Appealing to the Board of Immigration Appeals

Going to court over an immigration matter is incredibly stressful, and receiving an unfavorable decision can be devastating. Losing your immigration case can threaten not only your own livelihood and security but that of your family as well. If this has happened to you or a loved one, you may be feeling overwhelmed and at a loss of what to do. However, you may have options and should speak with one of our experienced immigration attorneys as soon as possible.

Below we review the process for appealing to the Board of Immigration Appeals and more information on what you can do if you’ve lost your immigration court case. Keep reading.

What Is the Board of Immigration Appeals?

The Board of Immigration Appeals (BIA) is a division of the U.S. Department of Justice and “is the highest administrative body for interpreting and applying immigration laws.” The BIA hears appeals for certain decisions made by immigration judges and district directors of the Department of Homeland Security (DHS). Within the Board are 23 Appellate Immigration Judges, including the Chief Appellate Immigration Judge and typically one or two Deputy Chief Appellate Immigration Judges.

The BIA hears several types of cases, including those involving:

• Orders of removal
• Applications for relief from removal
• Exclusion of aliens applying for admission to the U.S.
• Family sponsorship petitions
• Fines associated with the violation of immigration laws
• Motions for reopening and reconsidering previous decisions

Appeals cases brought before the BIA are not heard in a courtroom but are decided in a “paper review” of the original case. However, there are some circumstances in which the BIA will hear oral arguments, but this is rare. Generally speaking, BIA decisions are precidential and binding; they can only be overruled by the Attorney General or a federal court.

How to File an Appeal with the BIA

If you received an unfavorable decision from an immigration court and want to file an appeal, your first step should be to seek legal counsel from an experienced immigration attorney, like ours at Lively Law Firm. This should be done quickly as there is a time limit for when you can bring an appeal before the BIA after the initial decision has been rendered. 

An appeal must be filed with the BIA within 30 days of the original decision.

To file an appeal with the BIA, you must submit a Notice of Appeal within the aforementioned 30-day time limit. 

When filing your Notice, you must ensure that you adhere to the correct procedures and provide all the proper forms and information. It is generally recommended that you work with an attorney during this process.

What Should I Do If the BIA Denies My Appeal?

Though BIA decisions are binding, they are not infallible. In fact, if the BIA has wrongfully denied your appeal, you may still have legal options. As previously mentioned, in some cases, a BIA decision can be overruled by the U.S. Attorney General or a federal court. Consequently, if the BIA denies your appeal, affirming an unfavorable decision, you may be able to take your case before the U.S. Circuit Court of Appeals.

That being said, you should seek experienced legal counsel before appealing a BIA decision, as it may not be the best option for your situation. Instead, it may be more beneficial to you to ask the BIA to reconsider their decision or to reopen your case.

What About the AAO?

The AAO (Administrative Appeals Office), part of U.S. Citizenship and Immigration Services, is where you can appeal certain decisions regarding immigration benefits. Like the BIA, the AAO performs an administrative review of the case before making its decision. During this review, they examine whether the original decision is consistent and accurate in interpreting immigration law.

Unlike the BIA, most of the AAO’s decisions are non-precedent decisions. This means that they apply existing immigration laws and policies to the case at hand, and their decisions do not serve to establish guidelines for future, similar cases. However, there are some situations in which, after review by the Attorney General, an AAO decision can become precedent.

The AAO has jurisdiction over the following types of cases:

• Most employment-based visa petitions
• Immigrant petitions by alien entrepreneurs
• Temporary Protected Status applications
• Fiancé(e) petitions
• Waiver of ground of inadmissibility applications
• Permission to reapply for admission after deportation applications
• Some special immigrant visa petitions
• Orphan petitions
• T and U visa applications
• Preserve residence for naturalization applications

The AAO has jurisdiction over approximately 50 different types of immigration cases, including some ICE cases. This list is just an example of some of the most common types of cases they hear.

Do I File My Appeal with the BIA or the AAO?

Which office you file your appeal with will be determined by the circumstances of your case. Before you file a Notice of Appeal or Motion with either office, you should speak with one of our immigration appeals attorneys. In some cases, filing an appeal with one office can limit your future options should they affirm your original, unfavorable decision. Additionally, filing your appeal with the incorrect office can slow your case down and potentially cause you to miss your filing window with the correct office.

What Happens If I Miss My Window to Appeal?

In cases where more than 30 days have passed since you received the immigration court decision you wish to appeal, you are unlikely to be able to file an appeal with either the BIA or the AAO. However, you may have the option to file a Motion to Reopen with the original judge who issued the unfavorable decision. 

A Motion to Reopen your case can be useful in situations where new material evidence has emerged that impacts your case. 

If the motion is granted, the immigration judge will review your case in light of the new evidence. However, remember that you typically only have 90 days to file a Motion to Reopen. And, as with filing an appeal with the BIA or the AAO, you should always consult with an experienced lawyer before filing a Motion to Reopen.

Call Lively Law Firm" for Help Today

If you have lost your immigration court case, you must act fast. We understand that this process is scary and stressful. With so much at stake, you do not want to risk any delays. Call our law firm for guidance today. We are here to provide our clients with strong legal representation and compassionate advocacy.