Types of immigration appeals: there are different appellate processes that immigrants must go through. these processes depend on the nature of the immigrant’s petition or application, whether the person has a valid immigration status, and whether that immigrant is detained in an immigration detention facility. there are five main types of immigration appeals: appeals before the AAO; appeals before the bia; criminal alien appeals; habeas corpus, mandamus and apa actions; petitions for review to u.s. courts of appeals; motion to reconsider/motion to reopen.
US Immigration Appeals
In general, an appeal is an application – mostly in writing – to the authority, which oversees the decision maker. For obvious reasons, an appeal is made by the party unhappy or unsettled with the result of litigation. Depending on the nature of the litigation, the institution to which the appeal is addressed might be a different department within the same administrative agency that made the original decision, a different administrative agency or court of higher authority. Three types of results might happen during an appeal – the original decision may be reversed and vacated, modified or left intact.
In immigration context, depending on the case, each administrative decision must be first appealed to an administrative agency with higher authority. For the most part, there are two major administrative appellate bodies that oversee immigration appeals – The Board of Immigration Appeals (BIA) the Administrative Appeals Office (AAO) formerly known as Administrative Appeals Unit (AAU).
The BIA is charged with adjudicating all direct as well as interlocutory appeals of decisions of the immigration courts nationwide, attorney disciplinary actions and appeals of the family visa petitions or I-130 petition as they are widely known. AAO is charged with adjudicating all other appeals of the decisions coming out of the U.S. Citizenship and Immigration Services (USCIS), the agency charged in the U.S. Immigration System with the responsibility of adjudicating immigration benefits nationwide.
Ladership: Ron Rosenberg is the Chief, Administrative Appeals Office. MISSION: The Administrative Appeals Office (AAO) will provide timely, consistent, and accurate resolution of appeals through written decisions that are fair, impartial, and legally supportable by: ensuring consistency and accuracy in the interpretation of immigration laws, regulations, and policies; maintaining awareness of developments in applicable case law, regulations, statutes, and policies; striving for efficiency and timely resolution in processing each appeal; recommending the publication of precedent decisions to clarify adjudication issues.
On June 22, 2017, the Executive Office for Immigration Review (EOIR) issued a news release titled “Reminder Regarding EOIR’s Fraud and Abuse Prevention Program.” In this post, we will examine the Fraud and Abuse Prevention Program and notes from the EOIR reminder.
In the course of immigration proceedings, certain forms and motions must be filed with the Executive Office of Immigration Review (EOIR). Some of the forms published by the EOIR have associated filing fees. In the interest of ensuring that aliens of limited financial means have the opportunity to pursue their cases before Immigration Courts and/or the Board of Immigration Appeals (BIA), the regulations provide for a limited-use fee waiver for those who lack the ability to pay. In this article, we will discuss the regulations regarding fees in immigration court and before the BIA.
On August 18, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017). The bulk of the decision dealt with determining whether an Oregon statute that criminalized burglary of a dwelling without requiring proof that a victim is actually present at the time of the burglary categorically defined a crime involving moral turpitude (CIMT). The Board ultimately determined that the statute did categorically define a CIMT because it required that to qualify as a dwelling the building must be at least intermittently occupied. In this article, we will examine the Board’s analysis of the respondent’s applications for relief from removal after it determined that he had been convicted of a CIMT. Although the analysis does not break new ground, it is worth examining separate from the Board’s analysis of the statute of conviction.
On August 18, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017). In Matter of J-G-D-F-, the Board was tasked with determining whether “burglary of a dwelling” in violation of section 164.225 of the Oregon Revised Statutes is a crime involving moral turpitude (CIMT). The Board had previously held that burglary of a dwelling where a victim was present at the time of the burglary was a categorical CIMT. The specific issue in the instant case was that the statute at issue did not require that the dwelling in question have been occupied at the time of the burglary. The Board held that the statute nevertheless categorically defined a CIMT because it required that the dwelling be at least intermittently occupied. In this article, we will examine the facts and procedural history of the case, the Board’s analysis and conclusion, and what the new precedent will mean going forward.
Each month, the Executive Office for Immigration Review (EOIR) publishes the Immigration Law Advisor. In this article, we will review the December 2016 edition of the Immigration Law Advisor (Vol. 10 No. 9) for its discussion of notable decisions and developments in immigration law.
On June 15, 2015, the Supreme Court of the United States issued a decision titled Mata v. Lynch, 135 S.Ct. 2150 (2015). In the decision, the Supreme Court held that the Courts of Appeal have jurisdiction over motions to reopen removal proceedings even where the motion was denied due in part to its having been untimely filed. Furthermore, the Supreme Court held that courts retain jurisdiction over the denial of such a motion to reopen even where the Board had also declined to exercise its discretionary sua sponte (“on its own motion”) authority to reopen. In this article we will analyze both the majority opinion of Justice Kagan and, in brief, the dissenting opinion of Justice Thomas. Next, we will examine the unpublished Fifth Circuit decision issued on remand from the Supreme Court decision in Mata. Finally, we will analyze subsequent circuit court decisions that cite to the Mata decision.
On May 24, 2017, the United States Court of Appeals for the Seventh Circuit issued a decision for publication titled Sanchez v. Sessions, —- F.3d —— (7th Cir. 2017). In the decision, authored by Judge Richard Posner, the Seventh Circuit issued a stay of removal until it could rule on an alien’s petition of review of the Board of Immigration Appeals (BIA’s) denial of his motion to reopen. The alien sought reopening in order to pursue non-lawful permanent resident (LPR) cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA). In this article, we will examine the Seventh Circuit decision in Sanchez v. Sessions.
In Montano-Vega v. Holder, 721 F.3d 1175 (10th Cir. 2013), the Tenth Circuit rejected an 8 C.F..R. 1003.4 challenge by an alien who had departed the United States while his appeal of a denial of voluntary departure was pending. The alien had departed to avoid taking the risk of being subject to the 10-year unlawful presence bar if his appeal was denied. This decision is notable for having been authored by Judge Neil Gorsuch, who has been nominated to the United States Supreme Court.
In De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015), the Tenth Circuit held that the Board of Immigration Appeals (BIA) erred in applying its precedent decision in the Matter of Briones, 24 I&N Dec. 355 (BIA 2007) retroactively. The situation in the case involved an alien who was found to be barred from adjustment of status under section 245(i) of the Immigration and Nationality Act (INA) on account of his being subject to the 10-year bar of inadmissibility under section 212(a)(9)(C)(i)(I) in accordance with the Matter of Briones. This article will discuss the situation involved in this case, the reasoning behind the Tenth Circuit’s decision, and the broader implications of the decision going forward.
On November 16, 2017, Attorney General Jeff Sessions released a memorandum to the entire Department of Justice (DOJ) titled “Prohibition on Improper Guidance Documents.” In the memorandum, Attorney General Sessions prohibited the issuance of DOJ guidance documents that have the effect of circumventing the Administrative Procedures Act (APA) or effectively creating new law. In this article, we will review the memorandum and examine what it may mean going forward.