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Immigration Appeals: So your case has been denied--what happens now?

August 26, 2016

Chances are that unless you are an immigration lawyer or a judge or a litigant in trouble (or have a family member who is), you have little knowledge of the vast system of immigration proceedings and appeals in this nation.  Today there are over 500,000 immigration cases pending in the nation's immigration courts (and this is not even including non-court cases such as applications for benefits pending before US Citizenship and Immigration Services).  It should come as no surprise that a lot of those cases will lose: individuals will be ordered deported and their applications for relief from removal will be denied.  So now what? 

 

A litigant in immigration court has only 30 days after the immigration judge's final decision to file a "notice of appeal" with the Board of Immigration Appeals, an administrative appellate body located in Falls Church, Virginia.  If the notice of appeal is timely filed, the Board will issue a briefing schedule.  Your attorney will then have the opportunity to file a written brief with the Board explaining why the judge was wrong in denying the case.  The trial attorneys of the Department of Homeland Security will also typically file a brief arguing why the immigration judge was right.  The Board usually renders a decision in about five months.

 

If the Board's decision agrees with the immigration judge, then you have 30 days to file a "petition for review" with the federal circuit court of appeals with jurisdiction over your immigration court.  The federal circuit appellate courts are some of the most powerful in the nation, second only in hierarchy and prestige to the U.S. Supreme Court.  The circuit court will also issue a briefing schedule and you will get a chance, again purely on paper, to argue why both the immigration judge and the Board were wrong.  The circuit courts deny a lot of petitions for review; however, if they think you might be right, they will sometimes request oral argument in which the parties--in this case, your attorney and a representative of the Office of Immigration Litigation, part of the U.S. Department of Justice--get a chance to stand before a panel of judges and argue for or against your case.

 

 

The appeals court will then issue a decision.  If the results are interesting or novel and the case is well-argued, the court will sometimes issue a "published" or "precedential" decision, one in which the judges analyze the issues extremely thoroughly in a written opinion that they will then rely on in making future decisions.  For a good example of a recent published decision in a case in which Senior Attorney Sheridan Green presented oral argument and got a decision of the Board reversed by the Fifth Circuit Court of Appeals, see Samuel Gomez v. Lynch, ---F.3d---, 2016 WL 4169123 (5th Cir. Aug. 5, 2016).

 

If you lose at the court of appeals, you only have one appeal option left: the U.S. Supreme Court.  Requests for review to the U.S. Supreme Court are made on what is called a petition for certiorari or a "cert. petition."  Unlike the lower courts, the Supreme Court gets to choose whether it will even hear your case. The vast majority of cert. petitions get rejected.  For a good example of a case in which Senior Attorney Sheridan Green wrote a cert. petition that was granted by the U.S. Supreme Court (a case we also went on to win), see Mata v. Lynch

 

The Supreme Court is an area of law unto itself and will be the subject of another blog post.  However, the takeaway is that appeals are special.  They require an immigration attorney specifically experienced in appeals who writes extremely well.  Many immigration attorneys have practiced thirty years (and may even be good in court) and have never briefed a case before the BIA.  Most have very little experience before the circuit courts of appeals, and only a select few have gotten cert. petitions granted by the Supreme Court.  We are different.  We have briefed hundreds of cases before the BIA, nearly sixty before the appeals courts, and have briefed multiple cases before the Supreme Court. We urge you to educate yourself regarding the appellate process and choose an experienced appellate attorney for any appeal of your immigration matter.

 

 

 

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