Part one discussed the basics of Motions to Reopen. Part two discussed the fundamentals of Motions to Reconsider. Now, in this third and final part, we conclude this series discussing the essentials of immigration appeals.
What is an immigration appeal?
Generally speaking, an appeal is a request to an overseeing authority to review an unfavorable or adverse decision. Most adverse decisions from USCIS and the Immigration Court can be appealed to their respective overseeing authority, and some denials can be appealed even higher. An experienced immigration attorney like those at The Law Office of George K. Gomez, P.A., can help you determine what matters can be appealed as well as where they should be appealed.
Appeals of Decisions Rendered by USCIS
Depending on the type of case and the denial being appealed, adverse decisions rendered by USCIS can be appealed to the USCIS Administrative Appeals Office (AAO) or to the Board of Immigration Appeals (BIA).
The Administrative Appeals Office (AAO) is generally the first place an adverse USCIS decision will be appealed to. The AAO has appellate jurisdiction over approximately 50 different immigration case types filed with U.S. Citizenship and Immigration Services (USCIS) field offices, as well as certain Immigration and Customs Enforcement (ICE) determinations.
Matters heard by the AAO include:
Most employment-based immigrant and nonimmigrant visa petitions (Forms I-129 and I-140);
Immigrant petitions by alien entrepreneurs (Form I-526);
Applications for Temporary Protected Status (TPS) (Form I-821);
Fiancé(e) petitions (Form I-129F);
Applications for waiver of ground of inadmissibility (Form I-601);
Applications for permission to reapply for admission after deportation (Form I-212);
Certain special immigrant visa petitions (Form I-360, except for Form I-360 widower appeals, which are appealable to the BIA);
Orphan petitions and applications (Forms I-600 and I-600A);
T and U visa applications and petitions (Forms I-914 and I-918) and the related adjustment of status applications;
Applications to preserve residence for naturalization purposes (Form N-470); and
ICE determinations that a surety bond has been breached.
Appealing an adverse USCIS decision to the AAO requires the filing of Form I-290B, Notice of Appeal or Motion, within 30 days of the date that the adverse decision was rendered.
There are, however, certain USCIS determinations that cannot be appealed to the AAO. Instead, these matters are directly appealed to the Board of Immigration Appeals (BIA). These include:
Denials of a Petition for Alien Relative (Form I-130)
Denials of a Petition for Amerasian, Widow(er) or Special Immigrant (Form I-360)
Appealing an adverse USCIS decision to the BIA requires the filing of Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer within 30 days of the date that the adverse decision was rendered.
Appeals of Decisions Rendered by an Immigration Judge
With the exception of Motions to Reopen and Motions to Reconsider filed directly with an Immigration Judge, adverse decisions rendered by an Immigration Judge can be appealed to the Board of Immigration Appeals (BIA).
The Board of Immigration Appeals (BIA) is the highest administrative body responsible for interpreting and applying immigration laws. The BIA has nationwide jurisdiction and all BIA decisions are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a Federal Court.
Matters heard by the BIA include:
Decisions of Immigration Judges in removal, deportation, and exclusion proceedings (with some limitations on decisions involving voluntary departure);
Decisions of Immigration Judges pertaining to asylum, withholding of deportation, withholding of removal, Temporary Protected Status, the Convention Against Torture, and other forms of relief;
Decisions of Immigration Judges on motions to reopen where the proceedings were conducted in absentia;
Decisions of Immigration Judges in rescission of adjustment of status cases;
Some decisions pertaining to bond, parole, or detention;
Decisions of DHS on family-based immigrant petitions, the revocation of family-based immigrant petitions, and the revalidation of family-based immigrant petitions (except orphan petitions);
Decisions of DHS regarding waivers of inadmissibility for nonimmigrants under INA § 212(d)(3)(A)(ii);
Some decisions of DHS involving administrative fines and penalties; and
Discipline imposed on attorneys, recognized organizations, and accredited representatives for professional misconduct, as discussed in Part 1, Chapter 6 (Attorney Discipline); See, e.g., 8 C.F.R. § 1003.1(b).
Matters the BIA does not have the authority to review include:
The length of a grant of voluntary departure granted by an Immigration Judge under former § 244(e) of the Immigration and Nationality Act and current INA § 240B;
Direct appeals from persons removed or deported in absentia pursuant to former § 242B of the Immigration and Nationality Act and current INA § 240(b)
Credible fear determinations, whether made by an Asylum Officer or an Immigration Judge;
Reasonable fear determinations made by an Immigration Judge;
Applications for advance parole;
Applications for adjustment of status denied by DHS;
Employment-based immigrant visa petitions;
Waivers of the two-year foreign residence requirement for J-1 exchange visitors;
H and L nonimmigrant visa petitions;
K-1 fiancé(e) petitions;
Employer sanctions; or
Immigration-related employment discrimination and related document fraud.
Appealing an adverse decision by an Immigration Judge to the BIA requires the filing of Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge, within 30 days of the date that the adverse decision was rendered.
Should the BIA deny a foreign national’s appeal, there still may be relief in the form of a Petition for Review before the U.S. Court of Appeals. This form of federal review bypasses the federal district courts and is, absent extraordinary cases appealed to the U.S. Supreme Court, is typically the final level of appellate process for most immigration denials. A Petition for Review can only be filed within thirty (30) days of the BIA’s denial and must be filed the U.S. Court of Appeals which has jurisdiction over the matter. There are generally no exceptions to this filing deadline, so it is critical that a Petition for Review is timely filed.
We Handle Complex Immigration Situations.
Serving Miami-Dade, Broward, Monroe, and Palm Beach Counties as well as providing nationwide representation, The Law Offices of George K. Gomez, P.A. is solely focused on immigration law. We have comprehensive knowledge of state and federal laws involving these matters and our skilled immigration lawyers can evaluate your case and determine whether you have the basis for an appeal.
If you need an immigration lawyer or just need more information on the immigration-related legal services we can offer, our service areas, or wish to learn more about our managing attorney, contact us at (305) 539-0991, or use our online contact form.