If your case is denied by the Immigration Court or the United States Citizenship & Immigration Services (“USCIS”), you have the right to appeal the decision to a higher-level office or court within 30 days from the date of the decision. The appeals office or court has the power to review the original decision in your case and can ultimately reverse the decision or return your case to the lower agency or court for a new adjudication if the original decision contained factual or legal errors.
- Appealing the Decision of an Immigration Judge
If a judge in the Immigration Court denied your application(s) for relief, you may appeal the decision to the highest administrative authority for immigration cases within the U.S. Department of Justice, known as the Board of Immigration Appeals (“Board” or “BIA”). This appeal will not contain any new evidence to support your case. Rather, the appeal will consist of a legal brief prepared by your attorney, which contains a detailed argument as to why the Immigration Judge erred in the denial decision.
- Motions to Reopen Before the Immigration Judge or the Board of Immigration Appeals
If new important evidence is discovered after an Immigration Judge denied your case or after the Board of Immigration Appeals dismissed your appeal, you may request a re-opening of your case in order for the judge or the Board to consider your case again with the new evidence. The new evidence has to be material and could not have been discovered or presented at the original hearing. The standard filing deadline for a motion to re-open is 90 days from the date of the final decision by the judge or Board unless the motion is based on the following circumstances (in which the filing deadline does not apply or can be tolled):
- A motion to apply for asylum, withholding of removal, or protection under the Convention Against Torture, and is based on changed country conditions in the country to which removal has been ordered;
- The alien did not recieve notice of the hearing in accordance with the applicable procedures;
- The alien demonstrates that the failure to appear was due to extraordinary circumstances beyond the alien´s control;
- The motion is agreed upon by all parties, i.e. the alien and the government, and is jointly filed.
- Appealing the Decision Made by a USCIS Officer
If a USCIS officer makes an adverse decision on an application or petition, the applicant or petitioner may file an appeal of the decision or a motion to reopen the decision within 30 days. Some appeals are reviewed by the Board of Immigration Appeals (if appealing a family-based petition, for example), while other appeals are reviewed by the Admistrative Appeals Office (AAO), which is the appellate agency of USCIS.
- Filing a Petition for Review with a U.S. Court of Appeals
If the Board of Immigration Appeals dismisses your appeal or denies your motion to reopen in error, you can request the review of the Board’s decision to a federal circuit court that has jurisdiction over your case. For individuals whose case was originally adjudicated in the San Francisco Immigration Court, the case will be reviewed by the U.S. Court of Appeals for the Ninth Circuit. The petitioner has 30 days from the date of the Board’s decision to file the petition for review with the federal court. No new evidence is submitted with this petition, and an attorney must submit a detailed legal argument to the court discussing the factual and legal errors made by the Board.
If you received a negative decision in your case by USCIS, the Immigration Court, or the Board of Immigration Appeals, you need an attorney who is highly skilled in formulating and drafting legal arguments for appellate cases. Our attorneys have successfully won appeals and reopened numerous cases before the Immigration Court and the Board of Immigration Appeals. We have also been granted petitions for review in federal court.