Making an immigration appeal is a serious step that should not be taken lightly. This guide will help you understand the process and what to expect, as well as explain what your immigration attorney will do for you from start to finish.
Immigration Appeals: The Basics
An immigration appeal is when you ask a higher authority to look at a decision made about your immigration status that you don’t agree with. These requests usually go through U.S. Citizenship and Immigration Services (USCIS) or the Board of Immigration Appeals (BIA). Both USCIS and the BIA have jurisdiction over immigration cases, but each has jurisdiction over different types.
Immigration Appeals Through the Administrative Appeals Office of USCIS
The Administrative Appeals Office (AAO) is part of USCIS and has the job of reviewing certain immigration decisions made by USCIS officers. You can’t appeal every USCIS decision to the AAO, but you may be able to if you’ve been denied:
- An immigrant visa
- A nonimmigrant visa
- Adjustment of status to permanent resident
- Cancellation of removal for certain permanent residents or nonpermanent residents
- A grant of asylum or refugee status
- An application for naturalization
- Certain other benefits
You can’t appeal a USCIS decision to the AAO if you’ve been denied:
- Voluntary departure
- Withdrawal of your application
- A motion to reopen or reconsider (except in limited circumstances)
- An order of removal issued by an immigration judge
- A decision made by the BIA
To appeal a USCIS decision to the AAO, you must file what’s called a Notice of Appeal or a Motion to Reconsider with the office that made the original decision. You must do this within 30 days of the date you received the decision. If you file a Notice of Appeal, USCIS will send your case to the AAO. If you file a Motion to Reconsider, USCIS will review your case itself. Either way, an immigration officer who didn’t work on your original case will review your appeal.
For most people, the best option is to work with an immigration attorney. That’s because these time-sensitive appeals are very important – and one mistake could cost you your chance to get the decision changed.
When you have immigration questions, you need a legal team you can count on.
What Happens After You File an Appeal to the AAO?
After you file your Notice of Appeal or Motion to Reconsider, USCIS will send you a notice telling you that it received your request and what will happen next. If you filed a Notice of Appeal, the AAO will review your case and issue a decision. This can take several months.
If USCIS denies your Motion to Reconsider, you can file an appeal with the AAO. But if USCIS granted your Motion to Reconsider, it will send you a new decision. If you’re still not happy with that decision, you can file another Motion to Reconsider or an appeal with the AAO.
Immigration Appeals Through the BIA
The BIA is part of the U.S. Department of Justice and is the highest administrative body for interpreting and applying immigration laws. The BIA hears appeals from immigration judges and USCIS.
You can’t appeal a USCIS decision to the BIA if you’ve been denied:
- An immigrant visa
- A nonimmigrant visa
- Adjustment of status to permanent resident
- Cancellation of removal for certain permanent residents or nonpermanent residents
- A grant of asylum or refugee status
- An application for naturalization
- Certain other benefits
If a BIA appeal is necessary in your case, your attorney will fill out and file the appropriate paperwork.
Can You Appeal Removal Over Criminal Convictions?
If you’ve been ordered removed from the United States based on a criminal conviction, you might be able to appeal that decision. But you’ll need to file your appeal with a federal court instead of with USCIS or the BIA.
You can’t appeal a removal order if you’ve been convicted of an aggravated felony. This is a felony crime that’s been specifically designated as an aggravated felony by immigration law. If you’re not sure whether your conviction is an aggravated felony, you should talk to an immigration attorney.
You also can’t appeal a removal order if you’ve been convicted of certain serious crimes, including:
- Murder
- Rape
- Drug trafficking
If you have a criminal conviction and you’re not sure whether you can appeal your removal order, talk to an immigration attorney.
How Can an Immigration Attorney Help?
Appealing a USCIS or ICE decision is a complex process. And if you don’t have an immigration attorney, you might not know where to start. An immigration attorney can help you:
- Determine whether you have grounds for an appeal
- File the necessary paperwork
- Represent you in court
- Prepare you for your hearing
Get The Immigration Help You Deserve And Request A Consultation Today.
What Are Writs of Mandamus?
A writ of mandamus is a court order telling a government agency or official to do something – or to stop doing something. For example, if USCIS denies your request for asylum and you think that decision was wrong, you might file a writ of mandamus asking a federal court to review the decision.
You can’t file a writ of mandamus if you’re asking the court to review a decision made by an immigration judge or the BIA. That’s because there’s already a process in place for appealing those decisions.
You might be able to file a writ of mandamus if:
- USCIS is taking too long to make a decision on your case
- USCIS denies your request for asylum without giving you a hearing
- You think ICE is detaining you unlawfully
If you want to file a writ of mandamus, you’ll need to file a petition with a federal court; many people choose to work with an attorney for this. Your attorney will need to do it quickly – there’s only a short window of time in which you can take this kind of action.
It’s important to note that filing a writ of mandamus doesn’t guarantee that the court will rule in your favor. And even if the court does rule in your favor, USCIS or ICE might still not take the action you want them to take.
What is an APA Action?
The Administrative Procedures Act (APA) is a law that establishes the process for federal agencies to develop, issue, and enforce regulations. The APA also sets out the process for people to challenge those regulations in court.
You might be able to file an APA action if:
- USCIS or ICE makes a decision that you think is arbitrary or capricious
- USCIS or ICE fails to follow its own regulations
If you want to file an APA action, you’ll need to file a petition with a federal court. And you’ll need to do it quickly – you don’t typically have much time.
What is a Habeas Corpus Action?
A habeas corpus action is a civil lawsuit challenging your detention. You can file a habeas corpus action if you think ICE is detaining you unlawfully.
Your attorney will need to file your habeas corpus action in federal court.
How Are Motions Different From Appeals?
Motions are requests that you file with the court, asking the court to take a specific action. For example, you might file a motion asking the court for more time to file an appeal.
Appeals are requests that you file with the court, asking the court to review a decision that’s been made in your case.
For example, if you lose your asylum case, you might file an appeal with the BIA. The BIA will review the decision made by the immigration judge in your case, and decide whether to uphold the decision or send the case back to the immigration judge for further proceedings.
Motions are typically less formal than appeals, and they don’t necessarily have to be in writing. But appeals always have to be in writing, and they have to follow a specific format.
Do You Need to Talk to an Attorney About Appealing an Unfavorable Immigration Decision?
If you’ve received an unfavorable immigration decision, we may be able to help you. Call our office now to schedule your consultation with an experienced professional who can give you the guidance you need.
Request A Consultation Today
U.S. immigration law can be incredibly complex – and for most people, the best course of action is to work with an immigration attorney who understands the process and federal immigration laws.
