The Attorneys at Law Offices of Shilpa Malik PLLC will file and prosecute on your behalf, if you are an alien who has received an order of deportation from an immigration judge, any direct “appeal” before the Board of Immigration Appeals (the “BIA”). Included among these are appeals from a finding that the non-citizen is deportable as well as orders denying applications for relief from deportation, exclusion or removal, such as denials of applications for Suspension of Deportation, Cancellation of Removal, Asylum, Withholding and Convention Against Torture (CAT), or denials of applications for waivers of deportability or inadmissibility under sections 212(c), 212(h) or 212(i) among others.
What is an Appeal?
An appeal from an order of an Immigration Judge ordering the deportation (or removal, or exclusion) of an alien consists of a reviewing process by the Administrative Appeals Office (AAO) otherwise known as the BIA (Board of Immigration Appeals) where the appealing alien gets the opportunity to explain to the BIA why the decision of the Immigration Judge is incorrect.
Please note that it is the burden of the appealing party (the alien) to convince the BIA that indeed, the immigration judge’s decision is incorrect and should be reversed and/or vacated. And if the alien does not file a “timely” appeal (meaning an appeal that it is filed within the 30 days time limit from the date of the judge’s decision), then that order becomes final and ICE agents can affect the deportation of the alien after the time for filing an appeal expired.
How to File
Under most circumstances, petitioners need to file an I-290B, which is called the Notice of Appeal or Motion. However, there are some situations that call for different means such as:
- If the appeal is made for a naturalization application or the N-400 form. These appeals are done using the N-336 form, the Request for a Hearing on a Decision in Naturalization Proceedings.
- If the appeal is made for a decision on a special immigrant worker, applications for legalization, or the termination of temporary resident status, then you would use the I-694 form since these situations fall under sections 210 and 245A in the Immigration and Nationality Act.
- If the appeal is made for a family-based green card through the I-130 form, then you would use the EOIP-29 called the Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer.
It can be difficult to know which form is appropriate for which scenario. Fortunately, your rejection or denial notice (or other notice of an unfavorable decision) will likely include the form that you need to use.
Motions to Reopen/Reconsider Orders of Immigration Judges or Orders of the Board of Immigration Appeals
Our attorneys can also file and prosecute any “motion to reopen” or “motion to reconsider” any adverse decision made by an Immigration Judge, or by the BIA where the facts and/or the law support filing such a motion. Although there are time and numerical limitations governing when such motions to reopen or reconsider can be filed, there are also some exceptions that have been carved by the federal courts in appropriate cases. It is extremely important to timely file a motion to reopen or reconsider before the Immigration Judge or the BIA to avoid a denial of the motion based solely on the time and numerical limitations.
Receiving an order for removal or deportation can be devastating, especially if you have family that would be left behind or even uprooted by this decision. Fortunately, there are some situations in which you can appeal this. Not all orders for removal or deportation can be appealed, as this is often dependent on the reason for the order. In any case, deportation appeals are tricky situations and should not be attempted without an immigration attorney.
There are several reasons for why you might receive a removal or deportation order including committing a crime, overstaying a visa or otherwise violating your status, and entering the U.S. illegally. Committing a crime in the U.S. may be open to a deportation appeal if the evaluating judge can be convinced of the person’s innocence. Violating your status can sometimes be appealed in cases where leaving the country would have a substantial negative effect on family members who are U.S. citizens.
For those that entered the U.S. illegally either voluntarily or involuntarily (which is sometimes covered in the Deferred Action for Childhood Arrivals or DACA), you may be able to request a Waiver of Removal instead of having to appeal your deportation. This is used to pardon the immigrant’s illegal stay in the U.S. You may also file for a cancellation of removal if you have been in the U.S. for a minimum of ten years and your removal would be detrimental to U.S. citizen family members.
What is a Motion?
A motion is an application in writing submitted to an Immigration Judge or the BIA requesting a specific order and containing argument in support of the reasons why the motion should be granted. If an alien wishes to file a motion to reopen or reconsider his or her deportation or removal or exclusion proceedings, the motion must comply with numerous, complex procedural and substantive rules, just so that it can be considered by the Immigration Judge or the BIA, and then, it must also convince the Immigration Judge or the BIA that the specific order requested in the motion merits that it be granted.
Motion to Reopen
A motion to reopen a case is used in a situation where you believe that the evaluating officer’s decision may be right, but new evidence has come to light that might change his or her decision if the case were to be reopened with this new evidence. This should only be pursued if you and your attorney are confident that this new evidence is substantial enough to warrant a reopening of the case. Make sure that any new information or facts is thoroughly supported with documents and affidavits if possible. A motion to reopen is also often used if evidence was requested but did not make it to the evaluating offer for one reason or another (e.g. wrong address)
Motion to Reconsider
On the other hand, if you believe that all of the correct evidence had been submitted and you were eligible for a favorable decision, and your attorney agrees, then you may be able to successfully a file a motion to reconsider. This is an appeal to the evaluation officer to reconsider your case from a new legal standpoint. Officially, the USCIS states this as a review of the decision based on an incorrect application of law or policy. The important thing here is to be able to argue your case from that legal standpoint, which is something that should only be entrusted to an attorney.
Immigration Appeals and Motions FAQ
Here are some frequently asked questions that may help you navigate the appeals and motions process:
Are there time limitations?
An alien wishing to file a “motion to reconsider” must do so within the first 30 days after the original order was issued. Likewise, an alien wishing to file a “motion to reopen” must file the motion within the first 90 days after the original order was issued. (Some exceptions apply).
Are there numerical limitations?
An alien is allowed to file only one (1) motion after the Immigration Judge or BIA’s order has become “final”. (Some exceptions apply).
How much do appeals and motions cost to file?
Filing an appeal or motion usually requires the petitioner to use the I-290B Notice of Appeal or Motion form. This form costs $675 to file. This can be paid by a check, money order, or cashier’s check. You can also pay by credit card if you are at a USCIS Lockbox facility.
Can this fee be waived?
Yes. There is a way to avoid having to pay this fee if it is a necessity. The USCIS will sometimes waive the fee if you can demonstrate an inability to pay it. Speak with your immigration attorney to learn more about this.
Can I get a refund?
Unfortunately, barring a major mistake on the part of the USCIS, a refund will not be made available. If the appeal or motion does not end favorably for your case, the fee will not be refunded.
Can any decision be appealed?
Unfortunately, no. Not all unfavorable decisions are open to appeal. For example, decisions regarding the H-1B visa fall under this category, which will be denoted in the denial or rejection notice.
How long do appeals and motions take to process?
For appeals, the USCIS states that “the AAO strives to complete its appellate review within 180 days from the time it receives a case file after the initial review.” However, in our experience, it can sometimes take longer than 180 days to process. It is all dependent on how busy the AAO office is as well as the complexity of your case.
For motions, the USCIS states that it aims to process them within 90 days. It also says that any motions reviewed by the AAO may take up to 180 days or more. If you have not yet gotten a response after these times, you can follow up by contacting the USCIS Contact Center.
How will I be told about the appeal or motion decision?
When a decision has been reached about your immigration appeal or decision, the Administrative Appeals Team (AAT) will send you a notice of approval or denial. In student cases, this notice will likely come from the Student and Exchange Visitor Program (SEVP). If you have an immigration attorney that is representing you for your case, the notice may be sent to him or her.
Can the beneficiary file an appeal or motion?
For the most part, the only person or entity that can file a motion or an appeal is the petitioner. The beneficiary is precluded from filing except for a few scenarios. First, you can file as the beneficiary if you are also the petitioner, which can be the case for some self-petitioning visas like the E-2 visa or EB-1A green card.
The second situation is if your employer filed an I-140 and then your petition was revoked. This can only be done if your I-140 was approved and you have already submitted an I-485 form to adjust your status. You must also have requested job portability and that request must have been approved by the USCIS.
How Our Immigration Attorneys Can Help
Appeals and motions are very delicate legal proceedings that will likely be unsuccessful without the help of a seasoned expert. You need to have a strong knowledge of not only your case, but also immigration law and how it is applied to your case in both theory and precedent. The best way to ensure the best chances for approval is to have an immigration attorney handle your case from the moment you receive an unfavorable decision.
Here at Immi-USA, our visa and green card lawyers have helped countless clients work through the appeals and motions process. We can help you file your Notice of Appeal, Motion to Reopen or Reconsider before the Office of the Immigration Judge, or the Board of Immigration Appeals, no matter where you live in the United States.
We can also help you with your Petition for Judicial Review before any of the United States Courts of Appeal and/or Judicial Action in District Court no matter where you live in the United States. We can help you along every step of the USCIS motions or appeals case. To get in touch with one of our immigration attorneys, you can fill out our contact form and schedule your consultation with our office today.