Monday, November 23, 2009

What happens when your Immigration Case is Denied? Appeals to the Board of Immigration Appeals or Federal Courts from denial by IJ/officer

What Happens If Your Immigration Case is Denied?

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 blog.

The Board of Immigration Appeals is found in Falls Church, Virginia, and as of April 2009 has 14 Board Members, who are administrative judges appointed by the U.S. Attorney General. Three member panels make most decisions, however, the whole board will hear the most important cases. The size of the full BIA varies from time to time, depending on resignations, retirements and new appointments; it may have up to 15 Board Members under the current authorizing legislation. However, following the practice of appellate courts, many decisions of the BIA are by panels that are composed of only a few Board Members.

The Board exercises appellate jurisdiction over various types of actions. These include a review of immigration judges' decisions in removal cases; decisions of USCIS District Directors and immigration judges on waiver applications; relative visa petition denials and approval revocations; bond, parole or detention determinations; and immi gration judges decisions on rescissions of adjustment of status. Also included in BIA review are a wide variety of applications, including fraud waivers under section 212(i) and waivers of inadmissibility under section 212(h). The BIA's review of deportation decisions includes a review over the chosen country of deportation; suspension of deportation (now cancellation) applications; voluntary departure applications; registry determinations; discretionary waiver application determinations; asylum applications; and adjustment of status applications.

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.

You must file a notice of appeal on Form I-290A, with the applicable filing fee. The BIA may waive the filing fee for indigents. Appeals from decisions of immigration judges are filed directly with the BIA, while appeals from decisions of the immigration service are filed with the INS officer who has jurisdiction over the case. You must file the notice of appeal within the time periods specified in the regulations. In deportation cases, the Board must receive the notice within thirty days of the immigration judge's decision. The notice of appeal is not considered filed until it is actually received, with a filing fee. If the last day to file falls on a Saturday, Sunday or legal holiday, thereafter the period wherein to appeal is extended to the next business day.

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 INS 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 CIS office that issued the denial decision. An appeal is considered "filed" on the date which it is actually received at the CIS 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.

Motions to Reopen or Reconsider:

An alien may file one motion to reopen or reconsider the decision of an immigration judge, the Board of Immigration Appeals, or the Administrative Appeals Office. For motions to reopen, the motion shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. The motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal, however, there is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for asylum or withholding of deportation and is based on changed country conditions arising in the country of nationality or the country whereto removal has been ordered, if such p roof is material and were not available and could not have been found or presented at the previous proceeding.

A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, and shall state the errors of law or fact in the previous order and shall be supported by relevant authority.

The motion is filed with the judicial body that made the last decision in the case, and must be accompanied by the applicable filing fee. A copy of the motion must be served upon the immigration trial attorney, if applicable.

Federal Court Appeals:

The Immigration Act of 1996 significantly changed many areas of judicial review. In fact, the federal courts are now prevented from reviewing many types of cases over which they previously held authority. In effect, the Act intended to end in many respects the role of the federal courts in immigration matters.

Most of the changes are in section 242 of the immigration act. This section states that the federal courts shall have no jurisdiction to review decisions of immigration officers concerning aliens in expedited removal proceedings. In addition, no court shall have jurisdiction to review any judgment regarding the granting of relief under section 212(h), waiver of inadmissibility for criminal grounds; section 212(i), waiver of inadmissibility for fraud or misrepresentation; section 240A, cancellation of removal; section 240B, voluntary departure; or section 245, adjustment of status. Also, no appeal is permitted for an alien who is inadmissible or deportable because of having committed certain criminal offenses, or whose application for asylum was denied by the immigration service. (It should be pointed out that the constitutionality of many of these new provisions is being tested in the courts now. Therefore, it is possible that some of these new provisions will not stand. If any changes are made, they will be posted immediately to our web site).

When an appeal to the federal courts is permitted, the petition for a review must be filed in the Court of A ppeals, which have jurisdiction over the case, which is the circuit where the immigration judge ended the case. The petition for a review must be filed in the court of appeals within 30 days of the removal order becoming final, and must be accompanied by the applicable filing fee. A copy of the petition must be served upon the Immigration and Naturalization Service.

It must be noted that the filing of the petition for a review does not automatically stay removal of the alien from the United States. Therefore, a motion for a stay of deportation or removal should also be filed with the appeals court.

Once the court of appeals has jurisdiction, it will establish a briefing schedule. These limits can only be changed if the court, for good cause shown, orders differently.

If an alien fails to file a brief within the time called for, the court must dismiss the appeal unless a clear injustice would result. If the decision of an appeals court were not favorable to the alien, the only recourse would be to file a petition to the US Supreme Court.

The “Real ID Act of 2005" was signed into law (Pub. Law No. 109-13) on May 11, 2005, as Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, and became effective on the date of enactment.

(Sec. 101) Amends Immigration and Nationality Act (INA) provisions concerning asylum to: (1) authorize the Secretary of Homeland Security, in addition to the Attorney General, to grant asylum (retroactive to March 1, 2003); (2) require asylum applicants to prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be (if removed) the central reason for their persecution; and (3) provide that an applicant's testimony may be sufficient to sustain this burden of proof only if the trier of fact determines that it is credible, persuasive, and fact-specific. Requires corroborating evidence where requested by the trier of fact unless the applicant does not have the evidence and cannot reasonably obtain it without departing the United States. States that the inability to obtain corroborating evidence does not excuse the applicant from meeting his or her burden of proof.

Lists factors relevant to credibility determinations in asylum cases, including (but not limited to) the: (1) demeanor, candor, or responsiveness of the applicant or witness; (2) inherent plausibility of the applicant's or witness' account; (3) consistency between the applicant's or witness' written and oral statements; (4) internal consistency of each such statement; (5) consistency of such statements with other evidence of record (including the Department of State's reports on country conditions); and (6) any inaccuracies or falsehoods in such statements regardless of whether they go to the heart of the applicant's claim. States that there is no presumption of credibility.

Makes this Act's provisions regarding proof requirements and credibility determinations in asylum proceedings applicable to other requests from relief for removal.

Limits judicial review of determinations regarding the availability of corroborating evidence.

Removes the numerical limit on the number of aliens granted asylum whomay become lawful permanent residents in any fiscal year (currently setat 10,000).

Repeals provisions of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) requiring a study and report on terrorists in the asylum system.

(Sec. 103) Expands the grounds of inadmissibility and deportability due to terrorist or terrorist-related activity to include aliens who: (1) are representatives of terrorist organizations or political, social, or other groups that endorse or espouse terrorist activity; (2) are members of designated terrorist organizations; (3) are members of organizationsthat engage in specified acts of terrorism; (4) endorse or espouse terrorist activity or persuade others to do so; or (5) have received on behalf of any organization that at the time was a terrorist organization.

(Sec. 105) Bars inadmissible arriving aliens from seeking judicial review of removal orders through habeas corpus, mandamus, or other extraordinary petitions.

Imposes a similar bar on denials of discretionary relief and ordersagainst criminal aliens, with an exception for petitions for review concerning constitutional claims or pure questions of law.

Establishes the INA's judicial review provisions as the sole avenue for challenging removal orders and reviewing claims arising under the United Nations Convention Cruel, Inhuman, or Degrading Treatment or Punishment.

Requires petitions for review filed under pre-IIRIRA law to be treated as if filed under INA as amended by this section. States that such petitions shall be the sole and exclusive means for judicial review of orders of deportation or exclusion.

(Sec. 106) Sets forth requirements for delivery bonds (guaranteeing delivery of an alien against whom the Department of Homeland Security(DHS) has issued an order to show cause or a notice to appear) and bonding agents. Requires such bonds to expire one year from the date of issue, at cancellation or upon surrender of the principal, or immediately upon nonpayment of the renewal premium. Authorizes annual renewal.

Requires cancellation of delivery bonds and exoneration of the surety:

  • (1) for nonrenewal after the principal's surrender for removal;
  • (2) if the surety or bonding agent provides reasonable evidence of
    misrepresentation or fraud in the bond application;
  • (3) upon the death or incarceration of the principal or the surety's inability to produce
    the principal for medical reasons;
  • (4) if the principal is detained by a law enforcement agency;
  • (5) if it can be established that the principal departed the United States without permission;
  • (6) if the foreign state of which the principal is a national is designated under temporary
    protected status provisions after posting of the bond; or
  • (7) if the principal is surrendered to DHS, upon removal by the surety or bonding agent.

Authorizes the surrender of the principal to DHS for removal at any time, before bond conditions are breached, if the surety or bonding agent believes that the principal has become a flight risk.

States that a principal may be surrendered without the return of any bond premium if the principal: (1) changes address without providing advance written notice to the surety, bonding agent, and Secretary; (2) hides or is concealed from the surety, bonding agent, or Secretary; (3)
fails to report to the Secretary annually; or (4) violates the contract with the bonding agent or surety, commits any act that may lead to a breach of the bond, or otherwise violates bond obligations or
conditions.

Gives bonding agents or sureties desiring to surrender the principal the
right to:

  • (1) petition the Secretary or any Federal court, without payment of fees or court costs, for an arrest warrant;
  • (2) receive two certified copies of such warrant and the bond undertaking; and
  • (3) pursue, apprehend, detain, and surrender the principal to any DHS detention official or facility or to any detention facility authorized to hold Federal detainees.

Requires all delivery bonds to be secured by a corporate surety that is
certified as an acceptable surety on Federal bonds and whose name
appears on Treasury Department Circular 570 and to set forth specified
information. Requires information about warrants for a principal's
arrest to be entered into the National Crime Information Center
database.

Gives bonding agents or sureties complete access to information about
the principal held by Federal, State, or local governments (or any
related subsidiary or police agency) that the Secretary determines may
be helpful in locating or surrendering the principal.

Establishes graduated penalties for bonding agents and sureties who fail to surrender a principal within 15 months of the issuance of an arrest warrant, subject to waiver. Gives bonding agents or sureties the absolute right to locate, apprehend, arrest, detain, and surrender any principal, wherever he or she may be found, who violates any bond term or condition. Limits total liability on any surety undertaking to the face amount of the bond.

Makes this section applicable to bonds and surety undertakings executed before, on or after the date of enactment of this Act.

(Sec. 107) Requires aliens arrested and detained pending a removal decision to post a delivery bond of at least $10,000 (currently, $1,500) in order to be released from custody, unless an immigration judge orders such alien's release on his or her own recognizance upon a finding that
the alien is not a flight risk and is not a threat to the United States.

(Sec. 108) Requires the Secretary to take into custody any alien subject
to a final order of removal and to cancel bond if the alien is produced
within the prescribed time limit whether or not DHS accepts custody.
States that the obligor on the bond shall be deemed to have
substantially performed all conditions and shall be released from
liability if the alien is produced within such time limit. Makes this
section applicable to all immigration bonds posted before, on, or after
the date of enactment of this Act.

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