Appeals of CIS, IJ Decisions, and CBP Decisions
“The immigration office denied my application. What do I do now?”
“I’ve been ordered deported. What do I do? I can’t leave my family.”
“I was told that I have a removal order against me and I can’t return for 10 years!”
The worst possible news has happened. The decision you have been waiting for these past months has finally arrived. It’s a denial letter. After years of hearings in immigration court, you learn that you have been ordered deported from the United States. After a family emergency in your home country, you return to the United States only to be denied entry and informed that you have a bar for 10 years. It may seem that there is no more hope or that the system is against you and that there is no recourse.
Often USCIS and immigration judges get the law wrong. Due process violations commonly occur with Custom and Border Protection encounters. The laws of the United States provide mechanisms to challenge and remedy decisions that are entered incorrectly or are based on violations of due process rights and law. The appeals process is the way by which a higher authority reviews a decision. In some instances a favorable decision on an appeal will result in a reversal of an unfavorable decision. Other times it can provide a client with another chance to present his/her case. One good decision by an appellate court can even affect thousands of similarly situated individuals, enabling other individuals with similar circumstances to access immigration relief. The appeals process is an essential tool of the U.S. legal system to not only ensure that the right decision was entered in your case, but also that the legal system is working properly and fairly for you and others.
Appeals of USCIS Decisions
Appeals of unfavorable decisions issued by USCIS are generally reviewed by the USCIS Administrative Appeals Office (AAO). Your denial notice will specify whether a decision can be appealed and how to appeal the decision. The AAO will review decisions to ensure consistency and accuracy in the interpretation of immigration law and policy as it pertains to the particular case. The following categories fall within the AAO’s purview:
- Most employment-based immigrant and nonimmigrant visa petitions (I-129 and I-140)
- Immigration petitions by alien entrepreneurs (I-526)
- Temporary Protected Status (TPS)(I-821)
- Fiance(e) petitions (I-129F)
- Applications for waiver of ground of inadmissibility (I-601)
- Applications for permission to reapply for admission after deportation (I-212)
- Certain special immigrant visa petitions (I-360)
- Orphan petitions (I-600 and I-600A)
- T and U visa application (I-914)(I-918) and related adjustment of status
- Applications to preserve residence for naturalization purposes (N-470)
- Immigration and Customs Enforcement determinations that a surety bond has been breached.
*The AAO also has jurisdiction to review decisions by the USCIS service centers to revoke certain previously approved applications.
Immigration Judge Decisions
Decisions issued by immigration judges are reviewed by the Board of Immigration Appeals (BIA). The BIA can review decisions of immigration judges in removal, deportation, and exclusion processes (with some limitations on decisions involving voluntary departure). The BIA reviews decisions pertaining to asylum, withholding of removal, temporary protected status, the Convention Against Torture, and other forms of relief. Additionally, the BIA can review decisions of immigration judges on motions to reopen (where proceedings were conducted in absentia), rescission of adjustment of status cases, bond, parole, detention, family-based immigrant petitions, waivers of inadmissibility, and administrative fines and penalties. The BIA can review issues of fact and issues of law. In other words, you can challenge a decision if you disagree with the factual finding in your case and/or file an appeal in order to challenge the interpretation of the laws to your case.
The appeals process for immigration judge decisions are time-sensitive. What this means is that you cannot delay filing your appeal, additionally you must indicate to the immigration judge whether you want to reserve the right to appeal or waive. If you waive, the decision becomes final. Additionally, if you miss the filing requirements of your appeal, the decision is final. You must file a notice of appeal to the BIA within 30 days of the immigration judge’s oral decision. For written decisions without an oral decision, must be filed within 30 days of the mailing of the decision. You must get your notice to the BIA within 30 days. If it is received beyond the 30 days, it will be dismissed.
You can also challenge a decision by the BIA, by filing for a petition of review in the federal court of appeals in the circuit in which the case was originally tried. There are similar timing deadlines for filing an appeal with the federal court of appeals. Petitions for review of BIA decisions must be filed within 30 days of the issuance of the BIA decision. If there is a shorter period of voluntary departure, or if you have received the “bag and baggage” letter, it is critical to not only file the appeal, but also request a stay of removal in order to remain in the United States during the pendency of your case.
CBP Decisions
Customs and Border Protection (CBP) oversees security at ports of entry and enforces U.S. immigration laws. CBP does this work in a number of ways. CBP officers can refuse entry to an applicant for admission through issuance of an expedited removal order or allow an applicant to withdraw an application for admission. CBP can also charge someone with abandoning their lawful permanent resident status and issue a notice to appear in immigration court. CBP can waive an applicant’s inadmissibility to the United States and can also parole an applicant into the United States in limited emergency circumstances. CBP is given wide discretion on its decision-making regarding these issues.
The consequences of CBP decisions can range from a permanent bar to the United States to allowing admission when there is lack of proper travel documents. Given CBP’s discretion in these issues, it is a difficult process to seek review of its decisions. To make matters worse, by the time most applicants seek legal assistance, the impact of the decision has already taken effect. Dealing with CBP can be a long and frustrating process. Our office provides expert assistance in handling these matters. We can assist in resolving potentially life-changing circumstances by advocating on your behalf with CBP.
Challenging a decision by USCIS, an immigration judge’s order, or a decision/finding by Customs and Border Protection, is a daunting task. But, it can be done. Our team of experienced attorneys can help.