Appeals

An adverse decision by an immigration judge may be appealed to the Board of Immigration Appeals ("BIA"). The BIA is located at the headquarters of the Executive Office of Immigration Review ("EOIR") in Falls Church, Virginia. The BIA handles the appeals from every immigration court in the country. The BIA is the highest administrative body for applying and interpreting federal immigration laws.

In general, the BIA decides appeals based on written briefs and transcripts of proceedings. The BIA rarely decides cases based on oral arguments, but the agency has the power to allow oral argument. Immigration judges from all over the country must follow BIA decisions unless they are overruled by the Attorney General of the United States or the circuit court of appeals having jurisdiction over the individual immigration court.

After the oral decision is delivered in immigration court, the respondent must orally reserve appeal if s/he intends to appeal the decision. Appeals to the BIA must be made within 30 calendar days of the Immigration Judge's oral decision. It is not enough that you mail the notice of appeal within 30 days; the BIA must receive the notice of appeal within 30 days. The notice of appeal is made on an EOIR-26 form. If the EOIR-26 is received by the BIA after the 30 day deadline, the appeal is dismissed.

Apart from an appeal, motions to reopen and motions to reconsider are other options. A motion to reopen asks the immigration judge or BIA (depending on which court heard the case last) to reopen the case based on new facts or evidence that were unknown and unavailable previously, changed country conditions in the alien's home country, or ineffective assistance of prior counsel (the previous attorney did a substandard job). A motion to reconsider asks the immigration judge or BIA (depending on which court heard the case last) to reconsider the case based on a change in the law or newly published case law, which is relevant.

If the appeal to the BIA is unsuccessful, the respondent has another possible appeal available. Adverse BIA decisions are appealed to the circuit court of appeals with jurisdiction over the case. There are eleven circuit courts of appeal in the United States (D.C. has a circuit court as well). Each circuit has jurisdiction over a number of states. If the immigration case originated in a California immigration court, the Ninth Circuit Court of Appeal decides the appeal from the BIA decision. The Ninth Circuit is well-known for its pro-immigrant interpretations of the laws; therefore, appeals from the BIA to the Ninth Circuit may be worth the additional time and expense if there is a basis for the appeal. A petition for review must be filed with the Circuit Court of Appeal within 30 days of the BIA decision.

If you have received an adverse decision from an immigration judge and are considering an appeal, contact The Nuñez Firm to discuss your case. Managing attorney Jay Nuñez will listen to your case and offer you a realistic assessment of whether an appeal is a viable option for you.

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