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If an immigration case decision had a negative ruling, it may be possible to appeal as a last legal resort to seek a different result. Of course, we recommend that you do not face these procedures alone, as they are very complex. 

But what is an immigration decision appeal? Well, it is a legal procedure through which an immigrant can challenge an unfavorable decision made by USCIS. 

That said, at Curbelo Law we will be able to help you seek a successful outcome with our expert and committed legal team at your disposal. Please call us as these issues need to be addressed as soon as possible. 

Now let’s look at how to successfully appeal an immigration case decision.

How Can I Appeal An Immigration Case Decision In The U. S. In 2024

Appeals are usually filed with the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA). To do this, Form I-290B, notice of appeal or motion, is generally used. However, there are certain exceptions: 

  • Applications for special immigrant workers, cancellation of temporary resident status and legalization are made through Form I-694.
  • For family-based immigration petitions and other decisions appealed to the BIA, they are filed with Form EOIR-29.
  • Appeals regarding naturalization are made using Form N-336.

It should be noted that notifications of unfavorable decisions that can be appealed indicate what type of form to use.

immigration lawyers in new jersey

As an immigrant, you must understand that if a decision is appealed, you must have a lawyer present. Our immigration lawyers in New Jersey can provide you with the necessary support to guide you throughout this entire process.

Where Should I File An immigration Appeal?

Filing a immigration appeal in the United States must be made to one of the following authorities:

  • Board of Immigration Appeals (BIA).
  • U. S. Court of Appeals for the Federal Circuit.
  • USCIS Administrative Appeals Office.

Still, where you should file your immigration appeal will vary on a case-by-case basis. Furthermore, it also depends on the immigration agency responsible for the original decision. 

We suggest that you consult with USCIS and seek professional advice to determine precisely what is needed to make an appeal.

How Do I Determine If I Can Appeal An Immigration Case decision?

immigration appeals

Although an immigration decision can be appealed, this will not always be the case. To do this, you will have to determine if you can do it, some ways to know are:

  • If you have U. S. citizen parents or grandparents and a clean criminal record, you can appeal to naturalize.
  • As a Green Card holder for at least 5 years, you can appeal cancellation of removal if you meet certain requirements.
  • If you face persecution in your country for reasons such as race or religion, you can appeal by filing for asylum.
  • If you have family ties to U. S. citizens, you can apply for adjustment of status.
  • You may request a 212-hour waiver if your removal would cause extreme hardship to citizen family members.
  • Refugees can apply for a waiver with evidence of persecution in their home country and no history of threat to the government.

Can I Really Appeal A Deportation Immigration Case decision?

Yes, but you must show that the immigration judge made a legal error when issuing the deportation order. For example, by omitting crucial evidence or ignoring an important testimony.

Steps To File An immigration Appeal

To ensure an effective immigration appeal, it is recommended that you follow these steps:

Step 1: Know The Deadline To File The Appeal

It is essential to be aware of the deadline for filing the immigration appeal. Generally it is 30 days after the decision, but it may vary depending on the type of case.

Step 2: Obtain The Respective Form

Find the appropriate immigration appeal form for your case on the appropriate agency’s website. For example, the BIA website or the court of federal appeals website.

Step 3: Fill Out The Form

Fill out the appeal form with the required information, providing accurate and clear data. Also, include all relevant details about your case.

Step 4: Prepare A Legal Declaration

Write a detailed legal statement explaining the reasons for your appeal, supported by clear arguments based on the law and available evidence. It is recommended that you seek professional legal advice to ensure a strong and convincing presentation.

Step 5: Collect Evidence

Gather all relevant evidence to support your appeal, such as witnesses, medical records, and letters of support, making sure to present solid, verifiable evidence.

Step 6: Fee Payment Verification

Be sure to check if you need to pay any applicable appeal processing fees, as some appeals may require a payment.

Step 7: Filing The Notice Of Appeal

Once you have gathered all the documentation and prepared your return, send the immigration appeal notice to the appropriate agency, following the specific filing instructions and including all required documents.

Types of immigration appeals for removal cases

There are various types of immigration appeals that vary according to certain aspects. For example:

  • Actions under the Administrative Procedure Act (APA): Allows you to challenge USCIS actions considered arbitrary.
  • Appeal to the BIA: It is possible to appeal to the Board of Immigration Appeals within 30 days of the decision.
  • Appeal to the U.S. Courts of Appeals: This court reviews final deportation orders only if the alien has exhausted all available administrative remedies.
  • Foreign Criminals: Some foreign criminals with deportation orders for certain crimes can file an appeal. However, it depends on the crime committed and the possibility of obtaining a waiver of inadmissibility.
  • Habeas Corpus: Used to help immigrants detained for an excessive amount of time while their cases are pending.
  • Writ of Mandamus: This is used to help immigrants whose cases are delayed by USCIS.

Do not face removal proceedings alone. At Curbelo Law we are here to help you. Contact us today and increase your chances of staying in the United States.

What Types Of Decisions Can Be Appealed To The BIA?

BIA can review a variety of issues, including:

  • Asylum in the United States.
  • Withholding of removal.
  • Deportation orders.
  • Motions to reopen and reconsider previous decisions.
  • Denial of parole.

Denied Applications That Can Be Appealed

Other denied applications may be appealed. These will be before AAO and include:

These are some of the types of requests you can appeal. However, it is important to have the help of an immigration lawyer to provide you with advice.

Credible And Reasonable Fear Appeals

An alien under expedited removal or summary deportation may request a review based on credible fear or reasonable fear. 

This review can be appealed before an immigration judge. If credible fear is determined, the deportation order is annulled and asylum is requested. Otherwise, the foreigner will be deported without the possibility of appeal.

how long do immigration appeals take

What Should The Appeal Form Contain?

The Appeals Board evaluates the reasons supporting your appeal, that is, why you think the judge made a mistake. 

If you do not meet this requirement, the Board may deny your appeal. Additionally, appeals that are considered frivolous or filed for the purpose of delaying a deportation are not accepted. 

How Long Does An Immigration Appeal Take?

The process to resolve a deportation appeal before an appeals court usually takes about 6 months. However, this time period may be expedited or prolonged, depending on the complexity of the case.

We note that the time it takes to resolve an appeal does not indicate the court’s inclination regarding a specific decision. Therefore, a delay does not necessarily suggest an adverse ruling.

Now that you know how long an immigration court appeal takes, we advise you to call us. With our help, you will increase your chances of staying in the U. S.

How Long Do I Have To File A Deportation Appeal?

Usually, the deadline to file a deportation appeal is 30 days from the date the decision was made (not the date the decision was received). 

However, some cases have a shorter period. For example, revocation of an approval has a maximum period of 15 days from the date of the agency’s decision.

Other important aspects to consider are:

  • No extensions are granted for this deadline.
  • If you receive the decision by mail, you will be given 3 additional days to file your immigration appeal. So, that would be 33 days for denials and 18 days for revocations.

When Is An Immigration Appeal Considered Filed?

The appeal is not considered filed until the Board receives it along with the corresponding fee. 

If the last day to appeal is a Saturday, Sunday or holiday, the deadline is automatically extended to the next business day. Although it is possible to manage your own appeal, given its complexity, it is recommended to do so through an immigration attorney. 

If the appeal arrives one day after the deadline, the Board will not accept it and there will be no other opportunity to appeal. 

How Much Does An Immigration Appeal Cost?

If you decide to appeal an immigration decision, you will be required to pay a filing fee. Currently, this fee is $800 for Form I-290B, although it is subject to change. 

In some cases, you can request a waiver of the filing fee, especially if you cannot afford it. USCIS may waive the original filing fee in certain cases, or if the original petition or application did not have a fee associated with it.

Either way, you can find out the prices for all the forms you must file through the USCIS website.

Is A Payment Necessary To File An Appeal With The Board Of Immigration Appeals?

Yes, a fee is required to file an appeal with the BIA. However, in certain circumstances, BIA may waive payment of this fee.

If you do not have sufficient financial resources to cover the fee, we recommend that you consult with our professionals. This will be to assess whether you may qualify for an exemption.

Can A Denied Visa Be Appealed?

Generally, only the petitioner can appeal or file a motion when a visa is denied or revoked. 

If you are the beneficiary, you may not be able to appeal unless you are also the petitioner. For example, a VAWA visa self-petitioner. 

However, if you are the beneficiary of an employment petition filed by your employer and USCIS revokes it, you may have the option to appeal. However, you must meet certain specific requirements. 

What are the different types of visas in U. S.

Avoid misusing the different types of American visas, as it could have serious consequences. For more information regarding this, we invite you to check our blog “How long can we stay in the USA with a tourist visa”.

What Happens After An Appeal?

If your immigration appeal is successful, you could receive a favorable legal decision that will benefit your future. If you have lost your original case, it is important to remember that you still have legal options available. 

Our attorneys Carolina Curbelo and Sharon Lieberman will be able to assist you in evaluating the possible outcomes of your case and help you take appropriate action.

What Are The Reasons To Appeal An Immigration Case decision?

You can file an appeal if you do not agree with the decision made by the judge in your case. In this scenario, you have the option of requesting that a higher court review that determination.

By appealing, you submit relevant arguments and evidence that support why another court should make a different determination. 

All of this will be for the purpose of modifying or annulling the decision made by the judge who initially heard your case.

Can I Be Deported If My Immigration Case Is Denied?

Normally, deportation is not common since immigrants seek benefits such as residency or employment authorization when starting an immigration process. 

It is key to understand that the immigration agency is independent from the one in charge of deportations (ICE). 

When an immigration case is denied, it reverts to the previous status, putting the immigrant at risk of deportation.

What Is The Process To Appeal An Immigration Case When I Have A Deportation Order?

Generally, the process is as follows:

  1. You first receive a Notice to Appear.
  2. You will then have to appear before a judge at your Master Calendar Hearing.
  3. There, you could ask the immigration judge for relief from deportation.
  4. The judge will hear all the evidence and decide whether to grant relief or deport you.
  5. If the judge denies your request for immigration relief, you can appeal the judge’s decision within 30 days. 
  6. If you do this, you have the right to ask the courts to review your application, the judge’s decision and the council’s decision.

What Happens If My Immigration Appeal Is Denied?

If your deportation appeal is denied by the BIA or AAO, you may still have the opportunity to file another appeal if the original decision is appealable. 

In that case, you must go to the Federal Circuit Court of Appeals that has jurisdiction over the Deportation Court that issued the initial decision.

what happens after appealing and immigration case

How Many Times Can An Immigration Case Be Appealed?

Whether you can file an immigration appeal in a particular case depends on several factors. 

In most cases, it is possible to appeal to the higher court to the court that ruled on your case, although in exceptional situations it may be necessary to appeal to the Supreme Court.

Can I Reapply If My Immigration Case Was Denied?

If you want to appeal an immigration decision, you must demonstrate that the decision was incorrect and that you are not responsible. 

In the scenario where you are not eligible to appeal or lack solid grounds to do so, it may be necessary to start the process again. 

We encourage you to keep in mind that each immigration case is unique and may require a different approach. Therefore, we recommend that you carefully evaluate your situation before making any determination.

What Are The Chances Of Winning A Deportation Appeal?

Everything will depend on the present facts and the issues of the case. However, your chances of winning will be greater if you are represented by an immigration attorney.

What Are Motions To Reopen Or Reconsider?

A motion to reopen is a request filed with the USCIS office that issued an unfavorable decision for the purpose of requesting a review. 

This motion is based on new or changed facts supported by affidavits and other documentation. 

On the other hand, a motion to reconsider is a petition filed with the same office that issued an unfavorable decision. This requests that they review the decision due to an incorrect interpretation of the policy or law.

How To File A Motion To Reopen?

If you believe USCIS has made a mistake in your case, you have the option of filing a motion to reopen. It is important to do so within 90 days of receiving the unfavorable decision.

When filing this motion, you will need to provide evidence to support your claim that USCIS made a mistake. USCIS will review your case based on this evidence and issue a new decision accordingly.

What Is The Difference Between A Motion And An Appeal?

The main difference is that a motion is filed with the same USCIS office that issued the unfavorable decision.

On the other hand, an appeal involves requesting a review from higher authorities, such as the Board of Immigration Appeals.

Likewise, motions may be more appropriate in cases where the decision-making official is perceived to have overlooked some evidence. These may be based on new facts or a claim of incorrect application of the law.

Furthermore, with a motion, an internal reconsideration of the case is sought, while with an appeal an external review by higher authorities is sought.

What Is The Importance Of BIA Decisions?

The decisions published by the BIA establish national precedents. This implies that immigration judges are required to follow established rules. 

These decisions focus on solving:

  • Inconsistencies between judicial rulings in immigration cases, 
  • Address issues of great national relevance, and 
  • Correct possible errors made by judges when establishing the facts of a case or interpreting the law.

It should be noted that the BIA does not have authority over all matters, such as the deadline for a voluntary departure. Nor can it contradict decisions based on well-founded fear of returning to the country of origin. 

Therefore, its role is to review incorrect results in the application of the law and abuses of discretion by judges.

Can Humanitarian Cases Be Denied?

All types of immigration cases, including humanitarian cases, can be denied. In the case of asylum, if denied by USCIS, it is automatically referred to immigration court, with no option for appeal. 

Generally, this occurs because the foreigner does not provide enough evidence to support his or her case.

Should I Hire An Attorney To Appeal My Immigration Case? 

Laws in the United States allow individuals to file an appeal on their own. In this blog we already saw how to appeal an immigration case decision and everything necessary to do so was presented.

However, all appeals require strong legal arguments to validate your request. Therefore, our immigration law experts handle all types of appeals, deportation proceedings, and post-conviction relief.

If you are looking for quality advice, contact us today by calling, emailing, or scheduling an appointment with our office. The office is located in Ridgewood, New Jersey.