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.

Different Types of AAO Decisions

The highest administrative review body in the United States Citizenship and Immigration Services (USCIS) is the Administrative Appeals Office (AAO). The AAO has jurisdiction to review many types of appeals of denials of USCIS benefit requests. In this article, we will examine the different types of decisions that the AAO can issue.

2016 In Review - Adopted Decisions

In 2016, the United States Citizenship and Immigration Services (USCIS) designated four decisions of the Administrative Appeals Office (AAO) as “adopted decisions.” An adopted decision constitutes binding policy on the USCIS and all of its employees. In this article, we will review each of these decisions and provide brief summaries along with links to the corresponding articles.

Comprehensive List of Articles on Attorney General and BIA Precedent Decisions

Attorney General and Board of Immigration Appeals administrative precedent decisions play an important role in our system of immigration laws. The first precedent decision, Matter of L, 1 I&N Dec. 1 (BIA 1940), was published on August 29, 1940. Nearly 77 years of precedent decisions are now collected in 27 volumes. Here at myattorneyusa.com, we have a growing collection of dedicated articles on published decisions, including every decision going back to the middle of 2015. In this post, we will keep a running list of all of our dedicated articles on precedent decisions. The decisions are organized by topic with short descriptions and links to the associated articles.

2016 in Review - Administrative Precedent Decisions (Part 1)

2016 saw the publication of 28 new precedent decisions that will help shape immigration law across a variety of areas going forward. In order to stay on top of the latest developments in immigration law, we worked diligently to publish articles on the 28 precedent decisions and four adopted decisions as they were published in 2016. In this article, we will provide brief summaries of each of the first fourteen precedent decisions along with links to their corresponding articles. In the conclusion, we will highlight a few of the decisions that should have broad importance going forward.

2016 In Review - Administrative Precedent Decisions (Part 2)

In 2016, the Board of Immigration Appeals (BIA), the Attorney General, and the Administrative Appeals Office (AAO) combined to produce 28 immigration precedent decisions. With 2016 having come to a close, and 2017 promising to be a significant year in immigration law, we felt that it would be a good time to reflect on the year that was in new administrative precedents. In this article, we will examine the latter 14 immigration precedent decisions issued in 2016. We will provide brief summaries of each decision along with links to the corresponding full articles. In the conclusion, we will highlight the most important of these decisions for immigration law going forward.

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.

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.