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How do I File an Immigration Appeal?

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  • Written By: Eric Misener
  • Edited By: A. Joseph
  • Last Modified Date: 29 November 2016
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The procedure for filing an immigration appeal will vary from country to country and sometimes within one country, depending upon the type of immigration case you are appealing. In the United States, you generally will have to make an immigration appeal either to the Administrative Appeals Office (AAO), the Board of Immigration Appeals (BIA) or, if those avenues fail, to a federal court. In other countries, the process will be somewhat different.

In the U.S., the immigration system generally is part of the executive branch of government, not the judicial branch. This means that the proceedings are administrative and follow their own set of regulations, which might or might not be similar to the rules in place in true court proceedings. The AAO and BIA are executive entities of this type.

The AAO generally handles immigration appeals from decisions made on petitions and applications at the various U.S. Citizenship and Immigration Services field offices around the country. When a denial is issued, you will receive a denial notice that states the reasons for the denial and the process for filing an appeal. Normally, in these cases, your immigration appeal must be filed — within 30 days of the decision date — on a specific form, accompanied by the correct filing fee, with the office that made the decision. Your appeal will then be forwarded to the AAO for consideration and disposition.

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Generally, the BIA handles immigration appeals from cases that have been in the immigration court system, usually involving removal proceedings. The immigration court system is also part of the executive branch and is governed by its own set of regulations. You can make an appeal of an immigration judge’s decision, or it can be made by the government.

The immigration appeal is commenced by filing a notice of appeal, along with the appropriate filing fee, directly with the BIA, within 30 days of the immigration judge’s decision. The BIA will then issue a schedule for each party to file a brief on the case. You can request oral argument in front of the BIA, but almost all cases are decided based on the record of proceedings and the briefs alone.

In very specific circumstances, you can appeal a BIA decision or AAO decision to a federal court. This can be done only in cases where the federal court has not been stripped of jurisdiction over that type of decision by a statute passed by the U.S. Congress. It usually is best to have a licensed immigration attorney review the case before you go through the time and expense of filing a federal court appeal.

There are two other actions that, while technically not appeals, are similar to filing an immigration appeal. One is a motion to reopen, which sets out new facts that were unavailable at the time of the decision and would change the outcome. The other is a motion to reconsider, and it is filed when there has been a misapplication of federal law or regulation that makes the denial of an immigration benefit incorrect. Both of these motions must be filed with the office that rendered the decision and within 30 days of the decision date.

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