Your Guide to The Immigration Appeals Process

Your Guide to The Immigration Appeals Process

Dealing with a denial or unfavorable decision in your immigration case can leave you frustrated, confused, and worried about your future. You’re likely wondering if any options exist to resolve this significant setback.

The good news is that, in many cases, you have the right to appeal an immigration decision you believe was incorrect or unfair. So don’t lose hope. We’ll walk you through the basics of navigating immigration appeals so you understand your options.

Whether you’ve received a denial on an important visa application, are facing removal proceedings, or have a deportation order, appealing may be your best next step.

While the appeals process can seem complex and intimidating, we’re here to break it down into straightforward steps, so you know what to expect. We’ll also discuss when an appeal is recommended and how working with a qualified immigration attorney can substantially strengthen your chances of a favorable outcome.

What Is the Immigration Appeals Process?

The immigration appeals process is a legal avenue available to individuals who disagree with decisions made by immigration officials. An appeals process allows you to present your case to a higher authority, seeking a reversal or modification of the original decision. This process is crucial for ensuring fairness and justice in immigration proceedings.

When Should You Consider an Appeal?

It is essential to carefully evaluate your case and consult an immigration lawyer to determine if you have grounds for an appeal. Some common situations that may warrant an appeal include:

How to Appeal to the Administrative Appeals Office (AAO) or USCIS

If United States Citizenship and Immigration Services (USCIS) denies your application or petition, you can generally appeal the decision to the AAO. The AAO is an appeals office within USCIS that reviews denied cases.

However,  you must use a different process to appeal some decisions, such as Form I-130, Petition for an Alien Relative or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant. These cases fall under the Board of Immigration Appeals (BIA) jurisdiction. We’ll outline that process next.

Here is the typical AAO appeals process:

Step 1: Determine Your Eligibility to Appeal

Only affected parties with legal standing, typically a petitioner or an applicant, can file an appeal. Check the notice received for the unfavorable decision. It will state if there is a right to appeal.

Step 2: Fill Out the Appropriate Form

Fill out Form I-290B, Notice of Appeal or Motion, and identify any errors of law or fact in the original decision on the form or attach a statement.

Step 3: Pay the Filing Fee

Pay the appropriate filing fee or include a request for a fee waiver if unable to pay. Currently, the fee is $675. However, if you are an Iraqi or Afghan national submitting an appeal for denial of a special immigrant visa, this fee may not apply.

Step 4: Submit Within the Given Time Frame

File the appeal within 30 days after personal service of the decision or 33 days if the decision was mailed. Some decisions have different time frames, so check the decision notice and instructions on Form I-290B for specifics.

The appeal is considered filed on the day the designated USCIS location receives it, not the date it was mailed.

Step 5: Submit to the Correct Address

Do not mail appeals directly to the AAO; use the addresses listed at Appeals mailed directly to the AAO will be rejected and returned.

Step 6: Include Additional Documents (If applicable)

Decide whether to attach a brief or additional evidence or whether to submit them within 30 days. Provide detailed statements or briefs identifying errors and support assertions with relevant, credible evidence. Include a complete English translation for any document in a foreign language.

Step 7: Track Your Appeal

Keep track of your appeal and any requests for additional evidence or notifications from USCIS. If necessary,  you can request expedited processing for your appeal.

Step 8: Await the Initial Field Review

The USCIS field office that made the original decision will review the appeal first, usually within 45 days. The appeal may be approved during this review or forwarded to the AAO for further consideration.

How to Appeal to the Board of Immigration Appeals (BIA)

When appealing a decision made by an immigration judge, the appeal is typically filed with the BIA. Certain petitions (such as those mentioned before) might also fall under the BIA’s jurisdiction.

Step 1: Complete the Appeal Form

Fill out Form EOIR-26. In the first parts of the form, you will provide basic identification information and select why you are appealing.

What Decision Are You Appealing Text Box on Form EOIR-26

In item #6 (or in attachments to your Notice of Appeal), specify why you disagree with the Immigration Judge’s decision. Identify the specific findings of fact and conclusions of law that you are challenging, and support them with relevant evidence.

Appeal decisions are typically made by a single board member. However, if you believe your case warrants a three-person panel, indicate your preference on the form.

You will also let the board know if you would like to present oral arguments and if you plan to send a brief or statement after filing the appeal.

Even if you plan on sending additional information after the Notice of Appeal, you must explain the grounds for your appeal in detail, or your appeal will be rejected.

Remember to include your signature on item #11 or the BIA will reject your appeal.

Signature Box on an Form EOIR-26

While Form EOIR-26 is the main one used for appealing immigration judge decisions to the BIA, there are some other important forms to know:

  • Use Form EOIR-29 to appeal a decision made by a DHS officer, such as a denied visa petition or denied naturalization application.
  • Use Form EOIR-45 for appeals in practitioner disciplinary cases.
  • There are separate forms for a motion to reconsider or reopen a case before the immigration court or BIA.

Step 2: Serve the Opposing Party

Mail a copy of the completed Notice of Appeal and any attached documents to the Assistant Chief Counsel of U.S. Immigration and Customs Enforcement (ICE), who acts as the opposing party. You must also complete and sign the “Proof of Service.”

For motions to reopen/reconsider, serve a copy to opposing counsel and the immigration court or BIA.

Some appeals require you to serve notice on additional parties, like the DHS district counsel for your area. Carefully check the instructions for each form.

This step is extremely important. Failure to properly serve the opposing party can result in the rejection of your appeal.

Step 3: Pay the Appeal Fee and Mail the Form

The appeal fee will vary depending on your case. The typical fee is $110. However, the fee for motions to reopen or reconsider filed with the immigration court rather than the BIA is $145. Practitioner disciplinary case appeals have a significantly higher fee of $675 (Form EOIR-45).

Send your Form EOIR-26 or Form EOIR-29 along with the filing fee to:

Board of Immigration Appeals

Clerk’s Office

P.O. Box 8530

Falls Church, VA 22041

If you cannot pay, attach a completed Fee Waiver Request (Form EOIR-26A) to the Notice of Appeal.

BIA must receive your Notice of Appeal within 30 days. It doesn’t matter if you mailed it before the deadline.

Step 4:  File Your Legal Brief (If Applicable)

The court will issue a briefing schedule indicating the deadlines for you and the opposing party to submit legal briefs supporting your arguments. Be sure to follow the schedule.

The government will likely submit a response brief, so carefully review and prepare your rebuttal. Focus on countering their key points.

There are no hearings for appeals to the BIA, but the immigration court may hold a hearing for motions to reopen or reconsider where you can argue your case.

Step 5: Wait for a Decision

Decisions are made by either one Board Member, a 3-person panel, or, in rare cases, the entire Board. The complexity and significance of the case will determine how a decision is made.

Once the Board reaches a decision, they will mail the decision to both parties through regular mail. In some cases, decisions are sent electronically through ECAS.

The Board’s decision is considered administratively final unless the Board itself, the Attorney General, or a federal court down the line changes the decision. Unless a stay or injunction is granted, parties must comply with and implement the Board’s decision.

If you receive an unfavorable decision from the Board, talk to your immigration attorney about whether you have grounds to challenge the decision further through a federal court case or other legal avenues.

Success Rates in Immigration Appeals

The success rates in immigration appeals can vary depending on various factors, including the strength of the case, the quality of legal representation, and the specific circumstances involved.

While there is no guarantee of success, having an experienced immigration lawyer can significantly improve your chances of a favorable outcome.

Factors Affecting Success Rates

Several factors can influence the success rates of immigration appeals. These factors include:

  • Strength of legal arguments: The quality and persuasiveness of the legal arguments presented in the appellate brief can significantly impact the outcome.
  • Supporting evidence: The availability and strength of supporting evidence can strengthen the case on appeal and increase the chances of success.
  • Precedent and case law: The interpretation of immigration laws and relevant case law can play a crucial role in determining the outcome of an appeal.
  • Appellate authority: The specific appellate authority hearing the case, whether the BIA, AAO, or USCIS, may have varying tendencies and standards for decision-making.

The Role of an Immigration Lawyer in Appeals

Navigating the immigration appeals process can be overwhelming, especially for individuals without legal training or experience. An immigration lawyer is crucial in providing professional guidance, expertise, and support throughout the appeals process.

Assessing the Viability of an Appeal

An experienced immigration lawyer can assess the viability of an appeal by carefully evaluating the circumstances, the strength of the case, and potential legal arguments. An attorney can honestly assess your chances of success and guide you in making informed decisions.

Preparing a Persuasive Appellate Brief

One of the essential tasks of an immigration lawyer is to prepare a persuasive appellate brief. The lawyer will gather relevant evidence, research applicable laws and precedents, and craft compelling legal arguments to present your case in the best possible light.

Representing You at Hearings

An immigration lawyer will represent you at all hearings and oral arguments, advocating for your rights and presenting your case effectively. They will ensure your voice is heard and make compelling arguments to support your appeal.

Navigating Complex Procedures and Deadlines

The immigration appeals process involves intricate procedures and strict deadlines. An immigration lawyer will navigate these complexities on your behalf, ensuring all necessary documents are filed correctly and within the required timeframe.

Keeping You Informed and Providing Guidance

Throughout the appeals process, an immigration lawyer will keep you informed about the progress of your case, provide updates on pertinent developments, and offer valuable guidance and support. Your lawyer will address your concerns and answer any questions you may have.

Take Control of Your Future With Scott D. Pollock & Associates, P.C.

Dealing with a denial or an unfavorable decision in your immigration case can be discouraging, but remember, it’s not the end of the road. Scott D. Pollock & Associates, P.C., is here to help you navigate the intricate immigration appeals process.

Why Choose Us?

Our experienced team of immigration attorneys understands the complexities and challenges of the immigration appeals process. We work diligently to assess the viability of your appeal, prepare persuasive appellate briefs, represent you at hearings, and navigate the complex procedures and deadlines, all while keeping you informed and providing invaluable guidance every step of the way.

Our Commitment to You

At Scott D. Pollock & Associates, P.C., we strive for fairness and justice in every immigration proceeding. We strive to provide personalized, professional service, focusing on your unique needs and circumstances, and we fight relentlessly for your rights, aiming to turn unfavorable decisions into favorable outcomes.

Let’s talk about your case. Get in touch today—complete our online contact form.

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