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.

Immigration Appeals

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.

Role and Structure of the Administrative Appeals Office (AAO)

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.

EOIR Issues Reminder Regarding Fraud and Abuse Prevention Program

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.

Fees for EOIR Forms Filed in Immigration Court or Before the BIA

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.

Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017) - BIA Analysis of Particular Social Group Claim

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.

Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017) - Burglary of a Dwelling in CIMT Context

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.

Federal Court Decisions and Immigration (November 2016)

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.

Mata v. Lynch - Courts Have Jurisdiction to Review BIA Denials of Motions to Reopen Where Montion was Untimely

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.

Seventh Circuit Grants Stay of Removal Pending Review of BIA Denial of Motion to Reopen

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.

Montano-Vega v. Holder, 721 F.3d 1175 (10th Cir. 2013) -- Gorsuch Opinion Rejecting 8 C.F.R. 1003.4 Challenge

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.

De Niz Robles v. Lynch (10th Cir.): Matter of Briones does Not Apply Retroactively

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.

Attorney General Sessions Issues DOJ Memo On Improper Guidance Documents

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.

SCOTUS Grants Cert in 17-459 Pereira v. Sessions: When Does an NTA Trigger Stop-Time Rule for Cancellation Purposes?

On January 12, 2018, the Supreme Court of the United States agreed to hear 17-459 Pereira v. Sessions on appeal from the United States Court of Appeals for the First Circuit. The case concerns when a notice to appear triggers the stop-time rule for purposes of eligibility for cancellation of removal. In this article, we will briefly examine the the important issues presented and what this may mean going forward.

Jennings v. Rodriguez: SCOTUS Analyzes Jurisdictional Bar With Respect to Mandatory Detention During Proceedings

On February 27, 2017, the Supreme Court of the United States issued a significant immigration detention decision in Jennings v. Rodriguez, 583 U.S. __ (2018). In Rodriguez, a 5-3 majority of the Supreme Court reversed the United States Court of Appeals of the Ninth Circuit decision in Rodriguez v. Robbins, 803 F.3d 1060 (9th Cir. 2015), which held that aliens subject to mandatory detention under sections 235(b) and 236(c) of the Immigration and Nationality Act (INA) could not be detained for longer than six months under those provisions, and aliens detained under section 236(a) were entitled to periodic individualized bond hearings every six months where the burden would be on the government to establish by clear and convincing evidence that the continued detention was necessary. In this article, we will examine the concurring opinion filed by Justice Clarence Thomas, in which he was joined by Justice Neil Gorsuch for all but footnote 6. Justices Thomas and Gorsuch took the position that section 242(b)(9) of the INA deprived the courts of jurisdiction to consider the respondents’ challenges to their immigration detention. However, because the other three members of the majority and the three dissenters in the case took the position that the Court did have jurisdiction.

Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018): AG Vacates Decision Remanding for Hearing on Asylum Where App. Was Withdrawn

On March 5, 2018, Attorney General Jeff Sessions issued a published immigration precedent decision in the Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). By this decision, Attorney General Sessions referred the Board’s published decision in Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014) to himself and then vacated the decision. In this article, we will briefly examine the 2014 Matter of E-F-H-L- decision, the Attorney General’s decision to vacate, and what this means going forward.

Board of Immigration Appeals Expands from 17 Members to 21

On February 27, 2018, the Executive Office for Immigration Review (EOIR) published a new final rule in the Federal Register (FR) at 83 FR 8321 titled “Expanding the Size of the Board of Immigration Appeals.” The new rule will mend 8 C.F.R. 1003.1 to expand the size of the Board of Immigration Appeals (BIA) from 17 to 21. In this article, we will briefly examine the background of the expansion and what it means going forward.

Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988): Reasonable Opportunity for Petitioner to Respond to Derogatory Evidence

On January 27, 1988, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). The Board held that a petitioner must be given a reasonable opportunity to rebut evidence cited in a notice of intention to deny his or her petition. Matter of Obaigbena is also notable for its reaffirmation in a footnote that assertions of counsel do not constitute evidence. The Board also held that where the petitioner makes a “reasonable and timely request” for an extension of time to submit a rebuttal, the adjudicator should deal with the request “in a reasonable and fair manner.” In order for a request for an extension to be “reasonable,” it must be specific in stating the reason that the extension is needed, must request the extension for only a finite period, and must not be designed to give the petitioner time to submit documents that he or she should have submitted as an initial manner in accordance with applicable regulations. However, note that the regulations regarding the period of time for a petitioner to respond to a notice of intent to deny have changed subsequent to the issuance of Matter of Obaigbena. We will examine how the decision is relevant in the context of the new rules.

Matter of L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018): When Can Continuance Be Granted to Adjudicate Collateral Matter?

On March 22, 2018, U.S. Attorney General Jeff Sessions referred multiple decisions of the Board of Immigration Appeals (BIA) to himself for review in Matter of L-A-B-R- et al., 27 I&N Dec. 245 (A.G. 2018). In the decision, the Attorney General requested briefing of issues relating to when there is “good cause” to grant a continuance of proceedings to allow for adjudication of a collateral matter.

Matter of A-B-, 27 I&N Dec. 247 (A.G. 2018): AG Retains Briefing Request on Particular Social Group Issue

On March 30, 2018, Attorney General Jeff Sessions issued a second decision in Matter of A-B-, 27 I&N Dec. 247 (A.G. 2018). In the initial decision, Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018), Attorney General Sessions requested briefing on the following question: “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Subsequent to the first Matter of A-B-, the Department of Homeland Security (DHS) requested that Attorney General suspend the briefing schedules and clarify the questions presented. Attorney General Sessions denied the requests to suspend the briefing schedules and clarify the question, but he granted the request of the parties to extend the briefing schedules. In this post, we will explain Attorney General Sessions’ analysis and conclusions in the second Matter of A-B- decision.

Trump v. Hawaii (Concurring Opinions): Justice Thomas Addresses Nationwide Injunctions in "Travel Ban" Case

On June 26, 2018, the Supreme Court of the United States issued a decision in Trump v. Hawaii, —- S.Ct. —— (2018). The case involved the restrictions on entry of nationals from certain countries in President Donald Trump’s September 24, 2017 Presidential Proclamation 9645, known as the “travel ban.” A five-Justice majority in Trump v. Hawaii rejected arguments that the President had exceeded his authority under the Immigration and Nationality Act (INA) and ruled that claims that the entry restrictions violated the Establishment Clause were unlikely to succeed under rational basis scrutiny, which was the Court’s chosen standard of review. In this article, we will examine the two concurring opinions in Trump v. Hawaii. The first was authored by Justice Anthony Kennedy and the second by Justice Clarence Thomas. Both Justices joined the opinion of the court authored by Chief Justice John Roberts in full but wrote separately to address additional issues. Although the concurring opinions are not binding, they are worth reading and considering for future cases, most notably Justice Thomas’s discussion of nationwide injunctions issued by Federal district courts.

Martinez-De Ryan v. Sessions: Ninth Circuit Holds CIMT Inadmissibility Statute is Not Unconstitutionally Vague

On July 17, 2018, the United States Court of Appeals for the Ninth Circuit issued a published decision in Martinez-De Ryan v. Sessions, —- F.3d —— (9th Cir. 2018). The Court held that the provision of the Immigration and Nationality Act (INA) rendering an individual who committed a crime involving moral turpitude ineligible for cancellation of removal is not unconstitutionally vague. Although this decision is in line with long-standing Supreme Court and Ninth Circuit precedent on the issue, the decision is noteworthy in light of the Supreme Court of the United States’ recent decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), where it struck down as unconstitutionally vague the incorporation of 18 U.S.C. 16(b) (the “residual clause” of the federal criminal code’s definition of “crime of violence”) into the INA.

Supreme Court Circuit Justice Assignments

Each of the thirteen federal circuit courts is assigned one Supreme Court Justice who then considers certain appeals (e.g., emergency requests and other matters) from his or her assigned circuit while other aspects of the case are still pending. The Chief Justice of the United States is responsible, under 28 U.S.C. 42, for allotting circuit justices “in vacation.” This article contains the current Circuit Justice assignments.

Jurisdiction of the Federal Circuit Courts

In this article, we will list the jurisdiction of each of the thirteen federal circuit courts along with notes on their significance in the context of immigration appeals.

Mejia Galindo v. Sessions: 7th Circuit Holds BIA Lacks Authority to Enter Removal Order in the First Instance

On July 31, 2018, the United States Court of Appeals for the Seventh Circuit issued a published decision in Mejia Galindo v. Sessions, —- F.3d —— (7th Cir. 2018). In an opinion authored by Judge Diane Sykes, the three-judge panel vacated a removal order issued by the Board of Immigration Appeals (BIA) because it was improperly issued by the BIA in the first instance, and remanded the case for further proceedings consistent with its opinion. In this article, we will review the opinion by Judge Sykes and explain its significance in the context of immigration appeals to the BIA.

Duron v. Johnson: 5th Cir. Finds No Jurisdiction Over Selective-Enforcement Claim Brought by U.S. Citizen Children of Alien

On August 6, 2018, the United States Court of Appeals for the Fifth Circuit issued a published decision in Duron v. Johnson, —- F.3d —— (5th Cir. 2018). Two children of a citizen and national of Mexico brought suit to prevent his deportation, arguing that his removal was unconstitutional under the First and Fifth Amendments. In an opinion authored by Senior Judge Thomas Morrow Reavley, the three-judge panel held that it lacked jurisdiction to hear either claim, and accordingly dismissed the suit. Notably, the Court held that the children’s Fifth Amendment selective-enforcement claim was barred by section 242(g) of the INA, notwithstanding the fact that the children alleged that it was their own constitutional rights and not the rights of the parent that were being violated. In this article, we will examine the factual and procedural history of the case, the content of the children’s constitutional claims, and why the Fifth Circuit concluded that it had no jurisdiction to consider the claims.