Appeals of Immigration Decisions Through the Legal Process
If you receive a negative decision from a United States government official or office on an immigration matter, you may be able to appeal. If your case is denied by an immigration judge in a court proceeding, you can appeal. If your case was denied by an immigration office, you can appeal that decision as well. There are several appellate levels in the immigration system:
When, Where, and How
A denial or revocation notice should specify when and where to file an appeal. Most appeals use Form I-290B or Form EOIR-29, but the denial or revocation notice should also indicate the correct form to use for the specific appeal.
Board of Immigration Appeals
The Board of Immigration Appeals (BIA) is a body of the Department of Justice and is the highest administrative body for interpreting and applying U.S. immigration laws. The body is made up of 15 board members. BIA reviews decisions of immigration courts and also some decisions of the U.S Citizenship and Immigration Services (USCIS). The BIA has the authority to affirm, reverse, or remand a judge’s decision.
In most instances, the BIA reviews an applicant’s paperwork in its totality, including the original application, petition, briefs, motions, and the decision, to make its own determination. The setting is not like a courtroom. Instead, the BIA independently parses through the documents and history of the case and typically notifies the individual via mail.
BIA rulings are the final administrative action in a removal proceeding. The BIA’s jurisdiction, however, reaches beyond removal proceedings, and individuals can appeal to the BIA if the USCIS denies a particular petition. If the BIA affirms the denial, the individual then can appeal to the Federal District Court.
Federal Circuit Court of Appeals
Matters before the Federal Circuit Courts of Appeal are typically appealed from decisions of the BIA. An appeal to a U.S. Court of Appeal must follow strict deadlines and procedures. Currently, there are 13 U.S. Courts of Appeal across the country. Section 242 of the Immigration & Nationality Act (INA) governs judicial review of exclusion, deportation, and removal proceedings. According to this statute, a petition for review is to be filed within 30 days of the date of the final order.
The federal court cannot just take on any case. Instead, it can only review constitutional claims and questions of law. In addition to challenging BIA decisions, federal courts can be used to challenge the following matters:
Unreasonable delays by the USCIS in adjudicating an application or petition;
Denial of an application for naturalization by the USCIS;
Unlawful confinement of someone in immigration custody; or
A removal order denied on legal or constitutional grounds.
Administrative Appeals Office
The Administrative Appeals Office (AAO) handles appeals that stem from negative decisions of the USCIS. In fact, the most unfavorable decisions by the USCIS may be appealed to the AAO. For example, an individual can appeal to the AAO if the USCIS denies or revokes a non-immigrant visa petition or employment-based visa. The AAO also has a branch that deals with the detection and deterrence of immigration fraud. There are strict deadlines for filing such an appeal.
The purpose of the AAO includes ensuring consistency and accuracy in the interpretation of immigration laws and regulations, staying up to date when it comes to changes in immigration laws, regulations, or policies, aiming for efficiency and timeliness in handling each appeal, and recommending the publication of precedent decisions to help clarify immigration matters. Other USCIS decisions are not bound by non-precedent decisions.
Motions to Reopen or Reconsider
Separate from an appeal, a motion to reopen or reconsider may be another available option. Motion to reopen = a motion to review a decision in light of new relevant facts and evidence Motion to reconsider = a motion to review a decision that was made based on an incorrect application of law or policy