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|Appealing Denied Removal Case Decisions|
The Board of Immigration Appeals
As will sometimes occur in removal or deportation proceedings, an applicant’s case may be denied by the adjudicator or immigration judge. If this happens, the applicant or his/her representative should “reserve appeal” upon issuance of a negative decision or order. What this means is that the applicant or his/her representative must inform the adjudicator or judge that he/she does not wish the negative decision to be final. Appealing a decision is not mandatory, but as a matter of course a person issued an unfavorable decision or order from an immigration judge or adjudicator should “reserve appeal”. This merely means that you do not wish the decision to be final, but rather would like the option to decide whether or not to appeal this decision. After issuing an unfavorable decision, an immigration judge will typically ask the person in removal proceedings or his/her representative if he/she wishes to reserve appeal. It is worth noting that even if an immigration judge grants an applicant relief, the attorney for the Department of Homeland Security (DHS) can also reserve appeal. This means that the DHS can appeal a grant of relief or a judge’s decision, just as an applicant can appeal a denial of such relief. The decision of an immigration judge or adjudicator is only final if both sides have “waived appeal” and agreed that the decision is final.
The BIA can accept appeals and review decisions made by an immigration court, including most final decisions of immigration judges (IJs) where an applicant is in exclusion, removal, or deportation proceedings.
After reserving appeal, an applicant who decides to appeal must next file a Notice of Appeal with the BIA, and this Notice of Appeal must be accompanied by the appropriate government filing fee. For applicants who were in removal proceedings, the appeal must be filed on Form EOIR-26 within 30 days of service of the IJ’s decision. This means that a Notice of Appeal is properly filed with the BIA only if it is accompanied by all required documents, and necessary fees or fee waiver request, within this 30 day window. The 30-day filing period begins to run from either the date of the IJ’s oral decision, or the date the IJ mailed out a written decision. It is very important that the BIA receive this appeal within 30 days of service of an IJ’s decision, and this is adhered to very strictly. For example, if a Notice of Appeal is mailed on day 29 after service of an IJ’s decision, and it is not received by the BIA until day 31 (one day late), the appeal will be dismissed for untimely filing. The BIA adheres to this rule very firmly. The Notice of Appeal should also be mailed with specific details explaining the factual and legal grounds for appeal, a certificate of service stating that the Notice of Appeal was also served on the DHS Office of the Chief Counsel, and the lawyer or representative’s EOIR-27 notice of appearance if applicable.
An automatic stay of removal is issued upon proper and timely filing of a Notice of Appeal to the BIA. This is meant to prevent the applicant from being removed to his/her country of origin while the appeal is pending.
BIA appeals are almost exclusively in the form of a written paper briefs. An applicant may request oral arguments before the BIA by indicating this request in the Notice of Appeal. However, it is up to the BIA’s discretion whether or not to permit oral arguments, and in practice the BIA hardly ever grants this request.
Several months after the filing of the Notice of Appeal, the attorney of record will receive a briefing schedule and a transcript of the prior hearings. The “respondent” (the name for the applicant when appealing a decision while in removal proceedings) will receive the transcript and briefing schedule if he/she is unrepresented. In nondetained cases, the brief for the person appealing is due within 21 days of the BIA’s issuance of the transcript or briefing schedule. Generally, a person may ask the BIA for one extension of the 21-day filing deadline by filing a motion prior to the due date. In cases where the respondent is not detained, and the motion requesting a briefing extension is granted, the opening brief is due 21 days from the date the brief was originally due. Reply briefs are then due within 21 days of the deadline for the appellant’s brief. There are specific requirements for the form, binding, and parts of a brief, and the BIA Practice Manual describes all these requirements in detail.
In all cases filed on or after September 25, 2002, the BIA is no longer permitted to engage in de novo review of findings of fact. The fact that an appellate court such as the BIA can no longer decide a case de novo means that the BIA can refer to the record of the prior hearings to determine the facts, but will but rule only on the evidence and matters of law without giving deference to that court’s findings. If further fact-finding is needed, the BIA will instead remand the case back to the immigration judge for this purpose. While the BIA cannot engage in de novo review regarding findings of fact, the BIA can engage in de novo review of any questions of law, discretion, and all other issues in appeals from decisions. The BIA will review the immigration judge’s findings of fact under the “clearly erroneous” standard, which means that the BIA will defer to the findings of fact of an immigration judge unless the reviewing BIA member is left with the definite conviction that the immigration judge made a mistake. This emphasizes that fact that the BIA will defer to the judge on questions of fact, demeanor, and credibility unless the appellate record simply cannot support the judge’s findings. It is important to make sure that all arguments that can be made have been raised in a brief, otherwise the BIA may consider these arguments waived ineligible to be argued in further appeals.
After all parties have submitted their briefs, the BIA will make a decision. This decision may be to affirm the immigration judge’s findings, reverse the immigration judge’s findings, vacate or reverse a portion of the immigration judge’s findings, and/or to remand (send) the case back to the immigration court with instructions or for further fact-finding.
Gavlin & Associates has extensive experience getting positive results on appeals to the BIA, and we would be pleased to guide you through the appeals process.
Review by a Federal Circuit Court
If the BIA still denies a party relief, this may not be the end of the road. A respondent can appeal an unfavorable BIA decision to the Federal Circuit Court that has jurisdiction over that particular case. If the person seeking relief had an immigration court hearing, the proper circuit court with which to file would be the Federal Circuit where the immigration hearing was originally held. For example, if an immigration hearing was held in immigration court in New York, NY, the appeal would properly be filed with the United States Court of Appeals for the Second Circuit. This is because United States courts of appeals (circuit courts) are defined by geography, deciding cases and appeals within their designated geographical judicial area. While the BIA handles only appeals regarding immigration decisions, circuit courts hear cases and appeals covering a wide variety of federal law issues. Sometimes a person who has applied for immigration benefits, or who is in removal proceedings, does not receive the immigration relief sought due to an incorrect decision by the immigration judge and/or BIA. Whether this incorrect decision was based on erroneous interpretation of the law or an improper application of the law to the facts of the case, when there is a final administrative order of removal issued, this person generally has the right to appeal the decision to the federal circuit court.
Unlike situations in which an appeal is pending with the BIA, there is no automatic stay of removal when filing a Notice of Appeal with a circuit court. An attorney can help you put together a motion asking the circuit court to “stay removal,” meaning that the respondent will ask the circuit court not to be deported back to his/her country of origin while the appeal is being considered.
Filing a motion to stay removal can be very complicated, and will be granted based upon 4 criteria:
1) likelihood of success on the merits of the claim/relief;
2) that irreparable harm would occur if a stay is not granted;
3) that the potential harm to the person making the motion outweighs the harm to the opposing party if the stay is not granted;
4) that granting the stay would serve the public interest.
The first two criteria are the usually considered to be the most critical and given the most weight. When a circuit court is considering a motion to stay removal, the possibility of being deported does not necessarily constitute “irreparable harm” without more. It is much less likely for a motion to stay removal to be granted where the person filing the motion is considered to be particularly dangerous, has a criminal history, or has substantially prolonged his/her stay in the U.S. by abusing the immigration or judicial process. Because this is such an important step in the federal appeals process, it is recommended that you consult with an attorney about filing this motion along with your appeal. If the motion to stay is denied, and the person is deported back to his/her country of origin, that person will have to wait outside of the U.S. while the petition is being considered. Because federal appeals can be pending for a lengthy period of time, it is important that this stay of removal is granted to allow the person to continually remain in the U.S.
A petition for review must be filed with the appropriate circuit court within 30 days of a final order of removal. If there was a previous appeal to the BIA, this means that the petition for review must be filed with the federal circuit court within 30 days of when the BIA issued a decision that made the order of removal “final” as far as the administrative court is concerned. When calculating the 30-day time limit for filing the petition for review, exclude the day of the event that triggers the 30-day period. However, in calculating the 30-day filing deadline, one should include the last day of the period as the thirtieth day; unless the last day is a Saturday, Sunday, or legal holiday, then last day for filing would be the next day that is not a Saturday, Sunday, or legal holiday. The petition for review must be received by the clerk’s office on or before the thirtieth day, and not merely mailed by that date. If there is an earlier deadline that may affect a person’s deportability, such as a an earlier deadline for voluntary departure, the earlier deadline is still in effect and is controlling; thus, the notice of petition should be filed prior to that earlier deadline. Complicated and detailed rules govern the time, place, and manner of the federal appeal. It is very important to file the appeal timely and in the proper manner, to prevent the appeal being denied on procedural grounds.
The person appealing will then be sent a copy of the appellate record, to be used as a reference for constructing a written brief. The person appealing a denial of relief (referred to at this stage as the “petitioner”) must file his/her brief within 40 days of the date from which the administrative record is available. After this brief is filed, the opposing party (most often a representative of the U.S. Attorney General, in immigration cases) typically has 30 days to file a reply brief, although filing extensions may be requested and granted. The petitioner then has the opportunity to file a reply brief within 14 days of service of the U.S. government’s brief. The circuit court may set its own briefing schedule which may provide a later deadline for filing. The circuit court will consider the briefs submitted; a process which can take several months or over a year. Failure to file a brief within the proper time period will ordinarily result in a dismissal and denial of relief. There are very specific guidelines as to the form and filing rules for briefs. Each circuit court has its own local rules and guidelines for submissions, and an experienced attorney can ensure that these requirements are met.
When considering appeals, federal circuit courts will review all questions of law de novo. However, when reviewing findings of fact, circuit courts are generally limited to a review of the appellate record and may not decide factual questions de novo.
Either party may submit motions to the circuit court, asking for specific certain issues to be decided or seeking certain outcomes. It is very important to respond to such motions, or the motion will likely be deemed “unopposed” and thus granted. For example, the representative for the U.S. Attorney General may make a motion for summary dismissal during the briefing process, making an argument that there is no matter of law at issue (that is, that based on the facts of the case, there is no ambiguity as to what the outcome of the appeal should be). If a timely and prompt reply to that motion is not filed, the motion may be granted as unopposed, and the petitioner may not have an opportunity to submit an appellate brief.
A person seeking to appeal should consult an immigration attorney before taking any further action because the process of appealing can be difficult and complex, and may result in the applicant’s removal from the United States.
Gavlin & Associates has years of experience navigating these legal appellate issues, and we can help guide you in your journey through the federal appellate process.