The legal action known as an immigration appeal process is a request that is filed with the immigration authority of the United States. Depending on the case, it can be presented to the Board of Immigration Appeals (BIA). Also to the Office of Administrative Appeals (AAO), to review an unfavorable decision.
Remember that if you need assistance or help to appeal a decision of the Board of Immigration Appeals, Lluis Law immigration attorneys can help you with anything you need.
We are experts in immigration appeal process with more than 40 years experience in the Los Angeles area.
The AAO is an office dependent on the Citizenship and Immigration Service (USCIS), while the BIA depends on the Department of Justice. For any of these two agencies, you can file an Immigration appeal after the immigrant receives a notice of denial of an immigration petition, issued by an immigration judge.
What is an immigration appeal process?
It is a request submitted to the immigration authority (BIA or AAO), to review an unfavorable decision. To do this, it is advisable to have the guidance or representation of a good immigration lawyer.
Generally, when an immigration judge issues an unfavorable decision, the institution that deals with the appeal is the Board of Immigration Appeals. Sometimes you also know about decisions of officials of the United States Department of Homeland Security (DHS). Instead, if the decision was made by a USCIS officer, the agency to appeal is the AAO.
Appealing to the BIA is intended to show that the immigration judge made a mistake in interpreting the law. Consequently, the consideration of all the evidence and arguments presented in order to avoid deportation of the immigrant is sought.
Decisions that can be appealed to the BIA
For the Board of Immigration Appeals (BIA), the following denied decisions on immigration matters may be appealed:
- Deportation orders;
In our article “ Cancellation of removal ” you will find extensive information on the subject.
- Denial of asylum;
The denial of asylum is one of the many topics we reviewed in our section dedicated to asylum in the United States.
- Withholding of removal;
- Foreigners excluded when applying for admission in the United States;
- Motions to reopen or reconsider previous decisions;
- Petitions of relatives;
You can read extensive information on the page dedicated to “Family-based immigration.”
- Waivers of inadmissibility;
- Denial of probation or bail and;
Find out in the following link what is Advance Parole everything you need to know about the application for advance parole.
- Certain fines and administrative penalties applied by DHS.
The headquarters of the Board of Immigration Appeals (BIA) are located in Falls Church, Virginia. To request an appeal, the applicant does not need to appear personally as the appeal is submitted in writing.
In no way, the Board of Immigration Appeals knows about decisions that are not issued by an immigration judge. As explained above, the institution dealing with the unfavorable decisions of USCIS on immigration matters is the AAO. The BIA also has no jurisdiction and cannot review denials of adjustment status requests issued by DHS.
What is the time frame for an immigration appeal process?
After receiving notice from the court, the legal period for filing an appeal is 30 natural days, (including Saturdays, Sundays and legal holidays). A Los Angeles immigration lawyer can help you with the procedure to follow to appeal an unfavorable decision. For this he must have proven experience and extensive knowledge of the Immigration law.
How long does an immigration appeal process take in court?
The appeal must generally be filed within 30 days from the date of the decision. Not the date the immigrant received the court decision. It could even be a shorter period, if the approval of a petition was revoked. In that case the deadline is 15 days.
How long does the response to an appeal take?
Responses to appeals filed with the Board of Immigration Appeals may take between 6 months and one year. It all depends on the complexity of the case or the number of accumulated applications the office has. However, while BIA knows and decides on the case, the immigrant can obtain a residence permit in the US.
It is always necessary to consult with an immigration lawyer to perform the procedure correctly. The appeal seeks that the Department of Homeland Security (DHS), suspends the execution of the removal or deportation order.
In the event that the Board of Immigration Appeals rejects the appeal, the immigrant may request a new appeal before the United States Court of Appeals. For the state of California, BIA decisions must be appealed to the Ninth Circuit Court of Appeals. At any of its two locations, in Los Angeles or in San Francisco.
How much does an immigration appeal process cost?
For the Board of Immigration Appeals, the filing fee is $ 110. All appeal requests to the BIA must be accompanied by a check or money order for this exact amount or, if applicable, a justified exemption request.
However, for bail appeals or asylum applications there is no set fee. If the applicant cannot pay the fee, he must request a fee exemption for which he will need to prove that he has financial difficulties. On the EOIR-26th Form, BIA Appeal Fee Exemption Request, which is sent along with the Notice of Appeal, you must indicate your income and expenses.
Checks / money orders should be sent to the United States Department of Justice. The check must be duly accredited because otherwise the request will be rejected. The money order does not have this inconvenience.
Instead, the cost of the appeal fee to the USCIS Office of Administrative Appeals (AAO) is $ 675. It can also be paid through a personal check, a cashier’s check or a money order. You can even pay by credit card if you use Form G-1450, Credit Card Transaction Authorization. If it is a check, it must be issued to the US Department of Homeland Security.
How are the decisions of an immigration judge appealed?
Decisions on immigration matters taken by the immigration judge can be appealed by both the immigrant and the government. When the judge issues an unfavorable decision during the sentencing appeal hearing, the judge asks the immigrant or his lawyer if they wish to appeal the decision.
If the immigrant responds that he does not want to appeal immediately, the deportation process can be initiated being that the case. If you answer that you want to appeal then you have 30 natural days to file the appeal or you can also respond to the judge who reserves your right to appeal. In this case you should discuss with the immigration lawyer when to start the procedure.
Although the immigrant has the right to represent himself, if he does not have enough legal knowledge and experience, it is not advisable. The intricate appeal process of a judicial decision can overwhelm the applicant. In addition, the lawyer saves you time in administrative proceedings, such as the delivery of the Notice of Appeal, among other documents.
How is the BIA appeal procedure?
The BIA knows and decides on appeals by reviewing the documents that are presented by the immigrant or his lawyer. That is why it is so important to have an experienced legal help to avoid making mistakes while filling out the forms and be able to support the allegations that will be presented.
When, exceptionally and at the request of the interested party, the BIA agrees to hear oral arguments, the act takes place at its headquarters located in Virginia.
Appealing an USCIS decision in the Office of Administrative Appeals (AAO)
This office considers a large number of immigration applications and petitions that are denied, among others. Appeals filed with the AAO must be made within 30 days of the decision notified by USCIS. The response time for an appeal to AAO can take around 6 months or more.
However for emergencies or any other difficulty, expedited appeals can be considered in a much shorter time. In general, the AAO is responsible for reviewing about 50 decisions of the United States Citizenship and Immigration Service regarding immigration applications and petitions. Amongst them:
- Visa requests (immigrants and nonimmigrants) based on employment.
- Visa requests from EB-5 immigrant investors.
- Temporary Protected Status (TPS) applications.
- K-1 fiance visa petitions.
- Inadmissibility waiver requests.
- Requests for readmission permission in the US after a removal or deportation process.
- Some special immigrant visa requests.
- Orphan petitions.
- T visa applications (trafficking in persons) and related to application for adjustment of status.
- U visa petitions (victims of criminal activity) and related to application for adjustment of status.
- Applications related to naturalization and citizenship certificates.
- Application to preserve the residence for naturalization purposes.
- Matters related to the breach of security bond determined by the Immigration and Customs Enforcement Service (ICE).
The AAO has no competence to hear about decisions made by immigration courts (for example, deportation orders). Nor those taken by the Department of Homeland Security (DHS). These decisions may be appealed in another instance such as the Board of Immigration Appeals (BIA).
Filing an appeal with the AAO
By denying a request, USCIS explains what to do to file an appeal or reconsideration of the case in the same notification letter sent to the applicant. When the decision is appealable, the institution where the immigrant take actions is mentioned.
Appeals are mostly filed through Form I-290B of the Immigration and Customs Enforcement Service (ICE). Certain immigration applications and petitions, however, require different processes and requirements to appeal. In such a case, the immigrant should read the USCIS letter very well and, if necessary, consult an expert immigration lawyer.
To appeal a decision to the AAO, the applicant must promptly report errors of law or indicate the erroneous procedures of the USCIS officer. Such assessments must be presented by means of a written declaration attached to Form I-290B or, through a legal document.
The applicant or his immigration lawyer will state in the declaration all the necessary legal arguments that will be considered by the AAO in the appeal. The same arguments presented to USCIS are also valid.
Deadline to file an immigration appeal with the AAO
Appeals to the AAO are generally filed within 30 natural days, after USCIS personally notified the decision. It can also be within 33 natural days if the notification was made by mail. Calendar or natural days include Saturdays, Sundays and legal holidays. However, when the last day of the presentation period is a non-business day (Saturday, Sunday or holiday), one more day is available.
For some requests that are denied by USCIS, only an appeal period of 15 days is allowed. Therefore, the immigrant should seek the help of a good immigration lawyer so as not to make mistakes. It is always necessary to carefully review the available time indicated in the USCIS letter.
Can I represent myself in an immigration appeal process for the AAO?
If you can. Of course, the immigrant must have the necessary legal knowledge to defend himself. In addition, pay close attention to the rules that are established for appeal procedures before the AAO. Law students and others with some legal knowledge, could perhaps perform this legal management.
Otherwise, it is better to have the support and legal representation of a good immigration lawyer in Los Angeles. An experienced lawyer, who takes charge of the process without fear of making mistakes that are detrimental to the appeal.
Procedure to appeal to the AAO
To file an appeal with the Office of Administrative Appeals (AAO), the process is divided into two stages:
- The initial field review conducted by the USCIS office that issued the unfavorable decision evaluates the appeal and determines whether it is appropriate to take action in favor of the immigrant. This procedure can take up to 45 days.
- Appeal review before the AAO if necessary. When the USCIS office does not take measures favorable to the immigrant, the case is sent to the AAO office on appeal. The immigrant is notified by a Transfer Notice to the AAO.
The AAO reviews the appeal and issues a favorable or unfavorable decision to the immigrant. For the review of the appeal, the Office of Administrative Appeals does not require the presence of the applicant. Usually, the review is based only on the documents presented.
Only in certain cases, the AAO admits the oral presentation of an argument. These exceptions are as follows:
- This is a case considered particularly very important.
- The AAO determines that there is indeed a benefit in presenting a complementary argument.
For the presentation of the oral argument, the request must be made in writing, clearly explaining its need. If the AAO decides to approve the request, the applicant is notified and informed about the place, date, time and conditions of presentation of the oral argument.
What to do when the AAO denies the appeal?
If this happens, the foreigner has the possibility of presenting a cancellation of removal or motion to reconsider the decision. This must be based on the presentation of documentary evidence on new facts. Instead, the motion to reconsider is based on arguments about the incorrect application of a law or policy.
If after performing all legal proceedings in the AAO, the immigrant receives an unfavorable decision, he can no longer appeal to another instance. However, certain unfavorable decisions of USCIS have been appealed to a federal court of appeals, but can be counted as exceptions.
In the state of California, appeals are filed in the United States Court of Appeals for the Ninth Circuit. The cases that this court knows include, among others:
- Unexcused delays of USCIS to decide on an application or petition;
- When USCIS denies a naturalization request.
What is the I-290B form?
Form I-290B, Notice of Appeal or Motion is used to file the appeal with the Office of Administrative Appeals (AAO). In cases where:
- A decision of USCIS is appealed to the Office of Administrative Appeals (AAO).
- The motion is filed with the USCIS office that issued the decision on the case, be it the AAO, the local office or the service center.
The immigration motion or Motion to reopen the case (MTR) serves to request the Court to cancel a deportation order and reopen it. If the Court allows it, then new evidence can be presented to help the immigrant. You can also request a new form of relief or offer the immigrant another chance to defend themselves.
For more information about the immigration appeal process or about any case related to immigration issues for you or a family member, Lluis Law immigration attorneys are at your disposal. We will help you clear all your doubts. We have experience in representing immigrants in the Los Angeles area and Southern California.