Appellate practice dedicated exclusively to filing deportation appeals, motions to reopen, reconsider, remand and/or reissue before Immigration Judges or the Board of Immigration Appeals, and filing petitions for judicial review of deportation orders in all of the Federal Circuits of the United States. Although this website is designed mainly to assist immigration attorneys in their deportation defense practice, this website is also useful for noncitizens in deportation proceedings that are acting without attorneys as a source of valid information.
Warning: Do not try to represent yourself in removal or deportation proceedings if you are a noncitizen without attorney. According to the Transactional Records Access Clearinghouse ("TRAC") (a data gathering, data research and data distribution organization at the Syracuse University in New York) examining immigration courts data at the end of September 2016, it found that 70% of adults with children that were ordered deported by immigration judges throughout the United States did not have legal representation. In other words, they appeared in court without lawyers. TRAC reported that having professional legal representation in removal proceedings makes "Fourteen-Fold Difference in the Outcome" of those cases. See, http://trac.syr.edu/immigration/reports/396/; see also, the Cardozo Law Review study from the New York Immigration Courts, Figure 7, page 384, showing an abysmal 3% of success for noncitizens appearing without a lawyer in deportation proceedings. Meaning that 97% of them lost their cases and were ordered deported.
OUR COMMITMENT TO YOU, THE READER
Whether you are a noncitizen without attorney or an attorney without sufficient appellate practice experience, you are now entering the only website in the world-wide-web exclusively dedicated to explaining the appellate review processes involving appeals from deportation or removal orders, motions to reopen, reconsider or remand, and petitions for review. This webstie is written in common language to avoid confusing legal terms. If you are a noncitizen without attorney, this website informs you of the most important questions you should ask an immigration lawyer when looking to hire one to represent you in any deportation appeal process, including a petition for review before the United States Court of Appeals.
This website explains to you the "what", "when", "where", "how" and the "why" reasons it is always in your best interest to file an appeal from an order of deportation entered by an immigration judge or the Board of Immigration Appeals (the "BIA").
This website also explains the same "what", "when", "where", "how" and the "why" requirements for filing a "motion to reopen" a deportation order, a "motion to remand" or a "motion to reconsider" any such deportation order without regard as to what city and state of the United States you live in now, or in what city and state the deportation order was originally issued. You will also learn here everything you need to know about obtaining a stay of deportation and how to defend from orders of reinstatement.
Searching the internet looking for an immigration lawyer to file a deportation appeal (or a motion to reopen, or to remand, or to reconsider, before the BIA or the immigration judge) can be a very difficult thing to do if you do not know what questions to ask and why. For your own protection, make sure that the answers you might get from a lawyer you are contemplating to hire are in writing to ensure that they are as accurate as they can be. This is why you should only ask your important questions from an interviewing attorney in writing, such as through email exchanges.
Reading the contents in this website will give you invaluable information to choose the right lawyer for your deportation appeal case. IMPORTANT: You are well-advised to read the "9 reasons to hire a deportation appellate lawyer" contained below in this page before hiring that lawyer.
- Note that the words deportation and removal are synonymous terms in immigration parlance (see glossary below towards the end of the page for more details).
Were you ordered deported recently and have questions about the appeal process?
Answer the following questions and then click the "send" button.
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This Home Page covers only the subject of "Appeals of removal or deportation orders."
But first things first—what is an appeal?
Consider the following facts to assist us in answering that question:
1. Absent a few exceptions (i.e., persons previously deported from the US; persons attempting to enter the US at the border or that have only recently arrived to the US; or persons being removed from the US under an "expedited" process), agents from the Immigration and Customs Enforcement (“ICE”) or the Border Patrol ("BP") are not legally authorized to physically remove a person from the US unless the ICE or BP agents first obtain an order from an immigration judge allowing the ICE or BP agents to deport that person.
2. Once the immigration judge issues an order authorizing the ICE or BP agents to deport that person, the ICE or BP agents are still not legally authorized to physically deport that person, if that person after being ordered deported by the judge at the end of the proceedings "reserves" his or her right to appeal the judge's decision to a higher authority and files the appeal in a timely manner. (If the person in that situation does not reserve his or her right to appeal the judge's decision, and the person is in the custody of ICE or BP, the agents can physically remove that person from the US immediately or as soon as possible) In essence, the person that reserves his or her right to appeal the order of the judge is requesting that a higher authority named the Board of Immigration Appeals “review” that order of the immigration judge for errors. The taking of an appeal is accomplished by filing a Notice of Appeal [EOIR-26] of the order of the immigration judge with the Board of Immigration Appeals, as long as the Notice of Appeal is received with the Board within the first 30 days after the immigration judge issued the order of deportation.
- Can you imagine how unfair it would be if the order of an immigration judge could not be "appealed" (meaning checked for correctness through an appeal process)? Judges would be kings and their orders would be unchangeable!
3. Assuming that a person files a Notice of Appeal with the Board of Immigration Appeals within the first 30 days of the order of the immigration judge, and assuming further that the Board thereafter—within 1, 2 or 3 years later, more or less, denies the appeal, the ICE agents only then can begin the process to physically remove that person from the United States, but not before. This appeal level is referred to as an "administrative" appeal.
4. Except however that if the same person decides to also file an appeal (within the first 30 days) of the order of the Board of Immigration Appeals denying the appeal from the order of the immigration judge, to an even higher court (a Federal Circuit Court of Appeals of the United States) and assuming further that court also orders a "stay" of the final order of deportation of the Board, then, ICE agents are still not authorized to physically remove the person from the US until such Federal Circuit Court of Appeals, either 1, 2 or 3 years later, more or less, decides the deportation case against that person. This appeal level is referred to as a "judicial" appeal.
Therefore, an “appeal” (in the context of an order of deportation) is a formal request made by the noncitizen that has been ordered deported by an immigration judge, filed in a timely manner (within 30 days), which commences a new review adjudication process wherein that order of deportation will be reviewed by a higher level judge, or panel of judges, for the purpose of determining if that order of deportation is correct, and thereon will be affirmed, or is incorrect and thereon will be overruled, or vacated, or remanded.
Said differently, when appealing your deportation order, keep in mind that all similarly situated noncitizens have the legal right to have three (3) adjudicatory "review" levels of their cases. The first level of review takes effect in front of an immigration judge. But if the noncitizen loses the case before the immigration judge, the noncitizen has the legal right to a second level of review that takes effect in front of the Board of Immigration Appeals, and if the noncitizen again loses the case before the Board, the noncitizen has the legal right to a third level of review in front of a Federal Circuit Court of Appeals of the United States. Only the second and third adjudicatory review levels mentioned above are considered as true "appeals" because the first adjudicatory review level is considered an original review level (much more on that difference is found further below). Most noncitizens are under the erroneous belief that when an immigration judge orders deportation in a case, the noncitizen has no other defenses and therefore will be forced to leave the United States immediately. That belief is incorrect.
When is an order of deportation final for purposes of executing the noncitizen's removal?
The "finality" of a removal (or deportation) order for purposes of being ready for execution occurs when either of the following conditions are met:
(1) Where no timely appeal is taken from an order of the immigration judge to the BIA (Board of Immigration Appeals), technically one day after the 30th day from the date the immigration judge entered the order of removal; keep in mind that the statute and regulations provide the noncitizen a period of 30-days in which to file an appeal. Thus, any attempt to remove the noncitizen from the United States before the 30-days to file the appeal have expired places the US ICE in the unenviable position of having to explain to the BIA the reasons why the noncitizen's deportation was executed before the time for filing the appeal had expired thereby depriving the noncitizen of the opportunity to file an appeal. This argument is somewhat less strong than it was after the enacment of the 1996 amendments because a noncitizen is no longer deprived from pursuing an appeal (so long as he/she files it in a timely manner within the first 30-days of the immigration judge's order) after the noncitizen is removed from the United States. Before the 1996 amendments, the argument was much stronger because the law did not authorize a noncitizen to pursue an appeal from outside of the United States if the order of deportation had already been executed;
(2) Where a timely appeal was indeed taken to the BIA, anytime after the date the BIA entered an order dismissing the appeal from the order of the immigration judge. An automatic stay is attached to all orders of removal from an immigration judge, so that US ICE must wait until the order of the BIA is issued before carrying out (executing) the order of the immigration judge. Before the 1996 amendments, that automatic stay also existed after the BIA dismissed the appeal if the noncitizen filed a timely petition for review. After the 1996 amendments, the automatic stay was repealed and no longer is extended after the BIA issues a decision on the appeal. Therefore, as soon as the BIA enters the order of dismissal of the appeal, the US ICE can start to execute the order of removal and the only thing that will prevent it from executing the order of removal is if an order of stay is granted by the United States Court of Appeals where a petition for review is filed accompanied by a stay request. Here, we want to warn you that some of the federal circuits, such as the Fifth Circuit (which covers the states of Texas, Louisiana and Mississippi) takes the position that the US ICE is not required to wait for a decision on the merits of the stay request, if a stay request is filed in conjunction with a petition for review. We have seen several cases from the Fifth Circuit giving no protection of any kind to a noncitizen who files a timely petition for review accompanied by a stay request to prevent US ICE from waiting until there is a decision on the merits of the stay by the court. Thankfully, this practice is not permitted in other federal circuits of the United States;
(3) Where a petition for review is filed accompanied by a motion for a stay of removal until the United States Court of Appeals decides the merits of the stay application (but see the exception of the Fifth Circuit immediately above);
(4) These rules are also equally applicable to final orders of removal arising from "reinstatement orders." In other words, because a "reinstatement order" is treated by the federal courts as subject to review by way of a petition for review before the Unites States Courts of Appeals the same as are orders of removal arising from decisions of the BIA, an order of reinstatement becomes executable immediately after the order is issued. This is so, despite the fact that the law will permit a noncitizen a period of 30-days in which to file a timely petition for review. In the end, it does not help the nonctizen to wait more than a day or two before filing a petition for review accompanied by a stay request immediately after the US ICE issues a reinstatement order.
And how likely is it, really, that an immigration judge would commit errors in his/her decision?
As a general rule, you should not be surprised to learn the answer to this question. Here you should employ your own common sense and life experiences in other sectors of the professions in search for the answer. For example, it should not be surprising to you that immigration judges commit legal errors (defined as errors in misapplying the applicable laws to a set of undisputed facts); or that they commit factual errors (defined as errors in misinterpreting a set of facts presented to support an application for relief) based in part on the judge's own preconceptions and prejudices from his or her own personal experiences in the past. It is this undeniable truth that forms the fundamental reason why the term "due process" of law embodies the right to an appeal from an order of an immigration judge. The rates of error committed by immigration judges throughout the United States varies from city to city and from courtroom to courtroom. Immigration judges (like any other judges) are humans just like the rest of us and are subject to commit a variety of errors in matters that may be unrelated to the application of laws to a set of undisputed facts in a particular case, and they do so for all of the same reasons that we are subject to commit errors in our own personal and professional lives. Suppose for example that a particular judge is very attached to her "faith" and during the course of a hearing to determine whether the noncitizen should be granted the opportunity to remain in the United States, she learns that the noncitizen involved in the case is a devoted atheist (nonbeliever). Would she always succeed at separating her own beliefs from her responsibilities to decide cases impartially as an immigration judge? Most judges would succeed most of the time but no judge will always succeed all of the time. What if an immigration judge is a firmed antiabortionist and he learns the noncitizen before him has had an elective abortion or two. As a judge, would he succeed at rejecting influences from her decision to go through an abortion when the time comes for the judge to weigh and exercise his discretion? What if the noncitizen is an LGTB member and is being petitioned for permanent residence by his or her same gender spouse and the judge is completely turned off by nontraditional same gender marriages. Would that judge be able to give the same credit to the gay or lesbian couple over the hardships they may suffer if the noncitizen is being deported as the judge would give to a couple in a traditional marriage if they were not a LGTB couple?
Immigration judges, as the humans they are, will face difficulty in always separating their own prejudices in their life experiences when determining if a noncitizen or witness is testifying truthfully or deceivingly, or whether the noncitizen or witness is showing remorse for a wrong committed for which the nonticizen is being deported, or whether the noncitizen deserves forgiveness for the wrong committed to prevent her deportation. The task of judging in any such case is by no means an exact science because the humans that do the judging bring to their courtroom their own idiosyncrasies and life experiences to the bench. And, if they are successful in detaching themselves from those experiences when hearing the testimony of witnesses in court in most cases, it does not mean or guarantee that they will be able to always maintain that rate of success. But errors can be "legal" or "temperamental" and while they may equally result in a wrongful decision they are substantively different.
More specifically, some federal circuit judges, whom have been granted the authority by federal law to review the decisions made by administrative immigration judges on appeal, have harshly criticized some of their performances, their conduct during the deportation proceedings and even for lack of competence as judges. Significant numbers of these criticisms have been published throughout the United States: "Lawless Courts", The Nation, November 8, 2010; "'Bullying' Immigration Judge Absent, Replaced," Philadelphia Inquirer, June 2, 2006; "Lawless Courts" Lack of Accountability Allows Immigration Judges to Violate Laws, Deport US Citizens. October 22, 2010; Some Immigrants Meet Harsh Face of Justice; Complaints of Insensitive—Even Abusive—Conduct by Some U.S. Immigration Judges Have Prompted a Broad Federal Review, L.A.Times, February 12, 2006; Courts Criticize Judges' Handling of Asylum Cases, N. Y. Times, December 26, 2005, among many other published articles in the last decade. Keep in mind however that not all immigration judges fall under this category and many are well-meaning and more successful than others in detaching their personal idiosyncrasies and prejudices from influencing their time at the immigration court benches. But legal errors can also be made by immigration judges not as a result of the conduct referred to in those articles, but simply because of misapplying the right rule of law to a set of facts presented in a particular case. Hence, what is important here is to keep in mind that immigration judges will make mistakes in the performance of their duty as any other judges.That is why our administrative and judicial systems incorporate different layers of review so as to enable the parties the opportunity to catch those errors through the appeal processes. It is also referred to as "procedural due process."
| Were you ordered deported by an immigration judge? |
If the answer is yes, you will need to file a "Notice of Appeal
" (Form EOIR-26) with the Board of Immigration Appeals ("BIA") no later than 30 days from the date of the decision of the immigration judge. (If you missed the 30-day deadline or a long time has passed since then go to the page entitled "Motions to Reopen" for more information.
) If you do not file a Notice of Appeal at all, or if you file the Notice of Appeal after
the 30-days have expired (unless you qualify to file a motion to reopen or a motion to reissue
) you will not be able to prevent federal agents from the Immigration and Customs Enforcement ("ICE") to order you to appear for your deportation, or (even worse) from visiting you at your home in the early hours of the morning to take you into custody while they arrange to deport you from the United States. The most important thing with regards to deportation appeals is for you to ensure that your Notice of Appeal arrives
at the BIA's address location (shown below) within the first 30 days. You must also take great care to count the 30-days accurately, commencing with the first day of the 30-days as the next day following the date of the order of deportation. [**See also important Caveat below about the common mistake of improper counting of the 30 days].
- When you mail the EOIR-26 to the BIA, you must also attach a filing fee of $110.00 by check or money order payable to the "United States Department of Justice". If you are an indigent, you will be attaching a fee waiver application on Form EOIR-26A (available from this website in the Special Alerts page) to avoid paying the filing fee. But be aware however that if you chose to file a fee waiver application, you should file Forms EOIR-26 and EOIR-26A within the first few days from the order of the immigration judge. Why? Because if the BIA does not approve your fee waiver application it will send back to you the entire package in the mail. This can cause you to lose crucial time because you will still be required to resend the EOIR-26 with the $110 filing fee within the same 30-days, or risk that it will arrive at the BIA after the deadline expires. In addition, you must attach a copy of the order of the immigration judge to the EOIR-26 and you must also write a concise statement therein detailing the reasons why you are filing the Notice of Appeal. All of these and other requirements are more fully explained in the referenced forms.
We think that you should not file the EOIR-26 yourself just the same as we would if you were planning to perform surgery on yourself, when you are not a trained surgeon. Your chances of prevailing in your appeal will improve considerably if you hire a deportation appellate lawyer to represent you on appeal. But if you cannot hire a deportation appeals lawyer immediately you should then file the EOIR-26 yourself (following these guidelines and those in the Form EOIR-26) to ensure that your Notice of Appeal is timely and properly filed. You will have more time to hire a deportation appeals lawyer thereafter because the most important filing on appeal will be the filing of an appellate brief, which is generally filed within the first 120 to 150 days from filing the Notice of Appeal. After you have secured the timely filing of your EOIR-26 with the BIA, the very next thing you should do is to begin the process of hiring the appellate lawyer (usually a different lawyer that the one who represented you, if one did, before the immigration judge in the deportation proceedings). There are sound, resonating common sense reasons for hiring a new lawyer and preferably one that is an expert in prosecuting deportation appeals as described in part, below.
- **Caveat: many affected noncitizens mistakenly file the EOIR-26 one (1) day too late because they mistakenly interpret the 30 day timeline period as one that is measured from month-to-month (e.g., from July 21 to August 21, when instead, the 30th day from July 21 is August 20.) Do not make that costly mistake yourself. Make sure that you count the actual days by starting with the day immediately after the day of the decision, as the first day of the 30 days, so that you will always count the 30th day accurately (e.g., in the case scenario above, July 22 is the first day and August 20 is the last day for filing it timely because July has 31 days).
|This is the address and the building that houses the BIA, 5107 Leesburg Pike, Suite 2000, Falls Church, VA 20530 (new zip code)
|Read below 9 reasons why is in your best interest to hire a deportation "appellate" lawyer to prepare and file your appeal instead of employing the same trial lawyer you had during the removal hearing in front of the immigration judge.|
There are sound reasons why a noncitizen ordered deported by an immigration judge should hire an appellate lawyer to represent him or her in the deportation appeal rather than to continue being represented by the same immigration trial lawyer the noncitizen had during the deportation proceedings when the case was before the immigration judge. Below we summarize nine (9) clearly valid reasons (some of which are more significant than others depending on the specific circumstances of individual cases) showing why it is logical and makes sense for the noncitizen to seek an appellate lawyer to represent the noncitizen in the appeal to the Board of Immigration Appeals from an order of deportation, rather than continuing with the same trial lawyer that represented the noncitizen had during the deportation proceedings before the immigration judge.
Reason # 1. To begin with, while there are numerous excellent immigration attorneys that consistently exhibit high professional standards in the immigration courts in every major city throughout the United States, the greatest majority of them either limit their law practices to the immigration courts only or the majority of their immigration law practice is devoted to "non-appellate" (*) cases. In fact, there is enough consensus among appellate experts and legal professionals that a competent experience deportation lawyer (whom is not necessarily an expert in prosecuting deportation appeals) will likely recommend to the noncitizen client to have an appellate lawyer represent the noncitizen instead of having the same trial lawyer handle the appeal process him or herself.
- "Non-appellate" cases explained. Every noncitizen that is placed in deportation proceedings (ordered to appear before an immigration judge) is given the legal right to have three (3) levels or stages of "hearings" or "proceedings" where their cases will be "reviewed." The first level or stage of these hearings or proceedings is conducted before an immigration judge in the local area where the noncitizen resides. At the conclusion of those hearings (months or even years later), the immigration judge will make a decision as to whether the noncitizen will be allowed to stay in the US or will be ordered to leave voluntarily or be ordered deported. When the case before the immigration judge concludes, the noncitizen is not automatically immediately forced to leave the United States because out of the three (3) levels or stages of hearings, the immigration judge hearings are only the first of the three (3) levels or stages. The second level of these proceedings is conducted before the BIA (the Board of Immigration Appeals) and this level of hearings or review, is in effect the first "appellate" level that the noncitizen will be given by law. And, like with the proceedings conducted before an immigration judge, the BIA will also make a decision at the conclusion of those proceedings on whether the noncitizen's appeal will be granted or denied, but if the appeal is denied, there still remains a third level of proceedings or reviews conducted before a federal circuit court of appeals. Consequently, out of these three (3) levels of hearings or proceedings or reviews that noncitizens are guaranteed to receive in their cases under our laws, only the second and the third levels are truly what is referred to as "appellate" proceedings. The first level of proceedings before an immigration judge is an "original" proceeding. And although in some instances noncitizens are able to obtain a fourth level of proceedings before the Supreme Court of the United States ("SCOTUS"), this last level of review is only "permissible" (if the SCOTUS wants to accept the case) and not instead a "legal right" as are the former three levels (and in that event, this last proceeding before SCOTUS is also an "appellate" proceeding). Hence, all of the cases that take place before the Board of Immigration Appeals and before the Federal Circuit Courts of the United States are considered "appellate" cases. Conversely, "non-appellate" cases for purposes of this explanation are immigration cases that fall outside of the deportation proceedings before an immigration judge, or the Board of Immigration Appeals or the Federal Circuit Courts of the United States—such as—applications for permanent residence, non-immigrant visas, employment visas, applications for labor certification, visitor visas, and several dozens of other immigration applications that do not directly involve deportation proceedings.
Reason # 2. Even assuming that the immigration trial lawyer handles his or her own appeals, involving an appellate expert lawyer in your case will very likely improve the chances of prevailing on appeal by infusing a different set of eyes into the case and by providing a fresh different look at the appellate strategies of the case.
Reason # 3. Another common sense reason to hire an appeals' lawyer is because the job of the appellate lawyer requires assembling different and specialized skills than those demanded from a trial lawyer. It is important to understand that the performances of the trial lawyer as compared to that of the appellate lawyer, are vastly distinct because they are directed to wholly different audiences. For example, the immigration trial lawyer is typically expected to convince the immigration judge that his client meets all of the requirements that the law provides for obtaining an immigration benefit (e.g., asylum, adjustment of status, cancellation of removal, a waiver application, etc.,) and he or she is also expected to convince the judge to exercise favorable discretion to grant his or her client’s application for relief. In contrast however, the appellate lawyer concentrates in pointing to the appellate judges the errors that were committed during the deportation hearing before the immigration judge. This includes not only the errors from the immigration judge but also from the lawyers representing the government and the noncitizen, which in the absence of those errors, the outcome of the case may have been different. Consequently, the job description between the appellate lawyer and the trial lawyer is significantly different and in many instances, even incompatible.
Reason # 4. Likewise, the job of the immigration judge is significantly different than the job of the appellate judges. An immigration judge for example admits and excludes evidence, hears the testimony of the witnesses, evaluates the witnesses' credibility by focusing his attention on the degree of specificity of the testimony and by observing the court demeanor of the witnesses, listening to their tone of voice and the assertiveness of their responses, the consistency of their testimony compared with other evidence presented, and ultimately, the immigration judge decides the case based on the quality and the amount of the evidence and testimony the immigration judge received during the trial.
In contrast, the appellate judges only review the underlying deportation case for the errors that may have been committed during the deportation proceedings. Assuming errors were committed, the appellate judges will take a second look at them to determine whether those errors may have played an important role on the outcome of the case. This is because errors that were not important to the outcome of the case are considered "harmless" and have no impact on the outcome of the appeal. And you should know that errors from all participants are not uncommon in all trials and everywhere regardless of the type of cases (criminal or civil) but those are not the errors that matter for purposes of appeals. Only the ones that may have altered the final outcome of the case are the important ones that matter in an appeal, which in legal parlance, they are referred to as "material errors".
Reason # 5. Appellate judges will focus their attention exclusively on the "existing record" created during the deportation proceedings before the immigration judge. Which means, that the existing record represents all of those documents that are contained inside the non-citizen's court file, and which also means, if they were not presented to the judge during the deportation proceedings, they are not contained inside the file. Because appellate judges limit their decisions on appeal to only those documents contained inside the "existing record" the appellate judges will not consider claims, arguments and/or evidence that was not previously presented to the immigration judge for his or her consideration in the first place.
The appellate judges also focus their attention not with the emotions that may have been invoked or developed for the immigration judge's consumption, but with the type of errors that may have been committed during the deportation hearings, and whether, in the absence of those errors, the final outcome of the case may have been different. But appellate judges will not examine the entire record of proceedings before the immigration judge looking for such errors. It is up to the appellate lawyer to point any such errors to the appellate judges. Because appellate judges depend on the appeal lawyers to point the errors that were committed during the deportation proceedings to them, the appellate judges will never get the opportunity to review such errors if the appeal lawyer does not point out the errors to them. This means that if an important error was committed by the noncitizen's own trial deportation lawyer but the error is not presented to the attention of the appellate judges, that important error will go unnoticed and will not be considered because it is not the job of the appellate judges to find it. Can you think of a stronger reason to hire a new appellate lawyer?
Reason # 6. On appeal you will not get the opportunity to retry your case again before the appellate judges, but you will get an opportunity to convince them that important errors of fact and/or law were committed during the trial stages of your case before the immigration judge, which, absent the existence of those errors, the outcome of the case may have been different. Note that you do not have to convince the appellate judges that absent the error(s) of fact(s) and/or law, you would have won your case. No. You only need to establish to them that but for the existence of the error(s), the outcome "may" have been different.
Reason # 7. Another reason to hire an appeals' expert lawyer is (as noted above) because the lawyer’s skills that are required to represent a noncitizen on appeal are different than those required of the lawyer to represent the noncitizen before the immigration judge but also because involving a different lawyer in the case, with deportation appeals experience can only improve the noncitizen's chances on appeal. How so? Well, for starters, appeal judges are not able to hear the testimony of the individual witnesses from their own mouths as the immigration judge did. Instead, because appellate processes are conducted in writing without the parties’ presence, appellate judges have to rely entirely on the appellate lawyer’s ability to narrate the story of the case to them in writing. That is what deportation appeal lawyers do—i.e., they tell the party's story about the noncitizen and what happened during the proceedings before the immigration judge, which is never fully apparent in the administrative record that was created during those proceedings.
To illustrate this concept better, consider for example that during the deportation proceedings, the immigration judge determines that the noncitizen failed to present enough evidence to convince the judge that the noncitizen was being persecuted in his home country due to political reasons. In contrast however, the noncitizen claims that he did not file any such documents because he was not informed in advance specifically as to what kind and what amount of evidence was going to be deemed enough to convince the immigration judge that political persecution had taken place. In other words, it appears that the error in not producing enough evidence on the issue of persecution was not the result of the nonexistence of that evidence but that it was not timely presented to the immigration judge for consideration.
The appellate judges will not get to consider the reasons why not enough evidence on the issue of persecution was presented to the judge in the immigration court. Rather, they will only get to decide whether the documents presented indeed amount to enough evidence to satisfy an objectively reasonable immigration judge. The appellate judges (as well as the immigration judge in this example) will never get to hear the real reason for why not enough documents were presented on that issue, because nobody has argued those reasons for consideration. All the appellate judges get to review in this hypothetical case scenario is the sufficiency of the evidence presented to the immigration judge, not instead the reasons why. Thus, if the judge properly determined that there was not enough evidence to convince him, there is a strong likelihood that the appeal (at least on that issue) will not succeed. The appellate judges will never get to review the hidden reasons mentioned in the example—unless the noncitizen’s appellate lawyer presents them with those reasons for consideration in an appropriate motion for remanding the case to the immigration judge. Why remanding? Because appellate review cannot occur over an issue that was not previously presented to the immigration judge in the first place. Remember that the Board will not consider issues that have been raised for the first time.
Reason # 8. Consider another example, where the immigration judge determines that a request for a continuance to introduce important evidence (witnesses or documents) will not be granted despite the existence of good cause. The judge reasons that the request should have been made much earlier than when it was, given that the evidence relied upon to seek the continuance existed long before the request was made. Consider further that as a result of the denial of the continuance, the noncitizen’s chances to prevail diminished considerably because the hearing will go forward without the evidence that would have been presented if the continuance had been granted. The immigration judge, finding no good reason to grant the continuance at this late stages denies it. And now consider that, the noncitizen claims that she gave that information to her lawyer’s assistant months before the court hearing, but for some unknown reason, the assistant never gave that information to the lawyer causing the request to be made to the judge late on the date of the trial of the case. Here again, nobody argued to the immigration judge as to the real reason why the motion to continue was not timely filed and the administrative record of the deportation case will not contain such information. Thus, the appellate judges (as well as the immigration judge in this hypothetical) will never get to hear that argument because it has not been presented—unless the expert appeals lawyer presents this argument on appeal by requesting remand of the proceedings so that these facts may be presented to the immigration judge for consideration. A motion to remand while the case is on appeal is a very powerful tool within the expert appeals lawyer's arsenal of arguments.
Reason # 9. Yet another common occurrence is when the immigration judge determines that evidence presented by the noncitizen will be excluded by the judge because the evidence is in a foreign language that was not properly translated to English, or not properly authenticated as required by the regulations. But in contrast, the noncitizen claims that she provided those documents to the lawyer’s office months in advance so that there was sufficient time to translate and file them with the immigration court. Here again, the real reason why that evidence was not considered by the immigration judge will never be heard by the appeal judges unless it is presented to the attention of the appellate judges in a proper motion for remand.
In sum, because the appellate judges reviewing determinations of the immigration judge will never get to "hear" the noncitizen's claims (in the hypothetical examples shown above) unless the appellate lawyer properly alerts them, then the likelihood that the noncitizens in those instances will prevail on appeal will be substantially diminished. These are just a small example of the type of errors that an appeal's lawyer will have to concentrate in, if he or she is to succeed in establishing an effective representation of the noncitizen on appeal.
|If you need help with preparing, filing and prosecuting a deportation appeal with the BIA, or a Petition for Review with the Federal Circuit Court of Appeals we offer you our expert deportation appeals' services since 1997 at very affordable cost, a total of $1,480 for "Level A" appeals and $2,398 for "Level B" appeals ($110 filing fee not included). Visit "Our Fees" page for more information, or call us toll free at (888) 450-2501, or email us now with your questions at AppealWorks@yahoo.com |
Our Appellate Practice is Exclusively Dedicated to Preparing and Filing Direct "Appeals" to the Board of Immigration Appeals, from Orders of Deportation Issued by Immigration Judges, as well as Preparing and Filing "Petitions for Review" to the U.S. Federal Circuit Courts of Appeal from Adverse Orders from the Board of Immigration Appeals.
Our common sense and human life experiences dictate to all of us that if we were personally involved in performing a single task everyday (i.e., researching the deportation laws of the United States; writing deportation appellate briefs, motions to reopen, or motions to remand or reconsider deportation orders) as opposed to dividing our attention into multiple legal services (i.e., preparing applications for permanent residence, applications for naturalization, non-immigrant visas, labor certifications, employment authorizations, etc., or alternatively, if we were also involved in the practice of family law, bankruptcy law, employment law, etc.,) there is a much greater likelihood that we will perform that one single task we concentrate our entire attention on—much better than we would if we had to divide our attention in performing various other services or legal practices day-in and day-out. At Immigration AppealWorks®, the only legal service that we perform day-in and day-out, is researching the deportation laws and writing deportation appellate briefs as well as motions to reopen deportation orders, motions to remand or motions to reconsider.
Our appellate services at Immigration AppealWorks® also extend to preparing and filing petitions for review before all of the federal circuits of the United States after the Board of Immigration Appeals has rendered an adverse decision against a noncitizen. We took a professional approach at creating our appellate practice by developing our own internal review system and well-structured appellate procedure to enable us to map-out an individual resolution for every appeal that we accept. We do that by first uncovering the specific factual circumstances that transpired during the lower deportation proceedings be it before the immigration judge or the Board of Immigration Appeals, i.e., the "who" did "what" wrong, as well as the "how" to fix those mistakes that took place in order to provide the noncitizen who lost his or her case with a fair opportunity to have a new fresh look at their case, and give new life to their hope and opportunity to remain legally in this great country of ours. This is all we do every day-in and day-out.
What is the difference between Administrative and Judicial Appeals?
An appeal arising from an order of an immigration judge is referred to as an "administrative" appeal because it is presented for decision to a federal administrative agency (i.e., the BIA). An appeal arising from an order of the BIA on the other hand is referred to as a "judicial" appeal (or Petition for Review) because it is presented for decision to a Federal Circuit Court of Appeals. An administrative appeal widely differs from a judicial appeal because of the limits that are imposed on administrative judges. What limits? For example, administrative judges are without authority to question the constitutional validity of a rule of law. To be clear, generally stated, the Congress of the US writes the immigration legislations that then become laws (called "statutes") after they are signed by the President of the US ("POTUS"). Thereafter, the Attorney General of the US is in charge of promulgating rules that are designed to implement those statutes that were just passed by Congress and the POTUS. But these rules (called federal regulations) are more specific, detailed or descriptive than the statutes themselves and they expand, in part, on "how" the statutes will apply, in "what" circumstances, and to "whom", "when", "where", etcetera. One good example of this is the Voting Rights Act of 1965 (consisting of various statutes) prohibiting certain state governments from enacting state laws that may interfere with the rights of citizens of those states to vote in elections. Congress wrote the Voting Rights Act in 1965 based on an amendment to the federal constitution (the 15th Amendment) to protect the rights of citizens that were being disenfranchised by certain states. The Attorney General thereafter promulgated much more specific and detailed rules (called regulations) implementing the Voting Rights Act statutes. These federal regulations then instruct the various states affected with specificity on what things those states may or may not do that will violate the Voting Rights Act statutes. Without the promulgation of these federal regulations, it would be much more difficult to determine when certain conduct would violate one or more of the laws. But sometimes, regulations are promulgated (written) in a manner that either exceeds the intended purpose or does not go far enough in others. The only branch of the government empower with the authority to declare a regulation as "exceeding" its intended purpose or not going "far enough" is the federal judiciary (the federal courts). The administrive immigration judges and the BIA form part of the executive branch of the Government, not the judiciary.
The same thing is true with immigration statutes. The Attorney General promulgates these more detailed rules named "regulations" describing what specific conduct may violate the statutes passed by the Congress and POTUS. Only federal judges (the "judiciary" branch) are empowered with the authority to block an Act of Congress so that if you are challenging a rule of law on the grounds that the rule offends a constitutional principle (e.i., it violates your right to equal protection of the law), the administrative judges whom are not part of the judiciary will be without authority to decide the constitutional question presented because they are compelled by law to follow the rule that you are challenging, even if later, that same rule is stricked down or overruled as unconstitutional by a federal court on the next level-up. Because of this, often a noncitizen challenging a rule of law as being unconstitutional because it deprives the noncitizen of a right that is guaranteed by the federal constitution, will have to go through the administrative appeal process knowing that his challenge will be disapproved by the administrative judges, so that on the next level in judicial review of the same challenge, the noncitizen may be heard by the federal court judges on whether the rule is unconstitutional. Then, you may ask why bother with filing an appeal with the BIA, if the administrative judges cannot decide the question you present to them in the first place? The short reason is because the next level up judges, those in the federal circuit courts of appeal are only authorized to review decisions of the BIA, not of the immigration judge. A noncitizen wishing to appeal an unfavorable decision of an immigration judge must first go to the BIA with their challenges and only after the BIA makes a decision in the case, can the noncitizen then file an appeal with the federal court of appeal. Also, the next level up federal circuit judges will not be able to conduct a review of any other arguments you may have (that do not involve constitutional challenges to rules of law) if you do not present them to the BIA first. Why? Because, assuming you had one constitutional challenge to a rule and two (2) other arguments that had they been presented to the BIA, they might have been corrected, your failure to present them to the BIA is considered a "waiver" of the right to have it reviewed by the federal circuit court of appeals. The design and intended function of the BIA is to correct the errors that may have been committed by the lower court (i.e., the immigration judge) so that if you do not present the error first to the BIA, the error will remain intact in the case without a resolution because you did not first presented it to the BIA, and the federal circuit courts can only review a decision of the BIA.
When a noncitizen is placed in removal proceedings before an immigration judge, the noncitizen will be afforded the procedural right to one (1) level of "administrative" review before the BIA and one (1) level of judicial review before the Federal Circuit Court of Appeals. Although a noncitzen can also file a petition for review known as "petition for certiorari" or "writ of certiorari" before the Supreme Court of the United States (as the very last level of judicial review) the Supreme Court does not have to hear the case unless it elects to do so.
This also means that before an order of deportation from an immigration judge becomes final and operative (executable) against the noncitizen, the noncitizen will have the right to exercise these two (2) levels of review of the decision of the immigration judge as a procedural "check" to make sure that the immigration judge's decision was in fact correct.
Since 1997, our appellate practice has been exclusively dedicated to filing administrative and judicial appeals from orders of deportation (and removal or exclusion) issued against noncitizens in immigration courts across the United States. If you or a family member have been ordered deported by an immigration judge, we will file the EOIR-26 Notice of Appeal before the BIA in a timely manner and will prosecute the appeal process to completion no matter where you or your family member live in the United States. And if you or a family member have received a final order of deportation from the BIA, we will file the Petition for Review with the corresponding Federal Circuit Court of Appeals in the circuit that has jurisdiction over the city where the immigration court that issued the order of deportation was located, anywhere in the United States. We offer noncitizens a simplified internet electronic process where all of the documents that are needed to represent them are exchanged by use of scripted emailings in a safe, secured and expeditious manner no matter where the noncitizen resides in the United States. Moreover, the noncitzen will have the ability to receive documentary proof of filing with the BIA or the Federal Circuit Courts electronically, almost instantly after we file it.
If you have been ordered deported by an immigration judge recently (or your deportation order was appealed to the BIA but denied recently), you have probably spent a good amount of time in looking for a qualified professional to represent you in your immigration appeal needs.
The chances are that if you researched the internet or telephone book looking for a professional to help you with your appeal, you came across numerous law offices and immigration lawyers throughout the United States that advertise themselves as able and willing to handle deportation appeals. But it is also likely that these professionals offer in addition other immigration legal services that are not exclusively related to the filing of deportation appeals. Common sense dictates therefore that these professionals do not exclusively devote their legal services to a deportation appellate practice, as we do.
Becoming an expert in filing and prosecuting immigration appeals (as it would be the case in becoming an expert in any other profession or skill) requires a continuous commitment not only in staying informed over continuing changes in immigration law but also in developing and maintaining a well-structured appellate methodology for choosing the most viable issues, and for preparing and prosecuting the appeals. Common sense dictates that the more legal services that an immigration lawyer offers to its clientele, the more likely it is that his or her appellate practice's time and effort is being divided amongst the many other legal services the lawyer is providing. After all, a professional's intellectual capacity, attention and concentration is being tugged, divided and shared among the various services that the professional offers. To become and to remain an expert on filing and prosecuting deportation appeals requires no less than a continuous full-time commitment to the deportation appellate practice. No part-time involvement will do.
At Immigration_AppealWorks® we offer expert immigration appellate services to noncitizens or their attorneys and these services are exclusively limited to filing and prosecuting immigration appeals before the BIA, and filing and prosecuting motions to reopen before immigration judges or the BIA. As a result, AppealWorks® is able to deliver in each appeal case we take, all of the appellate expertise we have gained from preparing and prosecuting exclusively deportation appeals and motions to reopen since 1997.
We also file and prosecute Petitions for Review before the United States Courts of Appeals in all federal circuits of the United States. We do not offer any other immigration legal services (as most immigration lawyers and firms do) such as filing applications for permanent residence, naturalization, asylum, non-immigrant work visas, or filing applications for any other numerous immigration benefits that are available to the public.
We limit our services exclusively to the preparation and filing on behalf of your clients (or, on your behalf if you are a noncitizen who has received an order of deportation from an immigration judge) any direct and timely appeal before the Board of Immigration Appeals or Petition for Review before any federal circuit of the United States.
And what is a viable "direct" and "timely" appeal before the BIA?
A "direct" appeal refers to an appeal arising from an original order of an immigration judge determining that the noncitizen is either deportable, excludable, or removable from the United States (e.g., a legal determination made by an immigration judge that the noncitizen involved is unlawfully present in the United States and that is also ineligible for any form of relief from deportation, exclusion or removal). And a "timely" appeal refers to an appeal that is filed within the first 30 days from the order of the immigration judge. A "viable" direct appeal is an appeal that it is also timely filed, within the first 30 days after the immigration judge issues an order of removal (deportation).
A viable direct appeal enjoys a series of very important legal benefits. First, a viable or direct timely appeal affords the noncitizen involved in the appeal process the benefit of a stay of deportation of the order of the immigration judge (meaning, the order of the immigration judge holding that the noncitizen is deportable cannot be executed against the noncitizen by ICE agents during the administrative appeal process).
Second, it allows the noncitizen to continue to apply for and obtain yearly employment authorization documents during the administrative appellate process. And most significantly than all, it will allow the noncitizen to obtain judicial review of the BIA's final administrative order of deportation by a court of appeals of the United States, if the BIA affirms the decision of the immigration judge and the noncitizen must take a second step to protect her rights.
Why is this a significant factor?
Well, because administrative agencies (such as the BIA and the Office of the Immigration Judge) are without authority to determine the constitutional validity of the laws they have been delegated to enforce. By this we mean, that neither the Office of the Immigration Judge nor the Board of Immigration Appeals can determine whether a particular rule of immigration law is constitutional or unconstitutional. Rather, only the Supreme Court of the United States and the Federal Circuit Court of Appeals have the exclusive and ultimate authority to interpret if a particular statute or regulation violates the federal constitution, although any District Court of the United States may also decide the question.
Hence, if an immigration judge rules against a noncitizen (orders that the noncitizen be deported) and on appeal the BIA affirms the decision of the immigration judge, if the noncitizen does not get an opportunity to obtain judicial review of the administrative final order (because the direct appeal was not filed in a timely manner), then a federal court of the United States will never have the opportunity to decide whether the rule of law applied against the noncitizen by the immigration judge or the BIA was in fact validly constitutional because only federal courts can decide the constitutionality of an immigration rule of law, not the agencies.
Example of a Direct and Timely Appeal
If an immigration judge enters an original order of deportation, exclusion, or removal against a noncitizen on September 1, the noncitizen's notice of appeal filed with the BIA on or before October 1 will be considered a timely filed and direct appeal. Why? Because it was filed "on time" (within the first 30 days of the date of the order of the Immigraton Judge) as required by the federal regulations (rules that govern the filing of appeals) after the immigration judge entered the order of deportation against the noncitizen, on September 1.
As a result of having filed the direct appeal timely within the 30 days required by regulation, the noncitizen will be permitted to continue to remain present in the United States without any risk of being deported, will be permitted to continue to apply for and receive employment authorization documents for the duration of the administrative appeal process, and most significantly, the noncitizen will be permitted to seek judicial independent review of the administrative final order of deportation before a federal circuit court of appeals.
If, on the other hand, the noncitizen mistakenly files the notice of appeal with the BIA in Falls Church, Virginia, on October 2, rather than on October 1, then, the appeal will not be recognized as a timely and direct appeal and will be dismissed or rejected as "untimely filed." As a further consequence of the untimely filing, the noncitizen will lose her right to continue to receive employment authorization, her statutory protection from being subject to immediate deportation from the United States and most significantly, will lose also her statutory right to obtain judicial review of the administrative final order of deportation and the right to a decision from a federal court determining whether the rule of law applied to the noncitizen was indeed constitutionally valid.
And that is all what we mean when we make reference to either a direct appeal or a timely appeal.
Is the noncitizen without any recourse if the appeal is untimely filed?
Before moving on to another subject, we want to point-out to the reader that in those situations where the noncitizen files the notice of appeal "out of time" (the appeal notice arrived at the BIA late, belated, tardy, etc.) the noncitizen's most likely only hope will be to file a "motion to reopen" (more fully explained to in substantial detail below in this same page) explaining therein the reasons why (1) the appeal was not filed in a timely manner (but you must also explain the reason why it could not have been filed in a timely manner) or (2) that you were unaware that the notice of appeal was not filed in a timely manner (if, for example, you hired a lawyer or non-lawyer to file the appeal timely but he/she failed to do so and you did not know it sooner). CAVEAT: As further evidence that under our judicial system in the United States, immigration laws are not written in cement (i.e., they are subject to modification as a result of new federal circuit court decisions that are constantly interpreting them) in the jurisdiction of the United States Court of Appeals for at least two (2) federal circuits, the rule that a notice of appeal must be filed within the first 30 days from the date of the immigration judge's decision has been interpreted to nonetheless allow the BIA to consider a belated notice of appeal. Said in other words, the BIA has always taken the position that it "lacks the necessary jurisdiction" (i.e., power, authority) to consider any notice of appeal that is not filed within the first 30 days from the date the immigration judge issued its decision according to the rule that governs notices of appeal. These two federal circuits (the 2nd and the 9th) have interpreted that same BIA rule but in the opposite. They have interpreted that BIA rule as not prohibiting the BIA from exercising its authority to consider a late arrived notice of appeal. Hence, if you missed your deadline of filing the notice of appeal in a timely manner within the first 30 days from the order of the immigration judge, and your case arose from one of the immigration courts under their jurisdiction (the 2nd and 9th federal circuit courts) you will have an opportunity to argue to the BIA that your reasons for not having filed the notice of appeal on time, should be excused provided you act diligently and expeditiously (in other words you will be required to act promptly from the moment you learn you missed the 30-day deadline or your right to appeal will be lost, permanently. However, this is not an easy task by any means, but at least is not a totally lost case because if your reason(s) for not filing it on time are reasonable under the circumstances, and the BIA denies the request to accept the untimely notice of appeal, you will have the right to seek judicial review of the BIA's refusal to consider your untimely notice of appeal.
If your reasons for not filing a timely notice of appeal is based on the circumstances described earlier (i.e., that you had hired a lawyer, or a non-lawyer, to file the notice of appeal on time and he/she negligently did not file it timely), and your case did not arise from one of the two federal circuits mentioned above, you may be able to file a "motion to reissue" the deportation order with the immigration court so that the time for filing the appeal within 30 days may be reinstated (regained). But in such cases, before you even attempt to file such a motion, consider this big, big CAVEAT before doing anything: noncitizens, by regulation (rule of law), are given one (1) single "shot" at getting that point across to the Board member who will be deciding the motion to reopen requesting that the appeal be "reinstated" provided the motion to reopen is filed expeditiously after the date when it should have been filed (in otherwords do it quickly to avoid the Board denying your request because you failed to act diligently in making the request).
If the noncitizen does not convince the Board member during that single opportunity the noncitizen is given by law of the reason why the notice of appeal could not have been filed timely, then, the noncitizen has waisted that only one, single opportunity given by law. If there is a single lesson that you should take from this entire issue involving untimely notices of appeal and motions to perfect the appeal, it should be that the "immigration landscape" is so replete with hurdles that it would be "wholly unwise" for you to attempt filing the motion yourself, or hiring someone who is less than an expert to do it on your behalf. One mistake and your motion will be denied not on the merits but for some procedural error that should have been avoided. The BIA (as well as the federal circuit courts) will take the first opportunity you give them to not decide your case on the merits, without a doubt.
Here is an analogy to better explain the same concept.
To analogize this concept, think of it as if you were placed in a thick jungle in Africa, armed with a single rifle and suddenly you come across a deadly (but very alive) beast, intent in killing you because it is hungry or it feels threathened by your presence (unless of course you kill it first). Now consider further that you have been given a single bullet inside that rifle—a true life challenge. My suggestion to you in that case scenario would be that you better aim really, really well at the beast before pulling the trigger and shooting because if you do not shoot the beast the right way, you will not live to tell the story. No different here. You better aim right, or hire a professional shooter—if you are like most people in this fictitious jungle, e.g., you do not feel competent, lucky or confident enough!
Back to the subject of appeals now. Included among the above referenced appeals are those appeals from a finding of an immigration judge that the noncitizen is deportable, excludable or removable as well as orders of an immigration judge denying applications for relief from removal, exclusion or removal, such as denials of applications for Suspension of Deportation, Cancellation of Removal, Asylum, Withholding and Convention Against Torture (CAT), or denials of applications for waivers of deportability or inadmissibility under sections 212(c), 212(h) or 212(i) among many other forms of relief from removal.
But what does it mean to file an appeal?
Filing an appeal from an order of an immigration judge ordering the deportation (or removal, or exclusion) of a noncitizen consists of an administrative reviewing process, conducted by the BIA where the appealing party (nearly always the noncitizen) gets the opportunity to explain to a BIA member (assigned to review the administrative appeal) of the reason(s) why the decision of the immigration judge is incorrect and should be reversed, vacated and/or remanded.
Point of fact: You should be aware that although it is a fact that all immigration judges make errors and mistakes when presiding over any deportation, exclusion or removal proceedings—not all of their errors and mistakes are of the type of errors and mistakes that are necessary for the BIA to reverse, vacate and/or remand the case. [Reverse, vacate and/or remand (either of them) occurs when—the BIA in reviewing a case on appeal determines that the decision of the immigration judge was made in error and the BIA then first "vacates" the prior order of the immigration judge, meaning it nullifies its effect, and either reverses the decision of the immigration judge or returns the case to the immigration judge to correct it.] But the BIA will not reverse, vacate and/or remand an appeal case even if you prove that the immigration judge made a mistake—unless you can convince the BIA that the outcome of the case would have been different if the error had not been committed by the immigration judge. To illustrate this better, only those errors that are of significant importance (we refer to them as "material" errors) actually qualify for the BIA to reverse, vacate and/or remand it to the immigration judge. Conversely, if the error (or multiple errors) of the immigration judge in your case, are of the type that after considering them in the best light in your favor, would still not have changed the outcome of the immigration judge's ultimate decision in your case, then, those types of errors are classified as "harmless errors" and those types of errors will not amount to requiring the BIA to reverse, vacate and/or remand the appeal to the immigration judge. Therefore, the errors of the immigration judge must be of the type of errors that "really" matter in order to compel the BIA to reverse, vacate or remand the decision to the immigration judge for correction.
What important goals can be accomplished by filing an appeal?
There are various goals that can be accomplished in filing an appeal from an order of an immigration judge, which are determined by the particularized individual interest of the noncitizen (such as the most immediate goal, which is preventing the decision of the immigration judge from becoming “final”-- because, when you allow the order of the immigration judge to become final there is nothing else that you can do to stop agents from the Department of Homeland Security/Immigration and Customs Enforcement to visit you at home before 6:00 a.m., and take you into custody until they can execute the order of removal from the United States).
There are many other good reasons to file an appeal least of which is the ability to continue being present in the United States legally, continuing to be eligible for employment in the United States for as long as your appeal is pending before a final decision is made in your appeal. But clearly the most evident reason for filing an appeal is to take the opportunity to convince the BIA that it should reverse or vacate the decision of the immigration judge, or send the case back to the immigration court (“remand”) for a new decision consistent with the law as interpreted by the appellate decision of the BIA.
For example, convincing the BIA in your appeal that— had the immigration judge not made the errors he/she made—the outcome or result of your case would likely had been different (e.g., your application for adjustment of status may have been granted instead of denied; or the immigration judge may have been required to consider your applications for relief from deportation instead of finding you ineligible for it, or, the government may not have been able to prove that you were subject to deportation instead of establishing that you were not eligible for any relief, etcetera, etcetera).
In such instances where you convince the BIA member that your case should be remanded to the immigration judge, as a result you would have a new opportunity to convince the immigration judge that you deserve the grant of your application for adjustment of status relief, or the grant of your application for a waiver of inadmissibility, or asylum or the many other applications for relief from deportation, removal or exclusion.
When you consider that the majority of the applications for relief from deportation (exclusion or removal) are denied because they were poorly prepared and presented (meaning, applications that lacked sufficient documentary evidence to establish they warranted approval, or applications that did not establish all of the elements that are required to be proved), the possibility that you could get a second opportunity to present your case anew before the immigration judge should be sufficient reason to make most noncitizens willing and able to file an appeal.
Example of an Application Presented to an Immigration Judge that Fails to Establish each of the Elements that are Required by Law
To convince an immigration judge that the noncitizen deserves cancellation of removal for nonpermanent residents, the noncitizen must establish four (4) different elements (referred to as "statutory" elements because they are the elements of the statute)—and they are: (1) continuous physical presence in the US for no less than 10 years (keep in mind that the period counting towards the 10 years is ended on the date that ICE agents issue an order for the noncitizen to appear before an Immigration Judge); (2) has been a person of good moral character during those 10 years (3) has not been convicted of certain eliminating crimes and (4) demonstrates that the removal from the US would inflict exceptional and extremely unusual hardships on the noncitizen's qualified relatives (either US citizens, or lawful permanent residents whom are either parents, spouses or children under 21 years old).
In some form, the noncitizen must initially show to the Immigration Judge the first 3 of the 4 elements in order to be allowed to have a "merits" hearing down the road in the future. For example, you would be required to present a birth certificate of a child born in the United States to convince the Immigration Judge that you have a "qualifed" relative; you would need to show as many years of income tax return filings that you have in order to show that you were "physically" present in the US for the rerquired 10 years; and at least a statement from you or others who know you well that you are a person of "good moral character." These 3 initial showings are only to get you in the doorsteps to allow you to be given a hearing (called the "merits" hearing) several months later where the Immigration Judge will expect you to show convincingly with more detailed information (documents and testimony) that you indeed meet each of the 4 elements mentioned above. The most difficult element to prove is the last one, number 4, but if you can show the Immigration Judge in the first few appointments in court that you meet the first 3 elements, the Immigration Judge will extend to you the opportunity during a "merits" hearing to convince him or her that you should be granted the application for cancellation of removal. The period of time between the first time that you appear in court and the date of the "merits" hearing varies depending on the city where the immigration court is located, but it is usually over 1 year and sometimes 2 or 3 years. Consider that in a small city, the courts are not as busy as they are in big cities. Likewise, in small cities there are less numbers of noncitizens going to immigration courts, etc. If you are in custody, your case will take priority and the hearings will in the average take only about 4 to 6 months to complete.
A poorly prepared and presented application for cancellation of removal is one that establishes some, or most, but not all of the four (4) statutory elements. Most applications of this type are denied because when the application was presented to the judge it did not contain evidence establishing all four statutory elements.
Yet others are denied because even though the applications presented evidence establishing all four elements, the evidence presented in support of one, or more of the statutory elements, was disputed by the US government's attorney, or such evidence was insufficient (not enough evidence presented), or it lacked credibility, or it was biased, etc.
Applications for cancellation of removal for nonpermanent residents are also very demanding because they require supporting documents to prove each and every statement of hardship you want to make. For example, if you want the immigration judge to consider that one of your relatives suffers from a particular serious illness, you cannot establish that fact unless you present a diagnostic letter or report from a medical doctor corroborating the existence of the illness, or you have to present a medical report from a hospital corroborating the medical illness, or you present a detailed report from an insurance company eliciting the existence of the illness in the report.
But you never, never, never rely only on testimony alone (unless the testimony is from the treating physician or other medical expert) to convince the immigration judge that your relative suffers from such illness. You should know that the immigration judge would make a reversible mistake if he/she credited your testimony alone as sufficient to establish the existence of that fact.
This is a vivid example of the reason why most applications for relief are denied by immigration judges. The applications were poorly prepared and poorly presented to the immigration judge! However, by no means, is this example the only one reason why these applications are frequently denied.
How difficult is to prevail on an appeal?
The short answer is that to prevail on an appeal is very difficult—but not impossible. The long answer is that it depends on numerous factors of which the most frequent ones depend on the magnitude of the errors that occurred during the trial proceedings and the experience of the appellate lawyer in identifying which of those errors involved raise the likelihood of showing sufficient prejudice. In fact, the BIA’s own fiscal released statistics over the number of appeals that are filed in the course of a year in comparison with those that are dismissed, in the end, tells a good part of this story. But, keep in mind however that the burden of establishing that the immigration judge’s decision is incorrect (i.e., the burden of winning an appeal) is on the appealing party (most generally the noncitizen).
More importantly, keep also in mind that several thousands of appeals are received every month by the BIA but there is only 13 permanent and 5 temporary BIA members to conduct the reviews of those appeals—a very limited number of them indeed handling a very vast number of appeals that are being filed every month. Therefore it is a fact that—if you want to convince the BIA member assigned to your case that the immigration judge's decision is incorrect and should thus be reversed, vacated and/or remanded—you have a very limited amount of time to get that BIA member’s close attention to your appeal—because he/she needs to decide a very large number of them and there is a very limited time that will be dedicated to your appeal.
Caveat: You should know that while the Board does not publish any particular approach on how its members review appeal briefs or motions to reopen or reconsider, logic and experience dictates that the Board would have adopted screeners before the appeals and/or motions get to the Board member assigned to review the merits of the appeal and/or motion. The screeners are employees of the Board trained in verifying whether a particular appeal brief and/or motion is in strict compliance with all of the regulatory requirements imposed on appeals. Thus, the screeners would be the very first line of review, which an appeal brief and/or motion would need survive in order to move to the merits step. Here, in this very first line of review is where most appeal briefs and/or motions get decided. If they do not comply with all of the regulatory requirements, the appeal brief and/or motion will not move to the merits step and will suffer an early adverse disposition.
And let us be honest. The most accurate gage as to how likely it may be that an appeal to the Board will be successful (or not) depends for the most part on the "quality" of the performance of both the attorney and the noncitizen during the trial of the noncitizen's application before the immigration judge, as well as, the "quality" of the presentation of the documentation in support of the application for relief. A thorough and qualitative presentation of a case to an immigration judge is one that has been successful at not only anticipating "all" of the problems that will likely lie ahead during the trial of the application, including the testimony of witnesses and the sufficiency of the supporting evidence but also in preparing for how to successfully resolve these problems in advance. Frankly, a surprising number of the cases we see in our appellate practice share these common predominant denominators: (a) negligently prepared applications (missing and/or contradictory corroborative evidence, no translations accompanying foreign language documents), (b) negligently prepared witnesses (meaning the witnesses had no idea what to expect from their testifying experience at the witness' stand, or unfamiliarity with the documents presented in support of the application) particularly the star witness (the noncitizen), and (c) cases where it is evident that the attorney did not take the necessary time to scrutinize the case to anticipate all of the problems the case had before the day of the trial date. Hence, on the day of the trial, these "surprises" inevitably come up during the presentation of the case and the unprepared Captain of the ship cannot stop the ship from sinking.
What is a well-prepared appellate brief?
Preparing an appeal from an order of an immigration judge requires that you focus upfront on the issues that matter and that you are able to convince the reviewing BIA member in the first sentences that this is an appeal brief that is worth examining. Your appeal must strive very hard in facilitating the process of the BIA member’s examination by writing your appellate brief concisely and keeping the BIA member’s interest and attention sufficiently focused on the errors of fact and law of the immigration judge’s decision. To do this, requires at a minimum an expertise in eliciting the right issues to be raised as well as an ability to artfully illustrate why those errors determined the final outcome of the case.
The writer of an appellate brief must enlist the BIA member’s interest and attention in the appellate issues very promptly, must be extremely accurate in its supporting contentions and citations and must logically persuade him or her into yielding agreement.
As a caveat: if the noncitizen does not file a "timely" appeal (meaning an appeal that it is filed within the 30 days time limit from the date of the judge's decision), then that order becomes final and ICE agents can effect the deportation of the noncitizen at any time after the expiration of the time for filing the appeal—anytime after the 31st day from the date the immigration judge ordered the noncitizen deported.
Glossary: Throughout this page and the entire website we use the words "deportation" and "removal" interchangeably because these words are synonymous in immigration parlance. Each word refers to the same act of (a) ordering that a noncitizen be deported or (b) the act of physically deporting a noncitizen from the United States. As you will notice, there is a significant legal difference between having been ordered deported and having been actually physically removed from the United States. The most significant of these differences since 1996 is that a noncitizen that has been physically deported from the US, faces severe criminal and civil consequences for returning to the US illegally (i.e., without inspection or by employing fraudulent documents to gain entry into the United States). In addition, if a noncitizen that has been previously removed from the United States is attempting to return legally, he or she will face severely difficult and costly hurdles that will need to be overcome before receiving the authorization to return. Noncitizens whom have been ordered deported, but have not yet been removed, stand on a more favorable legal position than their physically deported counterparts.
We also used the term "noncitizen" throughout this website instead of using the term "alien" and we do so primarily because of the negative connotation that the latter term has received in the past and because the term "noncitizen" better describes whom otherwise has been referred to for years as an "alien". How? well, an alien is usually referred to as a person whom is born in a "foreign" country and comes to the United States, while that is not totally accurate. This is because a person may be a noncitizen of the United States and still be one who was born in the United States (e.g., a person whom is born in the United States but later abandons this country's citizenship to adopt the citizenship of foreign country and later returns to the United States as a noncitizen).
See SPECIAL ALERT section for noncitizens who applied for legalization under the Amnesty program or the Special Agricultural Worker ("SAW") program under the Immigration Reform and Control Act of 1986 ("IRCA") for important information. This information may play a significant role in any appellate administrative and judicial review proceedings pertaining to such noncitizens.
See also the SPECIAL ALERT section for information pertaining to noncitizens who are now in criminal proceedings, or have an existing criminal record after having suffered criminal convictions for various crimes (including misdemeanors). This information will play a significant role in the planning and strategizing the defense of a noncitizen who is a defendant in criminal proceedings, and, his or her defense in immigration proceedings before an immigration judge, almost always following a criminal conviction.
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