Should I Appeal A Negative Immigration Court/USCIS Decision?

Have you been told that it’s time to appeal? Do you have an immigration decision from the Immigration Court or perhaps from USCIS that is negative? Or perhaps it’s not completely favorable to you and you’re trying to decide what to do next? Is it worth the time? Is it worth the effort? I’m Hillary Walsh in immigration lawyer in Phoenix Arizona. My Law Firm is New Frontier immigration Law. I’m renowned in the field for being a immigration appeal´s guru. I teach other immigration lawyers how to do their appeals and I want to give you 5 minutes today to tell you a little bit about the process so you can know what to do if you’re in the situation or you might where you might need to file an immigration appeal. 

 

What Happens After a Negative Decision?

First, where do things go? We’ll kind of walk through this so you’re if you’re in the Immigration Court and you got an adverse a negative decision, a decision that’s not good for you and in some way maybe it’s a small way maybe it’s a big way. Who do you appeal to?  You send any appeal from the Immigration Court directly to the board of immigration appeals in almost every single instance. 

So they’re going to be some that won’t go directly to the DIA but for our purposes today you’re in Immigration Court. Where do you file the appeal? You go to the board of immigration appeals. Now, when you’re at the board of immigration Appeals who do you appeal from there? You go see your circuit court. The circuit court is going to be a federal court over a series of states in your area. Phoenix, Arizona is in the 9th Circuit Court of Appeals which basically covers the West Coast and Hawaii. Different circuits are going to be all over the US. You will appeal to the specific circuit court.

 

Your Odds at the Board of Immigration Appeals

Before I move on to the next stop. Let’s talk about what your odds are at the board of immigration appeals and I’m going to be really honest with you. These days it has become increasingly harder for advocates and immigrants to win at the board of immigration appeals. If you’re going to the board of immigration appeals right now in 2020 or even 2021, probably 2022 you’re going up against a very difficult journey, it’s definitely not impossible. This year alone we’ve won several Board of immigration appeals already and it’s only the end of June. So I don’t want to tell you it’s impossible I just want to give you the information so you’ll know what kind of probabilities you’re looking at and going forward. And I will say the most important piece ordinarily is in hiring an advocate who knows what they’re doing at the board of immigration appeals. Last December I went and I was one of the three people from the whole year to go argue in person at the board of immigration appeals and this allowed me to have a really amazing first hand-in-the-room-live-in-the-flesh experience with Board of immigration appeals judges to see what is that really makes them tick. What is the environment that they’re making their decision in? Who is on the bench and what is it that they’re really latching on to that’s important to them and how do they engage with each other? 

Only three people went and argued the whole year at the Board of Immigration Appeals.  This by contrast compared to dozens and dozens of people all the time, every month in the 9th circuit. So its a huge difference and this has allowed me to really be able to dive deep and become an even better advocate for my clients when we do need to go up against the very difficult battle of appealing to the board of immigration Appeals. 

Once we get to the Circuit Court I believe that’s where a lot of cases are won so when I say that it’s time for you to go the distance and we have to start the Immigration Court and we have to see all the way to the Circuit Court it’s for good reason. This is where we get a lot of Victories, at the circuit court level. 

Duration of an Appeals Process

If I´ve lost that Immigration Court and I’m trying to win, how long do I have to run this appeals race for? So let’s talk about the timeline. I’m going to put these into different buckets. One is going to be the detained and one is going to be the not detained bucket.

If You Are Detained

And the appeals process usually takes about 4 months plus or minus when you’re appealing  detained to the Board of Immigration Appeals. They really prioritize the detained cases because obviously the person is confined and not only does it cost the government  money to keep that person detained, if they’re wrongly detained the bigger problem is that it’s violating their due process and their rights. So we don’t want people to be detained wrongly especially if for a really long time. I have seen cases take six months though. So four months is a good average and a good guess but it’s also taking upwards to six months for other cases. That’s how long you’re looking out for Bia appeal if you’re detained.

If You Are Not Detained

Now if you’re not detained it’s usually taking about two years for your appeal to be heard and decided by the board. So what does that mean? Let’s put some dates on it. Let’s pretend that an  immigration judge told you ´´No  I’m denying your case´´ , you applied for 42b cancellation of removal because you felt like it would cause extremely unusual hardship to your US citizen children if you were deported but the judge said no. Let’s pretend that happened on January 2nd 2020.If you appeal to the Board of Immigration Appeals we’re not going to hear from the board of immigration appeals and get that decision for about 2 years. So let’s fast forward two years and we’re looking at January 2nd 2022. So during that time depending on the type of case you have, you have work authorization and you are lawfully present in the country. You don’t have a status/green card but you are not in fear of being removed if you get into a fender bender and the police ask for your ID.  You get an automatic stay while your case is on appeal to the Board of Immigration Appeals here and you usually will have work authorization during that time. 

 

Applying in Circuit Court
For  Non-Detained People

So we’ll use that last example and this is for people who are not detained. If you lost in front of an immigration court on January 2nd 2020 and you were here all the way up your working to about January 2024. But in the ninth circuit it’s going to take about two years so you will have four years during that appeal window where you are not detained, you’re not worried about getting picked up or deported and you also work with authorization. So this is why depending on what your priorities are it’s really important for you to exhaust all of your appeal rights/reserved rights. This is something that’s really important to have granted if you don’t get a stay of removal. It basically means while your case is pending the government is not going to deport you. You have to have that stay removal to stay in the country otherwise you’re going to get deported while your circuit court case is pending. This is again why it is so important if you want those many years and to be able to stay in the country while your case is pending. We have to make sure that you hire an immigration lawyer who specializes in and does a lot of immigration appeals. Especially on the circuit level this is a very high level of appellate work so that they can help you get the stay of removal that you need in order to see the United States while your case is still pending. 

For Detained People

Now if you are detained, we’re going to go back to the other bucket, and you lost the board of immigration appeals is probably going to take about another year for your circuit court case to be decided. So you’re looking at another 16 months more or less from when the immigration judge told you ´no´ to begin with. So a year and a half, 16 months (something like that) is how long it’s going to take for you to exhaust all of you or appellate remedies because the cases move a lot faster. And again this is with the Circuit Court of Appeal. Even if you are detained you have to get the stay of removal or you will likely be deported. Almost with certainty you’ll be deported while your case is still pending even if it’s right there with a circuit court judge waiting to be decided and you don’t have to stay; they’ll still deport you. 

So then again it’s important for you to have an experienced immigration lawyer who can help make winning arguments to show that this stay of removal is really important for you. Immigrants who refused to give up and really wanted to fight their case because they knew it wasn’t just about them, it was about their brothers and sisters and their rights and their children’s rights were hanging on them pursuing their case all the way to the highest court in the land and it paid off.

What Happens When You Don’t Appeal In Time?

Now what if you didn’t appeal? You didn’t appeal in time, you usually have 30 days in order to file your appeal. The next step would be to probably file what is called a motion to reopen. These can be filed usually one time in the life of your whole case and usually has to be within 90 days of the prior decision. 

There are exceptions to both of those rules so I don’t want you to rule out the option of ´well I should have filed a motion to reopen I have now missed my chance because I’m well past my 90 days´ Or ´I filed a motion to reopen and it was denied but I have another basis for a separate motion to reopen´.

What To Do with a Negative USCIS Decision?

Lastly, what if you got a negative USCIS decision? You have appeal rights here too and you also have the right to file a motion to reopen. A motion to reopen is basically if your case is closed you may reopen the case. You want to reopen the case because there’s something that wasn’t presented to the court or to the USCIS officer who made the decision in your case and you need for them to see it. For it to be accurately and properly decided. That’s what a motion to reopen does.

Now if you get a negative/an adverse USCIS decision, let’s say that you petitioned for your spouse and they found out you weren’t married for love, you were married because of an immigration benefit that you’re trying to give your spouse. You can appeal that and it’s going to go to the higher level of the USCIS office. It didn’t make its way over into the immigration court system at that time and so for a lot of reasons I often don’t recommend appealing USCIS decisions. I just want to go back at it and fix the problem that’s underlying it. However these days negative USCIS decisions are getting notices to appear so if you have received the negative decision on one of the positions you filed and it’s about someone that´s here in the country who could possibly be deported it’s so important that you seek an attorney right away. Because back in the day you would be able to refile, you can basically do that on your own time, nowadays it’s not the case there is your notices to appear which means you are now in removal proceedings. Instead of being on your toes and being on the offense, now you’re on the defense because the government is now trying to deport you from this country and they’re on the timeline. Is the very difficult machine to stop. So I encourage you if you have any questions about appeals about motions to reopen really anything that has to do with going higher going above and beyond fighting your case, send us a message. 

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New Frontier Immigration Law

New Frontier understand there is a lot in the news guiding people to be fearful of undocumented immigrants. Fear from the community causes your family to fear more. We understand this, and we want to help.

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