Board of Immigration Appeals (BIA)

The Board of Immigration Appeals (BIA), located in Falls Church, Virginia, has jurisdiction to review the decisions of Immigration Judges.  At the conclusion of a case before the Immigration Court, either side can reserve appeal. The appeal must be filed within 30 days of the immigration judge’s decision.  Generally, appeals to the BIA are made in written briefs submitted by mail to the court.  Although the BIA can permit oral arguments, this rarely occurs.  Because the decision by the BIA is the final decision of the agency an appeal to the BIA is often the last chance to achieve a positive decision from the court.

Always clearly explain your reasons for appeal

In all appeals, you need to explain why you think the Immigration Judge made the wrong decision. You need to make arguments that focus on the reasons the Judge gave in his decision: Why did he or she deny your case?

*Did the Judge misunderstand something important?

*Did the Judge not take something important into consideration?

*Did the Judge disbelieve you?

*Do you think there was something fundamentally unfair about the hearing?

*Were you not allowed to tell your whole story?

*Did the Judge make a mistake in applying or interpreting the law?

What comes next?

The BIA will send you a written transcript of your hearing. The transcript will have the entire hearing transcribed, i.e. the judge’s questions, the lawyer’s questions, your answers, etc. Your immigration attorney will review the transcript for reasons to support your argument, in case the Judge got something wrong, or misapplied the law.

Next, a briefing schedule will be scheduled (if you said you would submit a brief). You will normally be given thirty days to file your opening brief. The opposing counsel will also be given thirty days to file a reply. This period can be extended to ninety days if good cause is shown. After going through the submissions of both parties — which can take months or years — the BIA will make a decision on your appeal.

The office of The Law Office of Tatiane M. Silva, P.A. understands the importance of pursuing the strongest legal argument in all briefs submitted to the BIA

Federal Litigation

If the applicant again loses before the Board of Immigration Appeals (BIA), their only remaining recourse is to file a petition for review in the federal Court of Appeals in the circuit in which the case was originally tried.

The filing of a petition for review does not provide an automatic stay of removal.

Immigration and Customs Enforcement (ICE) may deport an individual as soon as the BIA issues its order; ICE need not wait until the 30-day period for filing a petition for review has expired.

Therefore, it is recommended to file for a stay of the removal order pending the petition for review. Obtaining a judicial stay is necessary to prevent petitioner’s removal from the country. If the court orders the stay of removal, the stay remains in place until the court’s final order is issued.

Under the traditional standard for stays, the court will consider:

(1) whether the stay applicant has made a strong showing that he/she is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.

When to file a Petition for Review

Petitions for review of BIA decisions must be filed within 30 days of the issuance of the BIA decision. However, where there is an earlier deadline that may affect deportability, such as a shorter period of voluntary departure, the petition must be filed prior to that time.

Immigration-related federal court litigation is significantly different from litigation in the immigration courts, proceedings before the USCIS, or practice before the Board of Immigration Appeals.

In addition to challenging the final agency decision of the BIA, federal courts can be used to challenge:

  1. the USCIS’ unreasonable delay in adjudicating an application or petition
    • If you have filed a benefits application, such as an adjustment of status (green card) or a naturalization application, and if you have already been interviewed, but have been waiting an unreasonably long time for a decision, you can begin litigation in federal court against the USCIS by filing a mandamus to force a prompt adjudication. You are entitled to have your benefits application adjudicated and the USCIS is required to adjudicate applications in a reasonable time.  Litigation in federal court can lead to a resolution in matter of weeks or months.
  2. the USCIS’ denial of an application for naturalization
  3. the unlawful detention of someone in immigration custody
  4. a removal order on legal or constitutional grounds.

Our deportation defense attorneys have the expertise to file mandamus, habeas corpus, and other types of cases in Federal District Court.


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