What happens if an immigration judge denies your request for immigration benefits or orders your removal from the US? Is this the end of your case? Who can you turn to for help? Fortunately, the immigration system allows you to challenge the ruling or order. Just as important, you do not have to do it alone.
In the face of a denied request or an order for removal, you may have the right to ask the Board of Immigration Appeals (BIA) to review that decision. The appeals process includes filing legal paperwork and explaining why the judge’s decision was wrong. You should also have an immigration lawyer by your side.
EMP Law can help. We are dedicated to assisting individuals standing up to powerful government agencies and advocating for people whose ability to live and work in the US is at stake. Partner and immigration attorney Helen L. Parsonage has earned recognition for her work in immigration law and is admitted to practice before multiple federal courts and federal appellate courts.
What Does It Mean to Appeal an Immigration Decision?
When you appeal an immigration decision, you ask the Board of Immigration Appeals to review a decision made by an immigration judge. The BIA then reviews the facts and the law to determine whether the judge made the correct decision in your case. If you appeal successfully, the Board may override the immigration judge’s decision, and may, for example, order that the judge grant you asylum that they wrongly denied.
How to File an Appeal with the BIA
Before you begin the appeal process, you need to ensure that the Board of Immigration Appeals has the authority to review the decision. The Board usually reviews final decisions, meaning decisions by a judge that resolve a case. Final decisions commonly involve the court issuing a removal order or approving or denying, for example:
- Asilo,
- Cancellation of removal, or
- Adjustment of status.
You begin the process by notifying the government that you want the BIA to review a decision. Immigration and Customs Enforcement (ICE) then assigns an attorney to represent the government’s interests in the case. They argue that the immigration judge made the correct decision, while you explain why they did not.
Notify the Government That You Intend to Appeal
To ask the Board of Immigration Appeals to review your case, you first notify the government that you intend to appeal. In most cases, you do this by working with your lawyer to file Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge.
You have to file the notice within 30 days of the date of the immigration judge’s decision. Missing the deadline often means you lose the right to appeal.
Explain Why You Believe the Decision Was Wrong
Filing a notice of appeal starts the process, but the Board still needs to understand why you believe the immigration judge reached the wrong result. To present your appeal, you work with your lawyer to identify the legal or factual errors that affected your case. Depending on the circumstances, we may argue that the immigration judge:
- Applied the wrong legal standard,
- Misinterpreted immigration laws or regulations,
- Reached factual conclusions unsupported by the evidence,
- Failed to consider important evidence, or
- Made procedural errors during the proceedings.
Your attorney drafts a written explanation of what happened and what errors occurred. We use and submit a document called a brief to the court to connect the facts of your case to immigration statutes, regulations, prior BIA decisions, and federal court opinions to explain what the immigration judge got wrong for your BIA immigration appeal.
Wait for the Board’s Decision
After reviewing the record and written arguments you or the ICE attorney files, the BIA issues a written decision. Depending on its findings, the Board may:
- Dismiss the appeal, effectively agreeing with the immigration judge’s decision;
- Sustain the appeal, changing something about the result the immigration judge ordered; or
- Return the case to the immigration court for additional proceedings, such as ordering a judge to allow you to present additional evidence you obtained.
The written decision explains how the BIA reached its conclusions and what happens next in your case.
Do You Need a Lawyer to File an Appeal?
While you generally have the right to represent yourself before the Board of Immigration Appeals, that is not always the best approach.
Appeals typically require you to identify legal errors, research immigration law, and explain why those errors justify changing the result an immigration judge reached. To pursue an appeal effectively, you may need to:
- Analyze immigration statutes and regulations,
- Review hearing transcripts and court records,
- Research prior BIA decisions,
- Draft detailed legal arguments, and
- Preserve issues for possible future review.
The process requires you to follow procedures that non-attorneys are unfamiliar with, while ICE will assign an attorney to argue against you. That lack of parity makes an immigration attorney essential in a BIA appeal.
How Long Does a BIA Appeal Take?
Appealing to the BIA is a formal process. The answer depends on the specific circumstances of your case. The BIA appeal processing time can vary depending on the complexity of the issues, the Board’s caseload, and the procedural history of the case.
Factors that may affect timing include:
- The type of immigration relief involved,
- The number of appeals currently pending before the BIA,
- Whether a briefing is required,
- Requests for extensions, and
- The complexity of the legal issues presented.
Some appeals move through the system more quickly than others. Because processing times can change, it is important to discuss current expectations with an attorney familiar with BIA immigration matters.
Get Help with a Board of Immigration Appeals Case
Appealing an immigration decision requires you to identify the issues that affected your case, present legal arguments supporting your position, and comply with strict procedural requirements—all while arguing your case against a government attorney. An immigration lawyer takes the burden of navigating complex regulatory systems and laws off your shoulders.
EMP Law helps clients throughout North Carolina and beyond navigate immigration appeals, deportation defense matters, and other complex immigration issues. We are here to help.
If you need guidance regarding a Board of Immigration Appeals case, contact EMP Law today.
Helen cree en proporcionar una representación cuidadosa, reflexiva y completa para cada persona.
En particular, Helen se centra en ayudar a las personas a navegar por el laberinto de normas, procedimientos y procesos creados por los Servicios de Ciudadanía e Inmigración de los Estados Unidos y a quienes se enfrentan a cargos penales o a la deportación.
Representa a clientes que se enfrentan a cargos penales tanto en tribunales estatales como federales. Es miembro del panel de abogados de la Ley de Justicia Penal en el Distrito Medio de Carolina del Norte, y está admitida para ejercer ante los Tribunales Federales del Distrito Este, Medio y Oeste, así como en los Tribunales de Apelación del Cuarto y Undécimo Circuito.
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