Each year, I consult with hundreds of individuals who have been ordered to leave the US by Immigration Judges. In the vast majority of these cases, the person had applied for some form of relief from removal, such as asylum, and the Immigration Judge denied the claim and either granted the person voluntary departure or simply ordered deportation. The Immigration & Nationality ACT (INA) sets forth procedural rules applicable to appealing decisions of Immigration Judges through the US Department of Justice; and appealing those decisions to the US Courts of Appeal. In most cases, these appeals constitute a person’s “last chance” to fight their case and stay in the US, which is why retaining counsel capable of presenting the best factual analysis and legal argument is paramount.
Of course, receiving a grant of asylum or other relief from the Immigration Judge is the optimum result in any Immigration Court case. Once you have to appeal a case, it means that you have lost your case and must persuade a higher authority to change the result. Losing in Immigration Court, however, is only “round one” and there are one or two more rounds to be fought before a denial of asylum or other relief becomes “final” and a person must actually leave the US.
When an Immigration Judge denies a Respondent’s case, the Respondent has 30 days to file a Notice of Appeal to the Board of Immigration Appeals (BIA). The BIA and the Immigration Courts comprise the two levels of the Executive Office for Immigration Review (EOIR). The EOIR is an agency under the US Department of Justice and operates independently of the USCIS and USICE, which are under the US Department of Homeland Security. Generally, the filing of a BIA appeal will automatically “stay” or stop execution of a removal order pending the BIA’s review of the case, but in some cases will not. The attorney responsible for filing the appeal must be aware that a Motion for Stay must be filed with the appeal in cases where there is no automatic stay.
Shortly after the BIA receives the notice of appeal, the BIA issues a “Briefing Schedule” and transcript of the proceedings from the immigration court. The transcript will contain a written record of all verbal statements that were made during the immigration court hearings as well as a complete statement of the Immigration Judge’s decision. The attorney’s job on appeal is to identify any factual misstatements and erroneous legal conclusions the Immigration Judge may have made in her decision, and find support in case law and the record for all arguments. Successfully reversing an order of the Immigration Judge at the BIA requires a careful review of the transcript and broad knowledge of controlling “precedent” decisions, which will help guide the BIA’s analysis of the case.
The attorney representing the Respondent must file a written brief to the BIA, with a detailed statement of the facts of the case and legal argument explaining why the Immigration Judge’s decision was wrong and should be reversed. The Attorney for the USICE then may file a responsive brief, presenting arguments in favor of the Immigration Judge’s decision. Decisions from the BIA are generally rendered in approximately 12 months, however, this time frame can vary depending on the complexity of the issues and whether the BIA orders oral argument on the case.
Assuming the BIA agrees with the Immigration Judge and issues an order dismissing the appeal, the Respondent may seek review of the BIA’s decision at the US Circuit Court of Appeal. In California, such appeals are filed with the 9th Circuit. Rules governing the 9th Circuit’s jurisdiction over, or authority to review, certain matters are very complicated. Generally, the Ninth Circuit may review asylum denials and legal issues, but not matters that are to be decided solely within the discretion of the Immigration Judge or BIA. Issues involving “due process,” or basic fairness of the proceedings, however, are always subject to review and a Respondent may contest the Immigration Judge’s conduct of the proceedings on this basis, no matter what relief was sought in the immigration court.
Unfortunately, the Circuit Court is usually the “court of last resort” for Immigration Cases. Since the US Supreme Court only reviews cases by “certification,” only the most Nationally significant immigration cases ever make it there. Making cogent and persuasive arguments at the BIA is extremely important, because the Circuit Court will only review arguments raised at the BIA and the Circuit Court is most likely the “final round” in any immigration fight!