Appeals

Appeals

This link will discuss the various types of appeals that are part of US immigration law.  Keep in mind that the discussion below is intended to be a generalized overview of the appeals systems with immigration cases and that nothing below should be considered as legal advice.  If you or a loved one has an appeal that requires the assistance of someone who can help explain why the decision you received was incorrect, please follow the links on this site to schedule an appointment to discuss your cases with a licensed attorney.

Appeals to the Administrative Appeals Office (“AAO”)

These generally involve denied applications for immigrant petitions, nonimmigrant petitions (Form I-129) and various special provisions (e.g. Temporary Protected Status ; Form N-600) where an administrative appeal is specified by law.  The AAO does not handle any appeals relating to Forms I-130, Petitions for Alien Relative.  Although the AAO does not handle appeals of family based immigrant petitions, the AAO does handle appeals Forms I-360 (e.g. widow(er) petitions ; Violence Against Women Act (“VAWA”) ;  etc.).

Appeals to the AAO are filed on a Form I-290B and are sent to the USCIS office that issued the denial.  These appeals are generally due within 30 days of the issuance of the decision denying the petition or application and an additional three days to file the appeal is provided for mailing delays.  These appeals are NEVER filed directly with the AAO.

One of the exceptions to the 30 day filing deadline are cases that are appealed to the AAO as the result of a revocation.  A revocation occurs when USCIS issues a “notice of intent to revoke” an approved petition as a result of information that becomes known to the government after approval.  When the notice of intent to revoke is issued, the government will provide a period of time for the submission of a rebuttal to the notice of intent to revoke after which a decision will be issued.  If that decision is one to revoke the approved petition, the time period to file an appeal of the revocation is generally 15 days from the date of the decision to revoke plus an additional three days for mailing.  Again, these appeals are filed on Form I-290B and sent directly to the office that issued the revocation.

Upon receipt of the Form I-290B (and any appropriate filing fee), the USCIS office that receives the appeal should issue a receipt on Form I-797 and then create an administrative record to be sent by the USCIS office to the AAO.  When the appeal and the administrative record is sent to the AAO, a second Form I-797 should be sent to inform the filing party of action taken on the appeal.

The AAO maintains a processing report indicating the time periods necessary to process appeals depending on the type of application filed and the visa classification requested.  Keep n mind that some immigration forms cover filing for many different visa categories and that the time period for the AAO to decide an appeal can be different for the same form requesting different visa classifications.

The AAO will issue a decision in writing and send it to all concerned parties. From time to time, the AAO will review the case and may ask for additional information to be provided prior to a decision being issued on the appeal.  The AAO is located in Washington, DC and does not have a direct “customer service” line through which inquiries can be made regarding the status of an appeal.  The AAO has a fax back inquiry system that will generally provide a concerned party with the status of an appeal.

Appeals to the Board of Immigration Appeals

The Board of Immigration Appeals (“BIA”) handles appeals of denied or revoked Forms I-130 and all appeals of decisions of Immigration Judges (“IJ’s”).  Appeals of denied Forms I-130 are generally filed on a Form EOIR-29 and appeals of IJ decisions are filed on Form EOIR-26.  Most appeals must be filed within 30 days of the decision for which an appeal is filed.  The three day mailing period DOES NOT apply to these cases.

Appeals of denied Forms I-130 are filed directly with the USCIS office that issued the decision.  Upon receipt of a Form EOIR-29, the USCIS office that receives the appeal issues a filing receipt on a Form I-797 and forwards this to the filer.  As is the process with AAO appeals, the USCIS office that receives the appeal is responsible for creating an administrative record and then sending it to the BIA for its review and consideration.  When the BIA receives the appeal, it will often issue its own filing receipt as an indication that it has received the appeal from the USCIS office and is processing the same.  Once the BIA has made a decision, it will be issued in writing and forwarded to all concerned parties.

Appeals of most IJ decisions are filed directly with the BIA.  Once an appeal is filed, the BIA will issue a filing receipt and will then send the case for a transcript to be made of any hearings that occurred before the IJ.  Once completed, the transcript is forwarded to the parties with a scheduling order requiring the submission of legal briefs either in support of or against the decisions made by the IJ.  Either side to an IJ’s decision can file an appeal if the decision is not acceptable.

One of the common misconceptions in cases handled before the IJ is that the government cannot appeal a decision that is favorable to the foreign national.  This is absolutely not true.  If a foreign national is granted an immigration benefit and the government is of the opinion that the benefit should not have been granted or that the IJ made some type of error of fact or of law in favor of the foreign national, the government can file an appeal.  Just as with proceedings before the IJ, a foreign national has the right to have an attorney at no cost to the government.

The BIA is comprised of Judges called “members.”  Some BIA decisions are handled by a single member and some decisions are handled by three member panels.  The vast majority of cases are decided on the administrative record that was created before the IJ (including all evidence provided in the underlying proceedings).  The BIA will also consider the IJ’s decision and the legal briefs filed by the parties.  The BIA will issue its decision in writing and will send it both to the attorney representing the foreign national and the BIA will send a separate copy to the foreign national.

From time to time, the BIA will hold oral argument.  Oral argument is an opportunity for the attorneys representing each side to appear for questioning by the panel handling the case, and sometimes by every member of the BIA (this is called an en banc proceeding).  Unfortunately, the BIA does not hold oral argument very often.

While an application is pending before the BIA, the decision of the IJ is held in abeyance.  This means that if an IJ issues an order that someone be removed and deported or that someone depart the US voluntarily, this order will not be enforced while the case remains pending with the BIA.  This can be confusing to some when they have been provided the privilege of voluntarily departing from the US but maintain a right to appeal the IJ’s decision providing for voluntary departure.

As a general rule, if a foreign national was eligible to obtain and/or renew an employment authorization document (“EAD” or “work permit”) while the case was pending before the IJ, the individual will be eligible to renew an EAD while the case remains pending with the BIA.

Understanding one’s rights while a case is on appeal is as important as the basis of the appeal itself.  Far too often we see clients in the office who have hired an attorney to handle an appeal without a clear understanding of where their case stands while the case is pending review at the BIA.  If there are any doubts about what to expect while a case is pending on appeal, ask for clarification and make absolutely sure that everything is clearly understood before proceeding forward.

Appeals to the Circuit Court of Appeals

Once a decision has been issued by the BIA, it is generally considered to be an administratively final order.  With that said, there is an opportunity available for further limited review before a federal Circuit Court of Appeals.  There are 12 federal Circuit Courts of Appeal (including the Court of Appeals for the DC Circuit).  The other eleven Circuit Courts are comprised of member States.  The determination as to where an appeal of a decision of the BIA is filed depends on the location of the underlying proceedings before the IJ.  Jurisdiction is not always fixed by the physical location of the individual for whom the appeal is filed, but often by the location where the hearings before the IJ occurred.

These appeals must be filed within 30 days of the decision for which an appeal is sought.  There are no exceptions to this rule, miss the deadline and the opportunity to appeal to the Circuit Court is lost.   These appeals are often called “petitions for review” and once a petition is filed, the Circuit Court will issue a receipt with instructions on how the case will proceed.  Although these appeals are governed by the Federal Rules of Appellate Procedure, each Circuit Court has its own “local rules” and “internal operating procedures” that discuss at length the rules applicable to consideration of such cases.

Appeals to the Circuit Courts of Appeal were restricted as a result of the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).  Discretionary determinations made by IJ’s and other immigration officers CANNOT be appealed.  With that said, the Courts of Appeal do retain jurisdiction to consider arguments of law and Constitutional claims.  One of the topics of considerable discussion before the Circuit Courts of Appeal with immigration cases is whether the Court can make a decision on the questions posed in the appeal.

These appeals are very involved and take much longer to prepare, research and draft than do most appeals before the BIA.  While most immigration attorneys handle appeals to the BIA, only a handful of attorneys handle cases before the Circuit Courts of Appeal.  Our office regularly handles these matters and has appeared in dozens of cases filed before the Sixth, Ninth and Eleventh Circuit Courts of Appeal.

Decisions are issued in writing and are done through three judge panels.  From time to time, oral argument is scheduled in these cases and our office has argued before the Eleventh Circuit Court of Appeals in Atlanta, Georgia and in Miami, Florida as well as before the Sixth Circuit Court of Appeals in Cincinnati, Ohio.  Oral argument is generally scheduled when there is a unique or novel issue presented in the appeal or where the panel assigned to make a decision on the case believes that it can best comprehend the issues presented through hearing argument from both sides to the matter.

One of the confusing issues that always arises with cases which are pending on petitions for review is the question of whether a foreign national is subject to being arrested, detained and deported.  The answer is that unlike the protections that are afforded while the case is on appeal to the BIA, an appeal to the Circuit Court of Appeals does not protect the foreign national from being removed unless a separate “stay of removal” is requested with the Court of Appeals.  And even if a stay of removal is requested and is approved that does not restrict the foreign national from being detained subject to being detained.

Whenever we discuss a petition for review with a client it is exceedingly important that the client understand the potential for detention while the case remains pending review.  While we are always hopeful that agents and officers working for Immigration and Customs Enforcement (“ICE”) will not come knocking on a client’s door, the reality is that ICE is well within its legal right to do so when it has a final administrative order of removal in its hands.  An open and frank discussion about the possibilities that can occur during the pendency of any appeals process is an important part of our representation.

Appeals to the US Supreme Court

An appeal to the US Supreme Court can only be completed with the permission of the Court to grant a writ of certiori.  Appeals to the US Supreme Court are limited because the nine Justices that comprise the Court can only hear so many cases.  The process begins by explaining to the Supreme Court why it should consider the case.  A good basis for requesting the Supreme Court’s consideration of a case occurs where there is a split in the decisions between different Circuit Courts of Appeal and the Supreme Court sees an opportunity to resolve differences of opinion or where there is a question of great importance such that the Supreme Court decides that it should speak.  The reality is that most requests for the Supreme Court to hear a case are denied.

If a petition for writ of certiori is filed, it will eventually be considered at a conference of the Supreme Court Justices where the Justices vote to decide whether the Court should hear the case.  If that authority is exercised, the case will be scheduled for oral argument and additional legal briefs will be filed with the Court to adequately explain each side’s position.  Often times, the questions that come before the Supreme Court are so important that the Court receives Amicus Curie briefs.  These are legal argument filed by “Friends of the Court” to provide additional argument and guidance to the Court for its consideration.

All cases considered by the Court will result in a written opinion being issued and this opinion is the “law of the land,” meaning that the decision rendered in any Supreme Court case must be followed everywhere and anywhere throughout the entire United States.  The Supreme Court hears a few immigration cases every year and what the Court hears depends on the Justices and the arguments that are made by all the many different voices within the immigration law community.

What You Should Know

Appeals are a necessary part of the process of deciding immigration cases.  Truth is that without appeals, there would exist no challenges to the law and without those challenges the law remains static and unresponsive to the changing needs of those who are involved in the application and enforcement of the Immigration and Nationality Act.  Unfortunately, there are few attorneys who know how to use legal writing to make such challenges.  Do not let your appeal be lost by hiring an attorney who has no experience in how to present an appeal, in how to structure written legal argument and in how to convince a tribunal that the decision it is reviewing was made incorrectly.

Winning an appeal is more difficult the higher that one must go to appeal a decision.  Great deference is given by the reviewing tribunal to the decision made by the tribunal below.  When the right job is not done in preparing and drafting an appeal, the likelihood is that the appeal will have little success.  Statistics provide that most appeals are denied, but that does not mean that every appealis denied.

When you are looking for an attorney to handle an appeal, you should be provided with a clear explanation of the process that will be employed, the arguments that will be made and the likelihood of success.  While no one can ever accurately predict what will happen on an appeal, a knowledgeable attorney will have a good idea of whether the arguments that will be made can lead to success. Appeals used in the manner intended can right the wrongs that necessarily occur when different individuals attempt to interpret a large set of laws in a consistent manner.  The immigration laws of the US are complex and difficult and a good attorney will help you to explain the difficulties and complexities in a way that makes the most sense for your case.

If our office can be of any assistance with an appellate matter, it would be our pleasure to meet with you and listen to your case.