Immigration Appeals (BIA)
From Conditional Fight for Yours Right on the Board of Immigration Appeals (BIA)
Board of Immigration Appeals
If your immigration case is denied by the immigration judge and you are ordered to be deported, or if you are given voluntary departure, then you should know you have the right to appeal your case to the Board of Immigration Appeals (BIA). The BIA can review almost any final order by an immigration judge. An appeal is made by filing a Notice of Appeal within 30 days of the judge’s order. The filing fee for appeal is $110.
Once the Notice of Appeal is filed, the Immigration Court will transfer the full file to the BIA and the recording of all hearings from the case will be transcribed. Your attorney will receive the full transcript and a schedule for submitting a brief. A brief is a document laying out all of the facts of your case, the relevant legal authority, and all of the arguments as to why the judge’s decision was flawed. Your attorney will submit the brief to the BIA in support of your case. Legal counsel for the Department of Homeland Security (DHS) will also submit a brief to the BIA arguing in favor of the judge’s decision. Rarely are oral arguments made in BIA cases, so there will be no need for you or your attorney to travel to Virginia where the BIA court is located.
After the briefs are completed, the BIA typically takes several months to consider the appeal. The BIA will send a decision in the mail. If the Board dismisses the appeal, this means it is ruling in favor of the judge’s decision and upholding the deportation order. The BIA may also sustain your case, which means approve your appeal. In this case, their decision will either grant you the benefit of cancelling your deportation/removal order or issue a remand order. A remand order is issued if the BIA has found a defect in the way the judge’s decision was made. This means your case will be sent back to your case’s immigration judge with instructions to reconsider your case. It may say that the entire evidentiary hearing will need to be redone or that the judge should just consider different legal authority in re-deciding the case.
While a BIA appeal is pending, there is an automatic stay of deportation to allow you to remain in the United States until a final decision is made. This means that DHS cannot physically remove you from the United States during this time. In addition, if you were eligible for a work authorization document while your case was pending before the judge, you will continue to be eligible for work authorization throughout the appeal process. If your work authorization expires while the appeal is pending, you will be able to renew it by filing the appropriate application.
The attorneys at Weinstock Immigration Attorneys have filed more than 100 BIA appeals, many of which have led to the reversal of the deportation order. If you recently have been ordered deported, please call our office to speak to one of our immigration appeals experts to find out whether you have a good chance to win your appeal.
Federal Courts of Appeals and Petitions for Review
In limited circumstances, the federal appellate courts (also called the Circuit Courts) have jurisdiction to review the decisions of the BIA. In essence, this gives you a second chance to appeal. This type of appeal is called a “Petition for Review.” In most cases, there is a very narrow appeal standard, meaning that Petitions for Review are not granted very often. Federal Circuit Court litigation is highly specialized, and most immigration lawyers do not have the expertise to file these cases. However, the attorneys at Weinstock Immigration Lawyers have filed dozens of Petitions for Review, many of which have been successful in very difficult jurisdictions.
Petitions for Review require the attorney to prepare a very detailed brief and comply with rigid formatting and documentary requirements. In many cases, the attorney will be called to argue your case before a panel of judges of the Court of Appeals, which takes extensive preparation. If the Petition for Review is granted, your case will go back to the BIA and possibly the immigration judge for further processing. If the Court designates its decision for publication, the case will become a precedent, meaning that it could help other people who are similarly situated to you.
Not all decisions of the BIA can be reviewed by the Courts of Appeals. Whether the court has jurisdiction (or legal authority) to review a decision is often in itself a complex legal issue. It is a common misconception that a foreign national who has a Petition for Review pending cannot be physically deported. There is no automatic stay of deportation. You can request that the Court of Appeals order a stay of deportation, but these motions are not always granted and the likelihood of obtaining a stay varies among the different Circuit Courts because each of them applies a different standard to issue a stay. However, if you are physically deported, your case can continue, and if you win your case, the government will be required to allow you to return to complete your case.
To learn more about filing a Petition for Review in your case or how you can best appeal your deportation order, call our office to arrange a consultation with one of our experts.
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