Immigration Court 101: Appealing a Denial
Immigration Judges have the authority to deny relief from deportation and order that individuals be deported from the U.S. Their decisions are considered final, however, in most scenarios, denials can be appealed. An appeal is an application to a higher court or administrative tribunal that states that an error or mistake was made and requests that the lower court’s decision to be reversed or altered. In most cases, the decision of an Immigration Judge can be appealed to the Board of Immigration Appeals, or the “BIA.” While the BIA is not an immigration court, it is technically part of the same agency as the immigration courts, the Executive Office of Immigration Review. The BIA is the highest administrative tribunal that decides immigration law cases.
A Notice of Appeal stating the reasons that the Immigration Judge made an error must be submitted to the BIA within 30 calendar days of the Immigration Judge’s decision. Once the BIA receives a Notice of Appeal, a receipt notice will be sent to you. It is important to note that the BIA, in deciding your appeal, cannot consider any new evidence, but will review the evidence and testimony that was submitted before the Immigration Court. Many people are surprised to find out, though, that an appeal to the BIA does not provide an opportunity to have another hearing. You do not have an automatic right to appear before a judge or board member, however, the BIA may grant permission for you (or your attorney) to make an oral argument before them, if you request it. Otherwise, all of your arguments must be made in writing. You (or your attorney) will later receive a notice setting a deadline by which a brief must be filed. An appeal, or “appellate,” brief is a legal document that explains the relevant law, legal precedent, facts, and arguments that support your claim that the Immigration Judge made an error or should have used their discretion differently. The government attorney will also be given a deadline to submit a brief stating their arguments as to why they believe that the Immigration Judge’s decision was correct. Assuming there is no oral argument, once the briefs are submitted, the BIA will issue a written decision that will be mailed to you. If your appeal is denied, it may be possible to appeal again to federal court, which is not a part of the same administrative agency as the Immigration Courts and the BIA.
One thing many people don’t realize is that, even if you win your case before the Immigration Judge, the government also has the right to appeal the judge’s decision. The best way to lower the risk of having to going through the appeals process is to have a lawyer prepare your case from the very beginning.
The attorneys at Tanner Law Offices can assist you or your loved ones in the process of defending against deportation. We are experienced in representing clients before the U.S. Immigration Courts. Please contact our office at (717) 731-8114 to schedule a consultation to discuss your case.