Appeal

• Rights to Appeal

• Appeal Deadline

• Motion to Reopen or Motion to Reconsider

• Appeal to AAO

• Appeal to BIA

• Petition for Federal Judicial Review

Rights to Appeal

If your petition or application is denied or revoked by the USCIS, in most cases you may appeal that decision to a higher authority for review. If you receive a denial notice, it will advise you of your right to appeal, where and when to file your appeal, and the appropriate appeal forms.

There are two appellate review authorities: the Administrative Appeals Office (AAO) within the USCIS, and the Board of Immigration Appeals (BIA), under the jurisdiction of the Executive Office of Immigration Review, United States Department of Justice (DOJ).

Appeal Deadline:

There are strict deadlines that must be met to properly file an appeal. To appeal the denial of a petition or application, the notice of appeal must be filed within 30 days of the date of the decision (or 33 days if the decision is received by mail). To appeal the revocation of an approved immigrant petition, the notice of appeal must be filed within 15 days of the date of the decision (or 18 days if the decision is received by mail).

The appeal must be filed with the correct fee at the office that made the original decision. You may file a brief (explanation) in support of the appeal. After review, the appellate authority may agree with you and change the original decision, disagree with you and affirm the original decision, or send the matter back to the original office for further action.

Motion to Reopen or Motion to Reconsider:

In addition to the right to appeal, you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision, asking the office to reexamine or reconsider its decision. A motion to reopen or reconsider must be filed within 30 days of the decision.

A motion to reopen must state the new facts that are to be provided in the reopened proceeding and must be accompanied by affidavits or other documentary evidence.

A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made.

Appeal to AAO:

First look at the Form I-292 or notice of denial and determine whether you may appeal the denial of your petition or application to AAO. If you may, the notice of appeal must be filed on Form I-290B (Notice of Appeal to AAO) with the Administrative Appeals Office that has jurisdiction over the decision. A legal brief (explanation) may be filed in support of your appeal.
 

Appeal to BIA:

Most common cases appealed to BIA include:

• Immigration Judge's (IJ) final decision or exclusion and deportation;

• IJ's final decision or removal cases;

• IJ's decisions on cancellation of removal applications in removal proceedings;

• IJ's decisions on adjustment of status;

• Decisions for all preference petitions, revalidation and revocation of petitions. I

• Decisions on waiver of inadmissibility for non-immigrant;

• Determination relating to bond and detention in removal;

Visit BIA website if you may appeal to BIA.

Petition for Federal Judicial Review:

(A) Exclusion cases: If Board of Immigration Appeals (BIA) affirms exclusion order:

1. Seek habeas corpus in U.S. district court.
2. If habeas corpus is denied in district court, appeal to court of appeals.
3. If denied by court of appeals, file writ of certiorari with U.S. Supreme Court.

(B) Deportation cases: If BIA affirms deportation order:

1. File petition for review in court of appeals.
2. If denied, consider:

• Writ of certiorari to U.S. Supreme Court
• Writ of habeas corpus
• Motion to reopen before BIA

The transitional rules apply if a final deportation or exclusion order was entered on or after October 31, 1996, including after April 1, 1997. For such cases, the following rules apply:

(A) Writs of habeas corpus in the district courts are not available to obtain judicial review of exclusion orders; rather, seek review in the circuit court of appeals as if it was a deportation order.

(B) The petition for review must be filed within 30 days of the final exclusion or deportation order.

(C) The petition for review must be filed in the court of appeals for the circuit where the immigration judge completed the proceedings.

(D) Service of the petition for review does not automatically stay the alien's deportation, unless the court orders otherwise.

Normal Judicial Review for Removal Cases Begun on or after April 1, 1997:

If BIA affirms removal order:

(1) File petition for review in court of appeals.

(2) If denied, file writ of certiorari with U.S. Supreme Court.

Special Treatment of Criminals:

(A) Non-lawful permanent resident aggravated felons.

(1) After final administrative order by removal officer, file petition for review in court of appeals.

(2) If denied, file writ of certiorari with U.S. Supreme Court.

(B) Judicial removal

(1) Removal order issued in U.S. district court during sentencing

(2) Appeal both sentence and removal order to court of appeals

(3) If denied, file writ of certiorari with U.S. Supreme Court

Expedited Removal:

(A) If no asylum claim and officer orders removal:

(1) File habeas corpus action in U.S. district court.

(2) If denied, appeal to court of appeals.

(3) If denied by court of appeals, file writ of certiorari with U.S. Supreme Court,

(B) If asylum claim, but immigration judge orders removal:

(1) File habeas corpus action in U.S. district court;

(2) If denied, appeal to court of appeals.

(3) If denied, file writ of certiorari with U.S. Supreme Court.