Immigration Court and the Board of Immigration Appeals
The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. Generally, the Board does not conduct courtroom proceedings – it decides appeals by conducting a “paper review” of cases.
The Board has been given nationwide jurisdiction to hear appeals from certain decisions rendered by Immigration Judges and by United States Citizenship and Immigration Services of the Department of Homeland Security (DHS) in a wide variety of proceedings in which the Government of the United States is one party and the other party is either an alien, a citizen, or a business firm. In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the Immigration Courts, and the Board.
Decisions of the Board are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal court. Most Board decisions are subject to judicial review in the Federal Appeals Courts. The majority of appeals reaching the Board involve orders of removal and applications for relief from removal. For example, appeal from immigration judge’s order of removal, file motion to reopen a case(pending or closed); appeal from the denial or revocation of family based immigrant visa petition(I-130). Other cases before the Board include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.
In general, notice of appeal must be filed(received) with the Board within 30 days after the decision is made. A motion to reopen and remand must be filed within 90 days of the Board’s decision. One alien may have only once chance to file motion to reopen(subject to certain exceptions).
We have been representing clients before the Board for more than 17 years. It is imperative that your attorney knows the practice procedures of the BIA, knows the substantive law of your case, knows what happened at trial and knows other areas of immigration law to make an effective strategy. Sometimes your appeals attorney will need to point out the ineffectiveness of your prior counsel at trial. If you are represented by the same counsel, you cannot claim ineffective assistance of counsel.
If your case has been denied by the immigration judge or by USCIS, please consult with us for your options.
Appeal from Immigration Court
If the immigration judge rules that the alien is removable, the alien can appeal the judge’s decision to the Board of Immigration Appeals (“BIA”). The alien has 30 days from the date of the judge’s decision to appeal to the BIA. If the government appeals judge’s decision, the alien should respond to the appeal otherwise the alien will lose the opportunity to rebutt. The BIA will review the immigration judge’s legal matters anew under the de novo standard. The BIA reviews the immigration judge’s factual matters with the highly deferential, clearly erroneous rule. If the BIA upholds the alien’s removal order, the alien can appeal to the United States Federal Court of Appeals. Finally, if the Appeals Court rules against the alien, the alien can appeal to the United States Supreme Court. This appeal process may take several years to complete. For information about petition for review at Court of Appeals, please see Federal Court Litigation section of our website.
Appeal from USCIS Denial
Family based immigrant visa denials may be appealed to BIA within 30 days of the denial. The appeal must be sent to the CIS office that denied the petition. Proper form, filing fee, legal brief and supporting documents must be attached to the appeal. CIS office will forward the appeal, with its brief response to the appeal, to BIA for consideration. It may take several months or a year to receive a decision from BIA. If BIA disagrees with CIS, it will likely remand the case back to CIS for further adjudication.
Employment based immigrant visa petition denials(including EB-5) and all employment based non-immigration visa denials are appealed to Administrative Appeals Office.