Fisher Legal Group

Who May Appeal An Immigration Decision?

It depends what you mean by appeal, because some USCIS cases are not eligible for appeal but rather a form of appeal called Motion to Reopen and/or Reconsider. But in general, anyone who receives a denial may appeal an immigration decision in one form or another depending on how you call the appeal and where the appeal gets sent, whether that denial comes from the administrative immigration agency called USCIS, or from the immigration judge. If a USCIS case is denied and it is eligible for an appeal, then it can be appealed to a higher agency called Administrative Appeals Office. A denial from the immigration judge usually results in an order of deportation, but it can be appealed to a higher agency called the Board of Immigration Appeals.

Are There Any Special Requirements For Immigration Appeals?

Yes, there are special requirements for immigration appeals. For most cases, the timeframe for appeals is 30 days. The immigration agency normally gives 33 days to account for the time that it takes for the decision to be mailed (decisions are usually mailed). If the immigration court denies the case and issues a deportation order, then the individual has the right to appeal it within 30 days from the date of the denial.

There are certainly specific requirements and procedures that have to be followed, both with USCIS and the immigration court. Each case is different, but generally the appeal has to be filed on special forms to USCIS, or to the Board of Immigration Appeals (the last of which would be an appeal from a denial of the immigration judge’s decision). So, there are special forms and special timeframes involved.

What Is The Process To Appeal An Immigration Decision?

The process to appeal an immigration decision is different for each case. Let’s consider immigration court, and say that a person’s asylum case has been denied by an immigration judge, resulting in a deportation order. The individual believes it’s a wrong decision. From the date listed on that deportation order, the individual has 30 days to appeal that decision to a higher court. In this case, they will have to appeal it with the Board of Immigration Appeals, which is the higher agency that decides denials from all kinds of cases. In our case, it would be a denial from the immigration judge’s decision. That individual would have to fill out a form, and if the individual has an attorney, the attorney would fill out the form. The form itself requires a brief explanation as to why the immigration judge’s decision is wrong, in addition to specific documents that have to be attached.

Normally, an appeal should be accompanied by a brief, which is something many individuals don’t know. The Board of Immigration Appeals gives a deadline for filing the brief after the appeal form is filed and received by BIA. Those briefs have special formats, and they have to be filed with the Board of Immigration Appeals. When that application form for the appeal is sent out to the Board of Immigration Appeals, there must also be a check attached to pay for the filing fee. Eventually, word-for-word transcripts of everything that happened in immigration court- from day one to the last day of the hearing- are exchanged. There is a chance for the attorney to review all of the transcripts in order to gain a better understanding of what happened in immigration court and what mistakes (if any) the judge made.

If an appeal is filed from a denial of USCIS, i.e. the immigration agency, it is a little bit more complicated. This is because some specific USCIS denials can only be appealed to the Board of Immigration Appeals, some cases can only be appealed to the Administrative Appeals Office and some cases can only be filed with motions to reopen or reconsider with USCIS. So, if a case cannot be appealed to the Administrative Appeals Office, it can only be reviewed again by the USCIS. If your case is not eligible to be filed for an appeal to the Administrative Appeals Office, then you can ask the same agency (USCIS) to review, reconsider and/or reopen your case. You would have to give at least a brief explanation as to why their decision was wrong and why they should overturn their denial. But normally, a brief should be attached. There are fees that have to be paid and special forms that have to be filed for each appeal.

For more information on Appealing An immigration Decision, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (646) 453-4170 today.

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