If you are in the United States illegally, or have done something to violate the terms of your visa, green card, or other lawful status, you'll probably be placed into removal (deportation) proceedings in U.S. Immigration Court, also called the Executive Office for Immigration Review (EOIR).
In the court hearings, you can be represented by your own lawyer and present any rebuttals or defenses to the charges that you should be removed. If this doesn't go well, however, the Immigration Judge (IJ) may, at the close of your final hearing or soon after, issue an order of deportation.
The important thing to know is that you can, if you have legal grounds upon which to do so, appeal your case and fight deportation to your home country. Between approximately 30,000 and 40,000 people appeal their immigration court decisions every year. Some who are in the U.S. with no legal status at all emerge from their appeal with a right to remain, or a green card.
Whether or not it makes sense to appeal your case depends upon what you were alleging or requesting in the first place. An appeal is not just a second chance for someone to consider your case. You must have a rational basis upon which to argue that the IJ made a legal error, which is the key thing you will be attempting to prove in an appeal. You will not be allowed to submit new evidence.
If, for example, you requested asylum and the judge made what you believe is a mistake in not acknowledging that you were part of a particular social group, (a complex subject within asylum law), an appeal might make sense.
But if you were placed into deportation proceedings because you committed a crime that makes someone deportable, and you are clearly guilty of that crime with no real argument to make about it, there may (unless your attorney can come up with an especially creative argument), be no point in filing an appeal.
There are also some matters the B.I.A. simply cannot take on, such as appeals of deportation orders made in absentia (where the immigrant failed to show up).
In any case, your chances of success are greatly improved if you get a lawyer's help in analyzing whether an appeal is worthwhile and in preparing the arguments.
You must act quickly if you wish to appeal your case. You have only 30 calendar days after the IJ’s oral decision (if it was given in court) or after the date the IJ’s written decision was mailed to you (if the judge didn't issue an oral decision) in which to not only send your Notice of Appeal to the Board of Immigration Appeals (B.I.A.), but assure that it arrives there.
Like the immigration court, the B.I.A., comprising up to 21 people at a time, is part of the U.S. Department of Justice, not the Department of Homeland Security. That means its decisions are made independently. Most cases are decided by only one B.I.A. member.
Procedures for filing an appeal with the B.I.A. are laid out in the B.I.A. Practice Manual. The first step is to file a Notice of Appeal (Form EOIR-26), which is available on the Forms page of the DOJ website. You must mail or give a copy of the completed Notice of Appeal (and any attached documents) to the attorney who represented the U.S. government at your hearings, and you must advise the B.I.A. that you did this by including a “Proof of Service."
There is a filing fee ($110 in 2018), which you must pay by check or money order, made out to “United States Department of Justice.” Put your name and Alien Number (A-number) on the check. The B.I.A. currently won't accept cash, credit cards, or other electronic types of payment.
Form EOIR-26 asks you whether you plan to file an additional written brief or statement later. It's a good idea to do so (with your attorney's help). The B.I.A. will, after receiving your Notice of Appeal, send you a deadline for submitting your brief.
The B.I.A. is located in Falls Church, Virginia, which is probably far from where you are. But you won't likely need to travel there. It's rare for the B.I.A. to ask to hear oral arguments on an appealed case. Ordinarily, it does what's called a "paper review" and then issues a written decision.
If the B.I.A. is convinced by your arguments, it may overturn the judge's decision and grant your request for relief. Or, it may send the case back to the IJ ("remand" it) for additional hearings or a decision, particularly if it's not sure, and the answer depends on factual matters. A remand will mean you have to attend court again, before the same IJ, though quite possibly for a briefer hearing than before.
If the B.I.A. rejects your appeal, you can, under some circumstances, continue on with your appeal to the U.S. federal court of appeals for your jurisdiction. This involves much more extensive paperwork and potentially will require your lawyer to appear in person. Speak with an attorney to find out more about appealing your deportation decision in federal court.
The law surrounding immigration and deportation is highly complicated. Plus, the facts of each case are unique. This article provides a brief introduction to how to file an appeal. For more detailed, specific information, please contact an immigration lawyer, if you haven't done so already. (It's not too late to hire one, though ideally one should hire do so earlier, for the immigration court proceedings.)
Here are some questions to ask a prospective attorney:
