Appeals, Motions to reopen, and Motions to reconsider
What happens in the immigration court when a non-citizen is found removable and there is no relief or relief was denied? Most people would say to appeal the decision. Appeals of the immigration court are heard in the Board of Immigration Appeals (BIA). However, an appeal of the decision from the immigration court is not always the best thing to do. A motion to reconsider or a motion to reopen before the immigration court may be preferable than appealing to the BIA. The BIA is composed of 14 permanent judges and 5 temporary judges. These judges have very different backgrounds. Typically, only one of the judges will be assigned to an appeal. Having one of the judges assigned to your case creates unpredictability in the outcome – one judge may think a remand is necessary whereas another may not. Furthermore, the BIA typically takes months or years to render a decision, whereas the immigration court may only take a month to two. Each path – motion versus appeal – has their advantages and disadvantages.
The ultimate goal of any motion or appeal is to get back into the immigration court. That is why an experienced immigration attorney is needed – to sort through the case and find out what the best option is for you. The firm has a proven track record with appeals and motion to reconsider and reopen. The firm is located in Baltimore, Maryland, however the firm handles appeals/motions from all over the country. The BIA is located in Northern Virginia less than a hour drive from the firm’s office location in Baltimore. In many instances, where deadlines are looming, the the firm has visited the BIA personally to review our client’s files. The firm will do whatever it takes to make sure you beat deportation.
Motions to reopen and motions to reconsider
Motions to reopen and motions to reconsider may be filed in the immigration court and the Board of Immigration Appeals. Motions to reconsider ask the court to reconsider a possible error in fact or law from a previous decision. Motions to reopen ask the court to consider new evidence that was not available before. Both motions have strict filing deadlines – the motion to reconsider must be filed within 30 days of a final judgment and the motion to reopen must be filed within 90 days of a final judgment. However, there are exceptions and even if your case has been decided years ago, there may be a way to get your case reopened.
Motions to reopen are a key component of the firm’s business. If you received a deportation order many years ago and you are still in the United States and you now have some type of relief (such as marriage to a U.S. citizen), you must reopen your removal proceeding before you can get your green card. The firm prides itself on its motions to reopen, especially when the case has been closed for many, many years. We have reopened cases where there was no hope and where other firms had failed. It is a big risk for you to spend thousands of dollars on an attorney to reopen your case because you really only have one chance to get it right. Make sure you have an experienced attorney who knows what he is doing so you do not have to spend more money on a second attorney to fix the errors of your first attorney, which may not be fixable.
Appealing to the Board of Immigration Appeals
Remember that even though you may have lost the battle in the immigration court, you may not have lost the war. The immigration court is your best chance of beating deportation, but the Board of Immigration Appeals (BIA) is you next best chance. The BIA is a federal immigration appeals court and every appeal from every immigration court goes to the BIA. This is a critical stage because, in general, the BIA can completely review the decision of the immigration court. Remember, you only have 30 days to file a notice of appeal to the BIA.
In some cases, the Department of Homeland Security will appeal your case even though you won. You need an experienced attorney to protect your hard-fought victory.
Federal appeals courts
The federal appeals courts are your last hope at beating deportation. The federal appeals courts review decisions by the Board of Immigration Appeals. Congress has restricted the jurisdiction of the federal appeals courts in recent years making it all the more difficult to prevail in these courts. Nevertheless, this option should not be overlooked. Our firm specializes in strategic motions practice in the Board of Immigrations Appeals and well-written and well-researched briefs in the federal appeals courts to give you the best possible chance to beat deportation.
In the United States, there are 52 immigration courts, two detained-only immigration courts, and two special processing centers. There is also an immigration court in Puerto Rico. Most of these courts are not not housed in traditional courthouses, but are located in ordinary looking office buildings. The Department of Justice controls and manages these courts and you can view their website for more detailed information on each court.
If you are in removal/deportation proceedings, your case will be heard in one of these courts. Your best chance of beating deportation is in these courts. In many cases, the immigration judge has individual discretion to decide your case, as in waiver applications or cancellation of removal. In these case, the immigration judge can consider at many factors – humanitarian issues, family issues, special needs, length of residency, good moral character, etc. – in making a decision about deportation. In other cases, the immigration judge is bound by law to decide your case, as in deportation based on criminal convictions, material support bars, and persecution bars. In these cases, the immigration judge has little or no discretion to decide your case because the immigration judge is bound by the current law to decide your case. Applications for asylum require a combination of discretion and the application of law.
IMPORTANT: If you lose your case in the immigration court, you have not lost your fight to beat deportation . . . you can file:
- a motion to reopen – to have the immigration judge consider new evidence or a change in circumstances (90 day time limit, with special rules for applying after the 90 day time limit)
- a motion to reconsider – to have the immigration judge reconsider his or her ruling based on an error of fact or law (30 day time limit)
You can also file an appeal to the Board of Immigration Appeals and have new judges look at your case (30 day time limit).
THE BOARD OF IMMIGRATION APPEALS
The most import thing to remember is that even though you may have lost the battle in the immigration court, you may not have lost the war. The immigration court is your best chance of beating deportation, but the Board of Immigration Appeals (BIA) is you next best chance.
The BIA is a federal immigration appeals court and every appeal from every immigration court goes to the BIA. Like the immigration courts, this court is also managed and controlled by the Department of Justice. You can review the court’s information at the their website.
An appeal to the BIA is a critical stage because, in general, the BIA can completely review the decision of the immigration court. Our firm will file a notice of appeal, review your immigration court transcript, prepare a brief, and reply to any response brief filed by the Department of Homeland Security. If the BIA determines that your case was wrongly decided, the BIA will remand your case back to the immigration court so that the immigration court can correct its mistakes, which means that your will beat deportation.
However, if the BIA determines that the immigration court did not make any mistakes, your fight against deportation is still not over. You can file a motion to reopen and a motion to reconsider with the BIA.
In addition, you now have the right to appeal your BIA decision to one of the 11 federal courts of appeals.
THE FEDERAL COURTS OF APPEALS
The federal appeals courts are your last hope at beating deportation. The federal appeals courts review decisions by the Board of Immigration Appeals. Congress has restricted the jurisdiction of the federal appeals courts in recent years making it more difficult to prevail in these courts. Nevertheless, this option should not be overlooked.
The federal appeals court can only decide your case based on the record in the immigration court and the Board of Immigration Appeals. It is very important to submit critical information to the Board of Immigration Appeals through either a motion to reopen or a motion to reconsider concurrent with any appeal to the federal appeals courts. Our firm specializes in strategic motions practice in the Board of Immigrations Appeals and well-written and well-researched briefs in the federal appeals courts to give you the best possible chance to beat deportation.
If the federal appeals courts reverses a decision of the Board of Immigration Appeals, your case will be sent back to the Board of Immigrations Appeals. The Board of Immigration Appeals will then send the case back to the immigration court, which means you will beat deportation.
THE UNITED STATES SUPREME COURT
If the federal appeals court denies your case, the last and absolute final step is to apply for certiorari to the United States Supreme Court. Although your case may not be heard by the Supreme Court, the court may still reverse a federal appeals court decision if there were any apparent errors.
Recent Case Results
April 14, 2014 – Citizen of El Salvador is returned to the United States after victory in the U.S. Court of Appeals for the Fourth Circuit
Facts: On May 28, 2013, a citizen of El Salvador was ordered deported by the Department of Homeland Security (DHS) according to a final administrative order of removal. The family of the citizen of El Salvador came to the firm for help.
The Firm’s Representation: Our client had a conviction for fourth degree sex offense in Maryland. DHS alleged that the conviction was an aggravated felony, sex abuse of a minor. Immediately, the firm contacted DHS and demanded to file a rebuttal to DHS’s allegations. DHS also refused to turn over the conviction records upon which it made its aggravated felony determination. However, after consulting with their attorneys, DHS relented and turned over the records for inspection by the firm and permitted the firm to file a rebuttal. The firm wrote a rebuttal within several days and submitted it to DHS. DHS refused to change their position and ordered our client removed. The firm filed a petition for review in the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit). Unfortunately, the firm could not stop our client’s physical deportation because the prevailing case law of the Fourth Circuit for stays does not permit a stay of deportation for circumstances such as our client’s circumstances. After filing the opening brief in the Fourth Circuit, the attorneys for the government realized that the DHS’s position was untenable. DHS was forced to rescind the final administrative removal order. The firm then began the process of getting our client returned to the United States. After some reluctance, DHS issued our client a parole document so he could return to the United States. On April 14, 2014, our client returned to the United States.
Outcome: Our client’s case is now pending before the U.S. Immigration Court in Baltimore, Maryland. Our client can seek the relief of Temporary Protected Status.
November 28, 2011 – Citizen of Trinidad and Tobago retains his green card after ICE terminated proceedings. Client released after two years of ICE detention.
Facts: In 1998, a citizen of Trinidad and Tobago was granted lawful resident status. In 2009, he was convicted in Maryland of second degree assault. ICE detained our client and instituted removal proceedings alleging that our client had committed “sexual abuse of a minor.”
The Firm’s Representation: The firm represented our client throughout his entire immigration proceedings. The firm asserted that the charges of removability could not be sustained by a conviction for second degree assault. In December 2009, our client was ordered removed in the Immigration Court. Our appeal to the Board of Immigration Appeals was denied in April 2010. On June 3, 2010, our client was deported to his home country of Trinidad and Tobago. The firm appealed to the U.S. Court of Appeals for the Fourth Circuit. By order of the Fourth Circuit, the case was remanded back to the Board of Immigration Appeals, which remanded the case all the way back to the Immigration Court. After lengthy negotiations with the Department of Homeland Security, our client was granted parole back into the United States on June 3, 2011. In the Immigration Court, once again the Immigration Judge ordered our client deported. The firm filed an appeal to the Board of Immigration Appeals and filed a habeas corpus in the U.S. District Court for Maryland. Concurrent with our client’s immigration proceedings, the firm also filed and successfully obtained post-conviction relief for our client’s 2002 theft conviction.
Outcome: On November 28, 2011, the Department of Homeland Security changed their position on our client’s case and terminated his removal proceedings and released our client from detention. Hopefully, in a couple of years, the firm will be able to file an application for citizenship on behalf of our client.
October 17, 2011 – Citizen of Togo received Reopening from the Board of Immigration Appeals
Facts: In 2001, a citizen of Togo came to the United States and applied for asylum, which was denied. In 2010, he tried to get his case reopened and sought assistance from a local law firm in another state. The prior law firm filed a motion to reopen, which was summarily denied. Then, the prior law firm filed a second motion, which was also denied. After the second denial, the citizen of Togo was distraught, depressed, and ready to give up. Instead of giving up, he sought the firm’s help.
The Firm’s Representation: The firm reviewed our client’s case and saw that his previous law firm had made several egregious mistakes in their motions. The previous law firm had asserted that our client was eligible for relief, but for the wrong reasons. The firm re-filed a motion to reconsider asserting that our client’s case should have been reopened based on a different theory of law. The firm asked the Board of Immigration Appeals not to penalize our client for the sins of his previous counsel.
Outcome: On October 17, 2011 the Board of Immigration Appeals granted the motion to reopen. Our client is now free to adjust status in the Immigration Court and finally after over 10 years, get his green card. Our client’s case is now pending before the Immigration Court and USCIS.
June 6, 2011 – Citizen of Kyrgyzstan received asylum after the firm won a remand in the Board of Immigration Appeals
Facts: A citizen of Kyrgyzstan applied for asylum in the United States based on religious persecution in his home county. Unfortunately, he was denied asylum. He retained an attorney to represent him before the Board of Immigration Appeals (BIA). His appeal was denied. He was unsatisfied with his attorney and asked the firm for help with his case.
The Firm’s Representation: The firm took our client’s case and immediately filed a petition for review in the United States Court of Appeals for the Fourth Circuit. Simultaneously, the firm filed a motion to reconsider with the BIA. The firm determined that our client’s previous attorney missed a crucial legal argument in the direct appeal to the BIA.
Outcome: On November 10, 2009, the BIA granted the motion to reconsider and remanded the proceedings back to the immigration court. On June 6, 2011, with the assistance of the firm, our client was granted asylum.
April 14, 2011 – NACARA application denied based on manslaughter charge, appeal pending in the U.S. Court of Appeals for the Fourth Circuit
Facts A citizen of Guatemala came to the United States in 1984. In 1986, he was convicted of manslaughter in Washington, D.C. In 1991, he applied for inclusion in the American Baptist Churches (ABC) class action settlement. In 2006, the United States Citizenship and Immigration Services denied his application for NACARA benefits stating that his manslaughter conviction rendered him ineligible. He contacted the firm for help with his case.
The Firm’s Representation The firm took our client’s case and filed a writ of habeas corpus in the United States District Court of Maryland. Later, the firm filed a complaint for declaratory judgment and injunction relief and motion for a temporary restraining order. In addition, the firm represented our client at his NACARA hearing in the immigration court.
Outcome On March 12, 2010, the U.S. District Court issued an order declaring our client to be a member of the ABC class action settlement and ordered the government to comply with the terms of the ABC class settlement. Our client’s NACARA application was denied by the immigration court. The firm appealed to the Board of Immigration Appeals, which denied the appeal on April 14, 2011. The firm appealed the BIA’s decision to the U.S. Court of Appeals for the Fourth Circuit. The matter has been briefed and we are awaiting a decision from the court.