Even if you take proper time and careful consideration with immigration applications or matters, you can still receive an unfavorable result or lose your deportation case. In many cases, you have the ability to appeal an unfavorable immigration decision through the legal process.
You often have the right to due process, even if you are not a United States citizen. Due process gives you the right to be heard in court and to show why any unfavorable decision was wrong. You should always hire an immigration lawyer to represent you in the legal process; the need is even more critical when you must file an appeal or seek other kinds of immigration relief.
USCIS deals with a massive caseload each year. Even though the federal government has expanded its hiring of USCIS officers, it does not mean that each officer has the necessary time to get things right in your case. Mistakes do happen, and the USCIS is not always right. One mistake from an overworked case officer can have a massive impact on you and your family, so it is essential to seek a review of any unfavorable decision if you believe that an error was made. The consequences of doing nothing can be drastic.
When You May Be Able to File an Immigration Appeal
When you receive an unfavorable decision, such as the denial of your citizenship application or an order to removal from the country, you have the right to seek review from another body. For example, if USCIS has denied a request or ordered you to be deported, you have the right to take your case to immigration court. Some examples of decisions you may appeal include:
- Denial of an asylum request
- Removal from the United States
- Revocation of your temporary status
- Denial of a green card
- Denial of your application for citizenship
Appeals to the Administrative Appeals Office
Some cases may involve filing an initial appeal in front of the Administrative Appeals Office, which is a component of the USCIS. The AAO exists to ensure that USCIS officers are making correct decisions and properly finding and applying facts. The AAO does not have jurisdiction over the matter listed above. You might appeal things such as:
- Denial of temporary protected status
- Denial of certain types of visas
- Immigration petitions for entrepreneurs
There are three possible outcomes in an AAO appeal:
- Your appeal can be dismissed entirely
- Your appeal can be sustained
- The case will be remanded to the USCIS officer with specific instructions
Since the AAO and an immigration law judge do not have overlapping jurisdiction, you cannot take your case to court if you lose this appeal.
Appeals to an Immigration Law Judge
In some cases, your appeal will begin in front of an immigration judge. They will review the USCIS decision to see if any error occurred. The immigration law judge can make certain findings of fact in your case. In other words, they do not have to give any deference to what USCIS thinks or believes.
You need an immigration law attorney when your case is in front of a judge. Although you have a right to appeal their decision, you may get only one chance to establish a record and the facts of your case. This record will largely be intact at later stages of your case and will be what other judges consider if you have to appeal further.
Taking Your Case to the Board of Immigration Appeals
If you need to appeal your case further, you can notify the Board of Immigration Appeals. There will be three judges on the panel who are appointed to your case. An immigration appeal to the BIA involves a different standard of review than the one at the lower level. Here, the BIA will defer to the facts the immigration judge already found. They do not begin a review of your case from the start or allow you to present new information as part of this appeal process.
Instead, the BIA looks more at whether the law was correctly applied to the facts in your case and whether the overall process that the immigration law judge used was correct. The BIA looks at issues of law from scratch to determine whether the immigration law judge may have made an error. If there are any facts that the BIA may not accept, they can send the case back to the immigration law judge for further fact-finding. The BIA will only disturb any facts that were found in your case if they find that there is a clear error.
In immigration law cases, a clear error may include:
- Credibility determinations for witnesses
- Determinations regarding dates, places, and manner of entry
- Biographical information and personal characteristics
- The existence of a marriage/divorce and an applicant’s religion, political opinion, or sexual orientation
- Predictions of future events
Appeals to the Federal Circuit Court of Appeals
You have further rights of appeal if you are unsuccessful in front of the BIA. Federal immigration law requires that you take your case directly to the Circuit Court of Appeal (you will not begin at the district court level). The federal appeals court performs largely the same function as the BIA in that they do not hear your case from the very beginning but instead look for any clear error in facts or misapplication of the law to the facts.
You Need to Hire an Immigration Law Attorney for Your Case
Although you should have an immigration lawyer representing you throughout the process, the need for an attorney is even more critically important if USCIS is trying to take adverse action against you. Merely disagreeing with a judge’s decision will not be enough to win an appeal. Instead, you need to establish facts in front of an immigration law judge and then show exactly why they were wrong if you need to appeal your case further. If you do not already have an immigration law attorney representing you, now is the time to contact one.