Was your immigration court case denied?
Immigration court rulings are based on law, evidence, and procedure. When any of these are applied incorrectly, you have the right to challenge the decision through an appeal. The purpose of an appeal is to determine whether the immigration judge committed errors that affected the outcome of your case.
Appeals of immigration court decisions are filed with the Board of Immigration Appeals. In an appeal, you cannot present new evidence or get a new trial. Instead, the Board reviews your claims to ascertain if the judge made the mistakes you allege in denying your case.
If You Lost Your Case At Immigration Court
We Can Help You Fight Back
Like all human beings, judges make mistakes.
In your case, for example:
- Was important evidence overlooked or ignored by the Immigration Judge?
- Did the Judge fail to properly consider testimony from one of your witnesses?
- Or was an immigration court rule or procedure used against you in an unfair manner?
If these types of errors took place, you have the right to challenge the Immigration Judge’s decision.
To do so, you usually need to file an appeal with the Board of Immigration Appeals. But immigration deportation appeals are no ordinary challenge.
Let’s go over the details you need to know.
Table Of Contents
- What Is An Immigration Appeal?
- Why You Must Win Your Immigration Appeal To Prevent Deportation
- How Filing An Appeal Works
- What Is A Notice of Appeal?
- All Deportation Appeals Are Difficult Cases
- What Are The Chances Of Winning Immigration Appeals?
- High Stakes: Immigration Appeals We Have Handled
- Motions To Reopen And Reconsider: Alternatives To Appeals
- What If You Lose Your BIA Appeal?
- Federal Court Review After Adverse BIA Decision
- Your Immigration Appeal Requires Personalized Strategy
- Your Immigration Appeal Requires Specialized Training
- Pitfalls To Avoid: Factors Affecting Immigration Appeals Success
- Charting Your Course: Why Choosing The Right Immigration Appeals Lawyer Is Crucial
- Your Immigration Attorney’s Experience
- Your Immigration Attorney’s Writing Skills
- Your Immigration Attorney’s Dedication And Commitment
What Is An Immigration Appeal?
An appeal, generally speaking, is a challenge to a previous decision. In particular, it is a challenge by a person who lost their case. They seek to undo and reverse the adverse judgment.
Appeals are filed with higher courts, known as appellate courts.
Immigration appeals are challenges to negative rulings by the Immigration Court (EOIR) or an immigration agency like the U.S. Citizenship and Immigration Services (USCIS).
In this article, we will focus on appeals that arise out of Immigration Court.
These are appeals filed with the Board of Immigration Appeals (BIA).
Considering An Immigration Court Appeal?
Appeals to the Board of Immigration Appeals are governed by strict deadlines and legal standards. A brief review of an immigration judge’s decision may help determine whether an appeal is available and what issues can be raised.
We represent individuals in immigration court appeals nationwide, including throughout Southern California.
Contact our office to evaluate whether an appeal is appropriate.
Why You Must Win Your Immigration Appeal To Prevent Deportation And Separation
Once you lose your case at Immigration Court, the government can remove you from the United States.
If you file a BIA deportation defense appeal, doors remain temporarily open. The government will not take steps to deport you until your immigration appeal is over.
This is called a “stay” of deporation – a temporary suspension of the order to remove a person from the United States.
Your hopes of living, working, and going to school in the United States remain alive.
The opportunity to become or remain a lawful permanent resident will close, perhaps forever, if you lose your appeal. So winning your immigration appeal could be your last chance to stay together with your family in the United States.
In some cases, especially when the immigrant spouse is locked up at a detention center, the U.S. citizen husband or wife must take the lead in fighting back.
Take Camilla.
Like many wives who contact our office, she was not willing to give up on her husband without contesting the immigration judge’s decision to deport him:
“I don’t think my husband received a fair trial, and that, among other things, is one of the main reasons I haven’t given up on this case. Do I think his due process rights were violated? Yes I do.
The judge did not combine hardships. My daughter has a complicated medical history. But the judge said he was not considering my daughter’s health care a hardship to my current husband because my ex-husband is involved in her life on the weekends. We have split custody, that’s true, but my ex-husband is not living with me.
My daughter is a special needs child and taking care of her is a big, big responsibility, especially with my own health issues, and two other minor children. Even though my husband is a wonderful step-father, his role in their upbringing was ignored.
The judge also said my husband’s personal testimony was weak. He is a very intelligent person, but I don’t think he was able to represent himself very well in court. He said that his translator spoke a different dialect and it made some things hard to understand. Yet, the judge let the case go forward.
My husband has a difficult time talking to people he doesn’t know, and he comes across as very withdrawn. He rarely makes eye contact. I personally think he suffers from severe social anxiety disorder and while he was in jail, there was psychological testing done. The judge did not allow further testing, because he said there was no time for that.
I need my husband. My children need their step-father. I want to fight my husband’s case.”
How Filing An Appeal Works
Winning your appeal is not easy.
It is more difficult, in many ways, than winning your trial at immigration court.
A BIA appeal, after all, is not a retrial. It is a review regarding what happened at court, and whether legal errors were made that led to the negative outcome.
Moreover, most immigration appeals are “paper” appeals. Witnesses do not testify. Lawyers do not appear in court.
Nor can you ask the BIA to second-guess issues that are properly within the immigration judge’s discretionary authority.
There must be a concrete mistake.
What Is A Notice of Appeal?
The Notice of Appeal is a short document filed with the Board of Immigration Appeals which informs the Immigration Court and Department of Homeland Security that you are challenging the court’s decision.
Filing a Notice of Appeal starts the appeals process. It is required to be filed in Falls Church, Virginia within 30 days of the Immigration Judge’s decision in your case.
The Board of Immigration Appeals (BIA) is the nation’s highest immigration court.
When filing an appeal with the BIA, don’t fall into the trap of thinking their role is to re-weigh all the evidence presented.
Rather, their review is more limited and frequently less immigrant-friendly than decisions by immigration judges.
Quite often the issues from the immigration court hearings you think are important – are not relevant to the Board of Immigration Appeals.
And this is one crucial reason you likely need the guidance and help of an immigration appeals attorney. You want to make sure that the issues you present are properly and thoroughly developed.
All Deportation Appeals Are Difficult Cases
Immigration Court appeals are a special component of deportation defense.
Because of highly technical rules and procedures, helping clients fight their appeals is one of the most arduous responsibilities of deportation and removal defense services – and the most important for immigrants who have already lost their cases.
What Are The Chances Of Winning Immigration Appeals?
Over 200,000 immigrants lose their cases at immigration court each year.
Few take it to the next level.
Few file an appeal.
Only 35,000 to 40,000 – less than 20% – keep fighting to stay in the United States with their wife and children.
Of the 35,000 to 40,000 who decide to fight the immigration court decision . . .
. . . Only 10% win their appeals.
The other 90% who filed appeals and challenged the judge’s deportation order . . .
. . . They lost
And most of them do not continue fighting (at a higher court) – due to the financial cost and legal difficulty required to keep going forward.
This means . . . to prevent deportation and separation from your spouse and family . . .
. . . Victory at the BIA is a must.
High Stakes Immigration Appeals
We Have Handled
BIA Appeal Based On The Immigration Judge Ignoring An Available Defense
In a California case, a lawful permanent resident lost his case in immigration court despite qualifying for two types of relief from deportation: cancellation of removal and relief under INA § 212(h). The immigration judge only considered cancellation of removal, viewing it as the simpler option, and declined to evaluate the § 212(h) claim.
Cancellation of removal for lawful permanent residents does not require proof that a qualifying relative would suffer extreme hardship if the individual is deported. Instead, the judge weighs positive and negative equities, such as family ties, length of residence, and criminal history. For that reason, the judge viewed cancellation of removal as the easier path.
The judge reasoned because § 212(h) relief requires a showing of extreme hardship to a qualifying relative, such as a spouse, child, or parent, it involves a tougher legal standard. As a result, the judge declined to pursue a § 212(h) analysis. He overlooked that § 212(h) relief involves more than hardship to qualifying relatives. The statute also requires a full consideration of the permanent resident’s own hardship..
In this case, the individual’s personal hardship was substantial and should have been considered as part of the § 212(h) analysis. By cutting off review of that claim, the judge excluded a major factor in the client’s favor. On appeal, we challenged this omission and the failure to properly consider all available relief. The Board of Immigration Appeals agreed and held that the judge’s analysis was incomplete.
BIA Appeal Involving Family Unity And Relocation Issues
In a case arising out of Texas, a husband and wife with three U.S.-born children were placed in immigration proceedings. The wife’s case was heard first. The immigration judge ordered her removed to Mexico. He assumed the husband, a native of Guatemala, could relocate there and the family could remain together, Based on that assumption, the judge minimized the impact of family separation and did not fully evaluate how the wife’s removal would affect the children.
At a later hearing, the same judge ordered the husband removed to Guatemala. This ruling showed the earlier assumption about the family relocating together to Mexico was speculative and incorrect. The government did not provide any evidence regarding the immigration process in Mexico for the husband or children to join the wife. Nor did it offer information whether the wife and children could immigrate to Guatemala.
On appeal, we argued the judge’s unsupported conjectures precluded proper consideration of the relocation issue. Since their parents were ordered deported to different countries, the children would have to leave the United States, as well as face separation from at least one parent.
BIA Appeal Challenging How Cancellation Of Removal And Qualifying Relatives Were Evaluated
A family of five from the State of Washington contacted us after losing a joint immigration court case. The parents and their three children had entered the U.S. without permission more than ten years earlier. At the time of the hearing, the children ranged in age from 17 to 20, and the parents also had an eight-year-old child born in the United States. All family members lived in the same home.
At the hearing, the parents sought cancellation of removal under INA § 240A(b) and presented evidence of the hardship their children would face if the parents were deported. The immigration judge declined to separate the cases, so only the eight-year-old U.S. citizen child was considered a qualifying relative for hardship purposes.
On appeal, we argued that the court erred by failing to separate the cases of the three older children. The two oldest children were married with children of their own, and the 17-year-old also had a young child born in the United States. Each of the three older children was entitled to an individual cancellation of removal hearing. If any qualified for cancellation, their hardships would count as qualifying relatives. The Board of Immigration Appeals agreed and sent the cases back for new hearings.
Motions to Reopen and Reconsider: Alternatives to Immigration Court Appeals
After an immigration court hearing has ended, immigrants have the right to challenge a judge’s decision to deny them relief and order their deportation. The most common route is to file an immigration appeal.
However, filing an appeal is not always the best approach. In some cases, your situation would be better served by filing a motion to reopen or a motion to reconsider.
Motions to reopen are based on new evidence or changed circumstances that were not available at the time of the hearing. Motions to reconsider focus on a misapplication of law, policy, or procedure by the immigration judge.
Often, the two motions can be combined.
For a more detailed explanation of how these motions work and when they apply, see our page on motions to reopen and reconsider.
What If You Lose Your BIA Appeal?
If you lose your BIA appeal, once again your case is over. You are required to leave the country or immigration agents will begin the deportation process on their own.
In some cases, if you lose your case before the BIA, you can file another appeal with a higher court – the Federal Circuit Court of Appeals.
Federal Court Review After BIA Decision
As you move from one court to a higher court, the rules for contesting a decision becomes narrower and narrower, stricter and stricter.
Federal appeals have separate procedures, filing deadlines, and mors omplex court rules. In addition, they focus on the decisions made by the Board of Immigration Appeals.
This means some issues which were important to present to the Board of Immigration Appeals – are not relevant to the federal appellate court.
Yet, filing an appeal at federal court is sometimes the only way to win your case – especially if your case involves unique issues or new laws just passed by Congress.
However, filing a higher court appeal does not automatically prevent your removal from the U.S. A special motion to stay the deportation is usually required.
Although overcoming the immigration judge’s decision remains possible, the odds for winning are much lower.
Yepez-Razo v. Gonzales
In 1987, at age 11, Miriam entered the U.S. under the family unity provisions created by the Reagan Administration. She was allowed to live here while the government reviewed her application for lawful permanent residency. Her father was required to renew her status every two years until a final decision was made.
In 1995, Miriam’s father filed her papers about two weeks late. The government approved the extension.
In 1996, she was granted lawful permanent resident status.
In 1998, Miriam was arrested for a minor offense. She was turned over to immigration agents and immediately scheduled for deportation hearings.
Before calling our immigration law offices, Miriam’s father and husband were told by other immigration attorneys that she did not qualify for any relief. They came to our San Diego office barely two hours before her hearing was scheduled to begin. Carlos identified one – and only one – way to fight her deportation.
- For Miriam’s husband, a U.S. citizen, deportation meant losing his wife and the mother of their newborn child, and the end of their life together.
- For Miriam’s father, deportation meant losing his only child as a result of a simple filing mistake he made several years ago.
- For Miriam, deportation meant being forced to leave the only country she had known since she was in pre-school, having to lose her job, her home, and her friends, as well as being separated form her father, her daughter, and husband.
They decided to go with Carlos’ recommendation. They understood the fight would be complicated.
Under the new rules, the government argued, Miriam needed seven years of lawful permanent resident status before the date she was arrested. This meant she was disqualified from any defense and would be deported.
Carlos disputed the government’s position. He argued for a different interpretation of the new law. He asserted the new law only mandated seven years of lawful presence. Because the government allowed her to remain in the United States since 1987, he explained, Miriam’s presence was lawful.
The Immigration Judge agreed with the government. The judge ordered her to be deported.
Carlos filed an appeal with the Board of Immigration Appeals. He challenged the government’s position and the judge’s decision.
Three years later, the BIA ruled against Miriam. Carlos firmly believed they were wrong. He refused to quit. Miriam’s family refused to quit. They took their challenge to the Ninth Circuit Court of Appeals.
Finally, after four more years, Miriam won her appeal. Her case lasted over eight years.
The nightmare was over.
Your Immigration Appeal Requires Personalized Strategy
If you have lost your case at immigration court, and you need to file an appeal, a lot is at stake for you and your family.
Your immigration appeals attorney cannot afford to take a “one size fits all” cookie-cutter approach to your appeal.
Every immigration appeal is different.
No two cases are exactly alike. No two appeals are exactly alike.
Whether your case begins in San Diego or San Bernardino, Escondido or Riverside . . . or anywhere in the United States . . . your immigration lawyer must take an open-minded approach to finding solutions which increase your chances for success.
All of your immigration appeals attorney’s strategic decisions – from which pieces of evidence to highlight – to what aspects of the judge’s ruling to attack – are important to the final outcome of your appeal.
And they are never the same from case to case.
“I was trained to analyze a case from all angles. I was told to successfully confront my opponent, I must learn to think like my opponent. As a lawyer, this ability has been a tremendous asset in helping clients. When I work on appeals, I go inside a judge’s brain and explore logical flaws in his or her reasoning.”
— Carlos Batara
Your Immigration Appeal Requires Specialized Training
Few deportation appeals succeed without an immigration attorney who has a track record of handling appeals.
- Meet tight deadlines. Once you lose your case at Immigration Court, you have 30 days to file a Notice of Appeal. A few months later, you get a new deadline: your written appeal must be submitted in just 21 days. Your immigration lawyer must be ready to quickly act with thoroughness and accuracy.
- Understand appellate procedures. The Board of Immigration Appeals is allowed to make decisions on a “streamlined basis.” This means your immigration appeals lawyer has to get the facts and arguments in front of the appeals judge – and explain them clearly and persuasively the first time. There is no room for mistakes.
- Preserve options for higher appeals. If you lose your appeal with the Board of Immigration Appeals, you have the right to file an appeal with the Federal Court of Appeals, a higher court. You cannot afford errors on your BIA appeal – or you might damage your chance to win a federal court appeal. Only 1 in 10 BIA appeals succeed. Your immigration attorney must preserve all your options.
Pitfalls To Avoid: Factors That Can Undermine Immigration Appeals
Because appellate law is complex, there are various stumbling blocks which can trip up immigrants. Even strong cases can fall short. These articles discuss some of the toughest pitfalls and systemic challenges that present formidable hurdles to surmount.
How Lozada Motions Protect Immigrants At Immigration Court
Explains how ineffective assistance of counsel claims can arise in immigration appeals.
Immigration Appeals: 49 Minutes For Justice, Fairness, And Due Process
Discusses how time pressures and procedural constraints affect comprehensive BIA review.
Affirmance Without Opinion: BIA Cure Worse Than Appellate Disease
An analysis of streamlined BIA decision process and its impact on meaningful appellate analysis.
Dark Days Of Deportation Defense: The BIA Failure To Lead
Examines shortcomings with judicial issues like hardship within the immigration appellate system and their consequences.
Charting Your Course: Why Choosing The Right Immigration Appeals Lawyer Is Crucial
Your Immigration Attorney’s Experience
Immigration deportation appeals usually require a challenge to the immigration judge’s legal reasoning – a claim that the judge has not interpreted the law correctly. Perhaps the judge ignored testimony or overlooked evidence that was important to your case.This evidence may have led to a different decision.
Carlos Batara has been specializing in immigration law and immigration court appeals for over 30 years. He has acquired an in-depth knowledge of immigration rules and procedures, deportation defense, and immigration trials throughout the United States.
Your Immigration Attorney’s Writing Skills
Your immigration deportation appeal will succeed or fail based on the documents prepared on your behalf. Your immigration appeals lawyer needs to write persuasively, reason analytically, and identify creative but logical interpretations of immigration regulations.
A Harvard Law School graduate, Carlos Batara developed these skills at one of the top law schools in the United States – where precise writing, rigorous logic, and insightful argumentation were emphasized.
Your Immigration Attorney’s Dedication And Commitment
Generally, an appeal takes three to four times as long to prepare as family and employment petitions.
Appellate defense against removal is complicated.
There are no easy appeals. Reversing a deportation order and transforming it into a green card and permanent residency is not a task for the faint-hearted.
- Your immigration attorney’s location is not important. Immigration appeals presented to the Board of Immigration Appeals are almost always done entirely on paper. They are rarely made in person.
- We can work on your appeal whether you live in Sarasota or Seattle . . . Los Angeles or New York . . . or anywhere in the United States.
Your deportation appeal could last several years. Like swimming the English Channel against cold, choppy water and strong winds, a successful finish often appears beyond reach.
Your immigration deportation lawyer must be highly motivated to stay with you through what can be a long, frustrating process.
When it comes to immigration law, there are some cases where an attorney’s experience and skills alone are not enough. Winning a hard immigration appeal is one.
Dedication and commitment, at such times, is the difference.
Additional Immigration Services
For an overview of all immigration matters we handle, in addition to our immigration appeals services, visit our Immigration Legal Services page.
Immigration Appeals Assistance Throughout Hemet, San Bernardino County, And Riverside County
A denial from the immigration court is not always the end of the road.
If an immigration court ruled against you, you may still have options. Appeals and post-decision motions may be possible. They can challenge incorrect decisions and protect your future.
These cases demand precision. Success requires detailed legal analysis, procedural expertise, and persuasive written advocacy..
We can handle your immigration appeals and help you fight for a second chance through any of our regional service hubs:
No matter where you live, we are committed to protecting your rights, pursuing every form of relief available, and keeping your family together.
Nationwide Representation: Appeals to the Board of Immigration Appeals are mostly done through written submissions. Because of this, an attorney’s location is not important. Our virtual immigration law office enables us to prepare and file BIA appeals for clients anywhere in the U.S. This means we can represent individuals no matter where they live.
If you lost your case, you refuse to give up, and you’re ready to explore whether to file an immigration appeal, let’s schedule your personalized strategy and planning session.
