Board of Immigration Appeals
Unfortunately, Immigration Judges are unable to approve every case before them in Immigration Court. When Immigration Judges deny cases, they issue deportation orders to the intending immigrants. The Immigration Judge’s deportation order may include a written explanation of the reasons they denied the case. However, this does not mean that the fight is over. You can challenge the Immigration Judge’s findings before the Board of Immigration Appeals (BIA) by filing an appeal. This will typically allow you to remain in the U.S. while the appeal is pending.
How to appeal a deportation order
The first step to appealing the denial of your case is to file a notice of appeal at the BIA. This is done on EOIR Form 26. You must file the notice of appeal within 30 days of the denial of your case. This means that the BIA must receive the notice of appeal before the 30th day. The BIA is located in Falls Church, Virginia so make sure to send it early so that it arrives before the 30th day! You must also send a copy of the notice to the Department of Homeland Security (DHS). You must also pay $110 by money order or check to the ‘US Department of Justice’ with your form EOIR 26. The BIA will send you a receipt indicating that you have properly filed your appeal. At this point, your appeal is pending before the BIA.
You generally do not have to physically appear in court to defend your case at the BIA. Instead, you will wait for the BIA to send you a briefing schedule and transcript of the hearing which will indicate when you must file your written brief in defense of your case. You may wait for a long time. Some appeals remain pending for months or even years before a briefing schedule is sent. When the time comes to send your brief, remember to send a copy of your brief to the DHS attorney.
After your brief is filed, DHS has the opportunity to respond to your arguments by filing their own brief. They will also send you a copy. When the BIA Judge has received briefs from both parties, they will issue a written decision on your case. If the BIA Judge believes the Immigration Judge committed errors in denying your case, they will send the case back to the Immigration Judge with specific instructions to make a new ruling on your case without committing the same errors. This could result in the Immigration Judge approving your case. Conversely, if the BIA Judge decides that the Immigration Judge did not commit any errors in denying your case, your deportation order will be re-issued. This means that you will either need to leave the country or file for appeal in the appropriate Circuit Court.
Contact an appellate lawyer
Please remember, this is a bare-bones description of the appeals process before the BIA. The appeals process is complicated and difficult to navigate. Every case is different and requires careful attention. The above description is not to be construed as legal advice. We highly recommend you consult an attorney if you are considering an appeal of the denial of your immigration case. Attorney Diana Bailey has over 23 years experience in filing Appeals with the BIA – please call our office for a free telephone consultation on our toll free number (866) 521-6422.