When it comes to immigration, the outcomes of all legal proceedings are crucial to a person’s life and future. With this in mind, if a person receives an unfavorable outcome of their case, it is possible for them to file an immigration appeal to challenge the decision made by the authorities and have a chance to reverse that adverse outcome.
At Jaskot Law, we believe that the dreams, aspirations, and rights of immigrants are important and deserve to be properly defended. Our team of experienced immigration attorneys are prepared to provide all of our clients with personalized attention for the favorable resolution of their case. So, continue reading this article to find out if you can win an immigration appeal case in the United States.
Understanding the immigration appeal, what is it, and what is it for?
The immigration appeal is a legal remedy that provides a route for those who have received unfavorable decisions in their immigration cases. Through it, one can request a review of the decision made by the U.S. authorities. This process could result in reconsideration and reversal of the decision.
An immigration appeal is a formal request for a higher authority to review a decision made by an immigration judge or the Bureau of Citizenship and Immigration Services (USCIS). The appeal can be used in several cases, such as deportation, denial of a visa application, permanent residence, among others.
Can you win an immigration appeal?
While immigration applications are complex processes that have little chance of success, it should be noted that some cases do succeed in obtaining favorable responses to their request for review. Thus, it should be remembered that each case is unique and that it is advisable to have the assistance of an experienced attorney to prepare the appeal documents.
How do I file an immigration appeal?
Filing an immigration appeal can be a complex process, and it is necessary to take into account all the requirements and necessary documents. By means of Form I-290B and within 30 calendar days of receiving notice of the decision, an individual may file an appeal.
You should note that Form I-290B is used for:
- File an appeal to the Administrative Appeals Office (AAO).
- Make a motion to the U.S. Citizenship and Immigration Services (USCIS) office that issued the case decision.
- Conduct certain appeals of denials of a Form I-17, Petition for Approval of School for Attendance of a Nonimmigrant Student.
However, this form may not be used to appeal the following cases:
- You wish to file a Form I-130 appeal. Alien Relative Petition appeals are appealed to BIA on Form EOIR-29. This form must be submitted to the office that made the decision on the petition.
- You wish to appeal a “no risk” determination issued by USCIS under the Adam Walsh Act. A review of the Form I-290B may be requested through a motion to reopen or reconsider.
- You wish to appeal the denial of your U.S. visa application by a consular officer. This process includes Forms DS-156, DS-156E, DS-156K, DS-117, DS-157, DS-230 or DS-260.
- You wish to appeal a Special Agricultural Worker Application or an Application for Legalization. This process is accomplished by filing Form I-694, Notice of Appeal of a Decision (under Sections 245A or 210 of the Immigration and Nationality Act).
Types of immigration appeals
There are different types of appeals that may be requested to review and reconsider an issued decision, and they are as follows:
- Appeals before the Board of Immigration Appeals (BIA). The BIA is the highest appellate court for immigration cases and reviews decisions made by immigration judges. A person who receives a notice of unfavorable decision may appeal within 30 days of the issuance of the decision to the BIA.
- Appeals to the U.S. Circuit Court of Appeals. This court is the last step, once all other available remedies have been exhausted, that can review a final removal decision. You may also review unfavorable decisions issued by BIA.
- Habeas corpus, APA and injunction actions are filed in the U.S. District Court.
Motion to reopen
In addition to appeals, there are motions to reopen and review an application. The motion to reopen asks the USCIS office that issued the decision to verify the decision. This motion is used to reconsider the individual’s eligibility at the time the original application was filed. In this case it is possible to present new evidence or facts.
In the case of a petition for reopening due to abandonment, the person must prove that a) the evidence requested was not relevant, b) the required evidence was submitted with the application, c) complied with the request for appearance or additional evidence in due time and form, or d) the request for appearance or evidence was not sent to the registered mailing address.
Motion to reconsider
There are also motions for reconsideration, whereby the office that issued the unfavorable decision is formally requested to review the decision for incorrect application of law or policy. When this motion is made, it must be shown that the decision was incorrect based on the evidence contained in the record.
How long does it take to resolve an immigration appeal?
The time it takes to resolve an immigration appeal varies depending on several factors such as the complexity of the case, the workload of the institution responsible for the review, and whether or not additional hearings are needed. The process usually takes several months.
However, the wait for an immigration appeal process can, in some cases, take as long as 8 to 12 months, or as long as a year. It should be noted that the waiting time has no correlation with the final decision of the process.
How long does a person have to file an appeal?
In the U.S. legal system, a person has a certain time limit to file an immigration appeal. This deadline is usually within 30 days of receiving notice of the decision. If the decision is received by mail, the person will have 33 calendar days to file an appeal.
Some proceedings have a more limited time to appeal, so you should always look at the notice of decision to see how many days you have to appeal. Also, keep in mind that there are no extensions to the appeal deadline. For the filing of Form I-209B, you can consult the official USCIS Direct Filing Addresses page for Form I-290B, Notice of Appeal or Motion.
How long does it take for a person to receive a response on appeal?
Generally, the AAO may take up to 180 days, from the time it receives the complete file, to issue its decision on the appellate review. However, some cases may take longer to resolve, either due to reasons external to the AAO, the complexity of the case, or the need for additional information.
What happens if the immigration appeal request is denied?
When an immigration appeal request is denied, it does not necessarily mean the end of your case. In most circumstances, applicants then have the option of filing a motion to review the decision issued by the Board of Immigration Appeals (BIA) before the Court of Appeals for the Federal Circuit.
Deciding which path to take after an immigration appeal has been denied can be complicated and will depend largely on the individual details of your case. That is why enlisting the help of an experienced immigration appeals attorney can be critical to understanding your options and deciding the best course of action. Contact the Jaskot Law team today to review your case.
Frequently Asked Questions
What is an immigration appeal?
An immigration appeal is a legal remedy available to those who have received unfavorable decisions in their immigration cases. Allows you to request a review of the decision made by the U.S. immigration authorities, with the possibility that the decision may be reconsidered and reversed.
How do I file an immigration appeal?
Filing an immigration appeal can be complex. Form I-290B must be completed and filed within 30 days of receipt of the decision notice. This form allows appeals to the Administrative Appeals Office (AAO), among others, but cannot be used to appeal certain types of decisions.
What are the different types of immigration appeals?
There are several types of immigration appeals, including appeals to the Board of Immigration Appeals (BIA), appeals to the U.S. Circuit Court of Appeals, and habeas corpus, APA and injunction actions filed in the U.S. District Court.
How long does it take to resolve an immigration appeal?
The time it takes to resolve an immigration appeal varies depending on several factors. However, in general, it can take several months, and in some cases, the wait can be as long as 8 to 12 months or even more than a year.
What happens if an immigration appeal is denied?
If an immigration appeal is denied, there are still options available. Applicants may generally file a motion for review of the decision issued by the Board of Immigration Appeals (BIA) with the Court of Appeals for the Federal Circuit.
