BOARD OF IMMIGRATION APPEALS
The Board of Immigration Appeals (BIA), part of the U.S. Department of Justice, is the highest administrative body for interpreting and applying immigration laws. It is located at the Executive Office for Immigration Review (EOIR) headquarters in Falls Church, Virginia.
The BIA hears appeals from decisions made by immigration judges and by district directors of the U.S. Department of Homeland Security (DHS). Moreover, the BIA is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before DHS, the immigration courts, and the BIA.
The BIA reviews decisions by immigration judges and has appellate jurisdiction over family-based immigrant petitions under INA § 204 (a) as well as orders of removal and applications for relief from removal, criminal immigration matters, and motions for reopening and reconsideration of decisions previously rendered. In most cases, if the BIA affirms the lower court’s decision, then you can still appeal in a U.S. Court of Appeals.
CAN YOU APPEAL YOUR IMMIGRATION DECISION?
In any immigration appeal, you will have to give specific details why you disagree with the decision of an Immigration Judge or USCIS officer, setting forth the findings of fact, the conclusions of law, or both, that you are challenging. Where the appeal concerns discretionary relief, the appeal must state whether the alleged error relates to statutory grounds of eligibility or to the exercise of discretion.
Most appeals are reviewed by a single Board Member. If you assert that your appeal warrants review by a three-Board Member panel, you may identify the specific factual or legal basis for your contention.
ADMINISTRATIVE APPEALS OFFICE
The Administrative Appeals Office (AAO) hears cases including employment-based immigrant petitions under INA § 204 (b), and non-immigrant worker petitions under INA § 214, denials of re-entry permit applications, or revocation of approvals of immigrant visa petitions as well as many other bond matters.
The AAO may also reopen one of its prior decisions on its own motion. The AAO will first determine whether the motion meets the requirements of a motion to reopen.
A motion to reopen is based on documentary evidence of new facts. It must state new facts that will have to be proved at a hearing if the motion is granted, and must be supported by affidavits or other evidence. INA § 240(c)(7)(B). The motion must show that the evidence is material to the case, was not available at the time of the original hearing and could not have been discovered at the original hearing. 8 CFR § 1003.2(c)(1).
APPEALS IN THE U.S. DISTRICT COURT AND THE U.S. CIRCUIT COURT OF APPEALS
Under certain circumstances, an immigration appeal can be heard by the U.S. District Court and the U.S. Circuit Court of Appeals.
If you disagree with a BIA ruling, you may file an appeal to either a U.S. District Court or Federal Court of Appeals, depending on the case.
In cases in which an appeal to the federal courts is permitted, the petition for review must be filed in the Court of Appeals which has jurisdiction over the case, (the circuit where the immigration judge completed the case). The petition must be filed in the court of appeals within 30 days of the removal order becoming final, and must be accompanied by the appropriate filing fee. A motion for stay of deportation or removal should also be filed with the appeals court.
Once the Court of Appeals has jurisdiction, it will establish a briefing schedule. These limits can only be altered if the court, for good cause shown, orders differently. If an alien fails to file a brief within the time required, the Court must dismiss the appeal unless a manifest injustice would result. If the decision of an appeals court were not favorable to the alien, the only recourse would be to file a petition to the U.S. Supreme Court.
APPEAL OF AN I-130 DENIAL IN DISTRICT COURT
It is important to first determine why USCIS denied the I-130 petition.
There usually are two reasons:
- you did not provide enough evidence to prove that you are in a bona fide marriage (lack of documentation of your relationship or non-payment of filing fees) or
- you are in a fraud marriage, achieved for the sole purpose of cheating immigration laws. Marriage fraud is a serious immigration violation with long-lasting consequences.
If your case is denied, the first option you have is to file a new petition. The second option is to file an immigration appeal to the BIA. This appeal process could take up to a year to be completed.
Denials are treated very seriously under U.S. immigration law as they could lead to a permanent ban on future petitions under Section § 204 (c) of the Immigration and Nationality Act (INA). BIA usually issues a decision within 6 months, but may also order a remand to USCIS, which would create further delay. If the BIA affirms the denial, you can file an appeal to a U.S. District Court.
All other BIA decisions must be appealed to a U.S. Court of Appeals. These appeals, called “petition for review”, must be filed within 30 days of the BIA decision. Once a petition is filed, the Circuit Court will issue a receipt with instructions on how the case will proceed.
These appeals are very involved and take much longer to prepare, research and draft than do most appeals before the BIA. While most immigration attorneys handle appeals to the BIA, only a handful of attorneys handle cases before the Circuit Courts of Appeal.
It is important to seek out the advice of an experienced immigration attorney before filing a petition for review. Without the help of a legal professional, the process of appealing your case may be unsuccessful.
IMMIGRATION APPEAL FORMS
To appeal before the BIA, the applicant must file a Notice of Appeal (EOIR-26) and required fee, so that is received within 30 days of the Immigration Judge’s decision. The EOIR-26 must be used only to appeal a decision made by an Immigration Judge.
Instead, if you wish to appeal certain USCIS decision, you must use the Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of an Immigration Officer). The EOIR 29 should be used to appeal a USCIS decision on a Form I-130 (Petition for Alien Relative) or Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant).
The filing fee of both forms is currently $110, and must be paid by check or money order.
You must send the Notice of Appeal so that it is received by the BIA within 30 calendar days after the Immigration Judge’s oral decision, or within 30 calendar days after the date the Immigration Judge’s written decision was mailed. The Notice of Appeal must arrive at the BIA in 30 days or less. If it arrives late, your immigration appeal will be summarily dismissed.
A certificate of service must also be included with the EOIR-26, stating that service of the Notice was made on the Office of the Chief Counsel. All correspondence to the BIA must include a certificate of service to the Office of the Chief Counsel. It should also be sent by certified mail return receipt requested, Federal Express, or other overnight delivery service.
Your attorney may file an additional written brief or statement at a later date and the BIA will send a briefing schedule and, when appropriate, a transcript of the testimony. Your attorney may also ask for oral argument and the BIA will notify if the request is granted.
Call our office right away if you have an outstanding deportation order and wish to file an immigration appeal to the Board of Immigration Appeals.