Columbus Immigration Appeals Attorney
In the event an immigration petition or application is denied or revoked, the petitioning party may be able to appeal the decision. The notice of revocation or denial will advise the petitioning party if they have the right to retrial and, if so, the procedure for appealing the decision. The type of petition or application being appealed will determine the reviewing authority. The Administrative Appeals Office (AAO) and Board of Immigration Appeals (BIA) are the two government agencies with original jurisdiction over immigration appeals.
The notice of revocation or denial will not only specify the reason for the decision and identify the appellate body with jurisdiction, but also indicate the correct appeal form, filing location and deadline. Generally, appeals from an application or petition that was denied must be filed within 30 days of the original decision, and appeals from an approved application or petition that was revoked must be filed within 15 days. An additional fee is required to file an appeal, but the appealing party may apply for a fee waiver under certain circumstances. The appealing party has the option of being represented by an attorney and filing a brief in support of the retrial. Ultimately, the reviewing authority will make one of the following determinations:
- Uphold the original decision;
- Reverse the original decision; or
- Remand the matter to the original adjudicator for further action.
It is important to note that only one appeal per denial or revocation may be filed, and denials of extensions or change of nonimmigrant status cannot be appealed. Moreover, only the petitioning party, and not the beneficiary, has standing to appeal an adverse decision. The timeframe for processing and receiving an appeal decision can range anywhere from an immediate decision up to two years.
The BIA is part of the Executive Office of Immigration Review. It has jurisdiction over, among other things, appeals arising from removal or exclusion orders, fines, motions to reconsider and motions to reopen. The BIA primarily conducts “paper” reviews without courtroom proceedings, but has been known to grant oral argument on rare occasions.
Within 30 days of an adverse decision, a petitioning party may file a motion to reopen or a motion to reconsider. A motion to reopen requests that the adjudicating authority reopen the case because new evidence or facts are available that may alter the original determination. Alternatively, a motion to reconsider alleges that the original decision contained an erroneous application of law or policy that should be reconsidered by the adjudicator.
Addressing a judicial appeal to the US Circuit Court is usually the right path to take after exhausting all other administrative appeal options. In most cases, it is recommended that the initial appeal through the administrative course be thoroughly presented, and include all available facts; leaving only the most essential and critical facts when making a judicial appeal, if necessary (at this later stage, the law doesn’t easily accept the presentation of additional facts). Occasionally, it is possible to appeal to the Federal Court directly, in the event that there is no administrative appeal court with the required jurisdiction to rule over certain matters, such as pure constitutional issues.
Regardless of the situation, filing an appeal is a complex process and it is strongly recommended that you seek support from experienced legal advisors who can solidly present your case and defend your rights.