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Appeals from USCIS Applications and Waivers

Depending on your situation, if your immigration application was denied you may be able to appeal the decision. In other cases, you may be able to file a new application. What options are available to you, and which option is the best for your situation will depend on the specifics of your case. You’ll likely need to discuss your situation with an immigration lawyer to identify the best option for you.

Appeals from Immigration Court Decisions

If you receive an unfavorable decision from an immigration judge, you may want to consider appealing the decision. Below is general information to introduce you to some of the options that may be available to you: appeals to the Board of Immigration Appeals, Motions to Reopen, and Motions to Reconsider. You should keep in mind that any type of appeal will likely have a deadline associated with it. Therefore, if you plan to appeal you should keep these deadlines in mind.

Appeals to the Board of Immigration Appeals (BIA)
To appeal a decision of an immigration judge to the BIA, you’ll need to file a Notice of Appeal. In most cases, the Notice of Appeal must be received by the BIA within 30 calendar days after the immigration judge’s oral decision or within 30 calendar days after the date of the immigration judge’s written decision was mailed (if there was no oral decision). All appeals to the BIA must arrive at the BIA prior to the filing deadline. It is not enough for you to place your Notice of Appeal in the mail prior to the deadline. Late filings are not accepted, even if there was an unexpected delay in mail service. Make sure that you do not miss your deadline.

The filing fee for the Notice of Appeal is $110 and the fee must accompany the filing. If you cannot pay for the filing fee, it may be possible to obtain a fee waiver.

Keep in mind that appeals are technical legal proceedings. If you are unsure of how to frame your appeal in legal terms, you should consult with an immigration lawyer in order to ensure that your Notice of Appeal and brief are properly submitted. If you were represented by a lawyer during your immigration court hearing, she may be able to assist you with your appeal. You are not required to have the same lawyer represent you in your appeal. If the lawyer that represented you during your hearing does not handle appeals (not all immigration lawyers accept appeals cases), you should consult with a different immigration lawyer as quickly as possible. Your new lawyer will need as much time as possible to prepare your Notice of Appeal, and you cannot get an extension to the thirty day deadline because you delayed in consulting with a lawyer.

Motion to Reopen
A motion to reopen is typically used to ask the immigration judge or BIA to reevaluate a decision because new information is available. Keep in mind that new information generally does not include information that was available before the initial decision. If you fail to present evidence during your hearing, you generally cannot use a motion to reopen to have a second chance to present that evidence. Instead, a motion to reopen is used to present information that was not previously available. For example, if your situation has changed and you now qualify for a new form of relief, you may be able to use a motion to reopen to have the judge consider granting you the new form of relief.

You should ensure that your motion to reopen meets all the requirements for this type of motion. Depending on the basis for your motion to reopen, the motion must contain certain statements (such as the new facts that will be presented in a reopened proceeding). If you file a motion to reopen so that you can apply for a form of relief that was not previously available, the application for relief must be attached to the motion. Other requirements may also apply. The motion should be supported by a brief or memorandum of law.

There are other requirements that need to be met such as limits on the number of motions that can be submitted in a case and the deadlines for filing motions.

Motion to Reconsider
A motion to reconsider is used to correct an error of law or to reexamine the facts.

You should ensure that your motion to reconsider meets all the requirements for this type of motion. For example, the motion must state the errors of fact or law that you want to have reconsidered and you must support your request with precedent decisions that show that the decision was based on an incorrect application of law. Other requirements may also apply. The motion should be supported by a brief or memorandum of law.

There are other requirements that need to be met such as limits on the number of motions that can be submitted in a case and the deadlines for filing motions.

Additional Notes on Immigration Appeals
In addition to the options discussed above, depending on your situation, you may have other options available to you.

Due to the complexity of BIA appeals, motions to reopen and motions to reconsider, I strongly recommend that you consult with an immigration lawyer as soon as possible after receiving an unfavorable decision.