Answers to Frequently Asked Questions About Immigration Appeals
What is an appeal?
An appeal is a request for a higher authority (an agency or court) to reverse or modify a decision by a lower authority. For example, you might appeal an order of removal by an immigration judge to the Board of Immigration Appeals (BIA). Usually, you would request an appeal if the lower authority made an error of law or fact or if something occurred to make the proceedings before the lower authority unfair.
What types of immigration decisions are subject to appeal?
In the immigration context, an appeal is only available for certain decisions. The most common types of appealable decisions are: (1) decisions to deny or revoke (cancel) an immigrant petition (I-130) for a relative; (2) denied applications for naturalization or citizenship; and (3) orders of removal from the United States (which often include denials of applications for relief from removal, such as asylum, cancellation of removal, adjustment of status, a waiver of inadmissibility, etc.).
Which court do I appeal to?
This depends on the type of decision being appealed.
- An appeal of an unfavorable decision by an immigration officer usually must be filed with the same U.S. Citizenship and Immigration Services (USCIS) office that made the decision, which then sends the entire case to the Administrative Appeals Office (AAO, formerly known as the AAU) or the BIA. If the AAO or BIA's decision is still unfavorable, then it sometimes may be challenged in the local federal district court.
- For orders of removal issued by an immigration judge, usually there is a right to appeal to the BIA. If the BIA affirms the order of removal, then you often may obtain review of that decision by filing a petition for review with the court of appeals for the region where your removal proceedings were held. The U.S. Court of Appeals for the Ninth Circuit reviews removal cases arising in Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon, and Washington.
What is the deadline for filing an appeal?
This is an extremely important question because late-filed appeals are prohibited under most circumstances. It also is a potentially confusing question, so you should consult a lawyer to determine the answer in your case. The deadline should be stated in the decision of the immigration officer or the immigration judge. Usually it is 30 or 33 calendar days, except only 15 or 18 days may be provided if an approved relative petition is revoked after notice. Petitions for review of an order of removal must be filed with the U.S. Court of Appeals within 30 days of the decision by the BIA. In all cases, filing requires that the USCIS, BIA or Court of Appeals actually RECEIVE the request for appeal before the deadline passes (a postmark before the deadline is NOT enough). However, if the last day to file falls on a Saturday, Sunday, or federally-observed holiday, then the deadline is extended to the first day thereafter that is not a Saturday, Sunday, or federally-observed holiday.
How do I file an appeal?
An adverse decision by an immigration officer or immigration judge should include instructions for requesting an appeal, including a form that must be completed and submitted. You use Form I-290B for AAO appeals, Form EOIR-26 for BIA removal order appeals, and Form EOIR-29 for BIA immigrant petition appeals. A filing fee is also required, unless an exception applies or a fee waiver is requested AND approved. Specific, legitimate reasons for appeal must be stated or the AAO or BIA may dismiss the appeal. Petitions for review to the U.S. Court of Appeals have a different format that varies slightly depending on the circuit where you will file. Instructions and assistance are available from the court clerk's office.
What does the court or agency charge to file an appeal?
The answer to this question changes occasionally, so make sure this information is up-to-date before filing. As of September 25, 2013: appeals to the BIA are $110, payable to "U.S. Department of Justice"; appeals to the AAO are $630, payable to "U.S. Department of Homeland Security"; petitions for review are $450, payable to "Clerk, U.S. Court of Appeals"; and original actions challenging other immigration decisions in the local federal court are $400, payable to "Clerk, U.S. District Court."
What happens after I file my notice of appeal or petition for review?
After you file your notice of appeal or petition for review, the record is prepared for appeal. The record includes transcribed oral testimony (if recorded), exhibits, and other documents received or issued by the court or agency below. The parties also receive an opportunity to file a brief. An effective brief provides an persuasive (but accurate) account of the facts of the case and then explains why the decision is contrary to the law. You must file a brief, unless your case is before the BIA or AAO, where you have the option of submitting detailed reasons for the appeal with your notice of appeal instead of in a separate brief. In a few cases, the court also requests oral argument. In oral argument, the judges question the lawyers in person about the law and the facts of the case. A decision by the court follows.
Can I submit new evidence on appeal?
Usually you cannot. However, additional evidence may be submitted on appeal to the AAO. If new evidence arises during an appeal to the BIA, you may request remand to the lower authority with an explanation of why the evidence was not available previously. Remand by the U.S. Court of Appeals based on new evidence is available only in very rare circumstances, although you may still be able to reopen your case before the BIA while the case is before the Court of Appeals. Certain facts, though, are so well known and indisputable that the AAO, BIA, or Court of Appeals may be able to accept them without remand. This is called "administrative notice" or "judicial notice."
How long does it take to decide an appeal?
There is no time limit, and it regularly takes anywhere from six months to four years or more depending on the court and the type of case. Cases where the noncitizen is in immigration detention receive the highest priority.
Can I remain in the United States while waiting for a decision on my appeal of an order of removal?
You have the right to remain in the U.S. during your appeal of an order of removal to the BIA. In fact, the BIA will dismiss your appeal if you depart the U.S. To remain in the U.S. during a petition for review to the U.S. Court of Appeals, you may request a "stay of removal." You should consider doing this immediately if you are in immigration detention. You may also wish to request a stay even if you are not in detention.
Besides appeals, what other options are there for challenging a decision by the immigration authorities?
Two other ways of challenging immigration decisions exist: motions to reopen and motions to reconsider. Unlike appeals, these requests are directed to the same immigration officer or judge that made the decision (not to a higher authority). A motion to reopen presents new facts that were not available previously. Typical motions to reopen assert: new eligibility for an immigration benefit, changed conditions, or errors in the original proceedings due to ineffective assistance of counsel. A motion to reconsider argues that the immigration officer or judge overlooked a key fact or made a significant error of law. A motion to reconsider may also argue a significant change in the law.
Should I hire a different lawyer for my appeal or motion to reopen or reconsider?
You should at least consult a different lawyer for your appeal, motion to reopen, or motion to reconsider. A new lawyer can provide a fresh, independent perspective on the merits of your case and the reasons for denial.
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