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Appeal to Board Of Immigration Appeals

Board of Immigration Appeals Options

There are currently about 40 types of petitions that can be appealed, and, if your petition has been denied, the denial should include information about whether you can appeal. If you choose to appeal, you should know that the appeals process requires very strict adherence to specific deadlines. If you miss the deadlines as stated, you will lose your chance to appeal.

The immigration act provides the opportunity to appeal decisions of immigration officers or immigration judges to a higher level. How, and which court or agency, your appeal should be directed is the subject of this section.

Only aggrieved parties have standing to appeal to the Board. In relative visa petition cases, this means only the petitioner (or the petitioner and the beneficiary together) may file the appeal. In removal cases, only the person ordered removed has standing to take an appeal to the BIA. The BIA has broad authority to review both issues of fact and issues of law, to make its own separate findings of fact and to exercise its broad discretionary powers as it sees fit. Usually, however, the Board will accept an immigration judge's findings of fact, on the rationale that the trier of fact had the better opportunity to assess credibility. The BIA generally limits its review to matters in the hearing record, and will not consider new evidence on appeal, absent exceptional circumstances.

STEPS:

You must set out the specific reasons for the appeal on the notice of appeal form. Failure to follow this requirement may result in a summary dismissal by the Board. The Board may also dismiss appeals that are frivolous or filed solely for delay. If oral argument is desired, you must request it in the notice of appeal. The BIA thereafter has discretion whether to grant the request. You may submit a brief with the notice of appeal, or you can request more time, from the Board, wherein to submit your brief on appeal.

The Administrative Appeals Office is in Washington, DC, and is under the jurisdiction of the commissioner of the immigration service. The AAO has jurisdiction over many types of actions including appeals from denials of employment-based preference petitions, appeals from denials of petitions for temporary workers (i.e., E, H, L, O, & P denials), appeals from revocation of approvals of immigrant visa petitions; reentry permit application denials; and appeals from denials of applications for waiver of the two-year foreign residence requirement based on exceptional hardship or fear of persecution.

A single copy of a notice of appeal is filed on USCIS Form I-290B, with the proper filing fee, within 30 days of the service of notice of the denial. If the service of the denial is by mail, an added three days is added to the 30 days. If the last day to file falls on a Saturday, Sunday or legal holiday, the period wherein to appeal is extended to the next business day. Appeals should be filed with the local USCIS office that issued the denial decision. An appeal is considered "filed" on the date which it is actually received at the USCIS office. The notice of appeal must state the specific reasons which the appeal is based. Failure to do this may lead to a summary dismissal of the appeal. An appeal may also be dismissed if it is patently frivolous. If oral argument is requested, specific written reasons must be provided to explain why the argument is needed. A single copy of a brief may be submitted simultaneously with the notice of appeal, or you may submit your brief directly to the AAO within 30 days. In addition, for good cause shown, the AAO may extend the time wherein to file your brief.

The regulations provide that in nonimmigrant or immigrant visa petition cases, only the petitioner has standing to appeal. However, the alien beneficiary may also join in an appeal filed by the petitioner. On an appeal to the AAO, you are not limited to discussing matters in the record below. You may submit new proof without any showing that the proof was unavailable earlier. Also, the regulations provide that the immigration service may, on its own, treat the appeal as a motion to reopen or reconsider.

After conducting a hearing, an immigration judge rendered an oral decision in which he found that petitioner was deportable as charged and statutorily ineligible for asylum, withholding of deportation and suspension of deportation. Petitioner then filed an appeal with the Board of Immigration Appeals ("the Board"). The Board issued an order in which it affirmed the immigration judge's denial of asylum, withholding of deportation, and suspension of deportation based upon and for the reasons set forth in the immigration judge's decision. The petitioner now seeks judicial review of the Board's decision in this court.

Other Options

It is important to know that the only person who can file for an appeal or a request to reconsider or reopen is the party who filed the original petition. For example, if you file for a fiancee visa and it is denied, your fiancee cannot file an appeal or request. In general, you will have 30 days to file an appeal or a request to reopen or reconsider.

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Appeals