of status

These decisions can be appealed; they simply cannot be appealed with the BIA. Usually, you must appeal to the AAO.

How Long Do I Have to Request an Appeal?

Either party may appeal an immigration judge’s decision within 30 calendar days. It’s important to note that calendar days are different from business days. The Board must receive the notice within 30 days of the decision unless the due date falls on a holiday or a weekend. In that case, it would be the following business day.

In order to avoid confusion and a summary dismissal of your appeal, it’s important to appeal the decision as soon as possible.

What Is the Process for Appealing Before the BIA?

After the immigration judge has rendered a decision against an immigrant, he or she will ask if the immigrant wishes to appeal the decision. If the immigrant responds “no”, then the deportation process will begin immediately. The immigrant should instead say that they either will appeal or reserve the right to appeal to delay the deportation process.

For immigrants who did not retain counsel during the initial hearing, the judge will provide them with a guide that includes the forms necessary for filing an appeal. While there are those who choose to represent themselves in matters before the BIA, an appeal is quite different from the petition process. In the appeal, you must show how the judge’s decision went against established precedent or law. It’s a complex process. Most would be in a much better position with an experienced immigration appeals attorney managing the case instead of trying to navigate the system themselves.

Does an Appeal Automatically Grant a Stay from Deportation?

For certain types of cases, an appeal will automatically grant a stay from deportation. In other words, the court will block the DHS from deporting an immigrant during the appeals process. For instance, if a petitioner appeals a deportation order on the merits of his or her case, the judge will usually grant a stay while BIA renders their decision. BIA decisions can take between 6 and 12 months, sometimes longer depending on the complexity of the case or the number of appeals they are handling.

In other cases, the stay could be granted at the discretion of the judge or the BIA. This is especially true in cases where an appeal is granted on a procedural technicality. Your lawyer can guide you through this process and make recommendations on how you should handle a deportation order while you are appealing the decision.

Effective Advocacy Before the Administrative Appeals Office (AAO)

The AAO reviews decisions made by Citizenship and Immigration Services (USCIS) adjudications officers on petitions and applications for immigration benefits. The AAO rules on a variety of immigration matters, such as proceedings under the Immigration Reform and Control Act (IRCA) and denials of the following petitions and applications:

• H, L, O, P and Q nonimmigrant visa petitions
• EB-2 and EB-3 immigrant visa petitions
• Applications for Temporary Protected Status
• N-470 Applications to Preserve Residence for Naturalization
• N-600 Applications for Certificate of Citizenship

source: abogadolozano

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