by Eric A. Misener, Esq. and Neil F. Lewis, Esq.

eric@neilflewis.com or neil@neilflewis.com

The Board of Immigration Appeals is the administrative body that handles appeals of decisions rendered in Immigration Courts. It is located in Falls Church, Virginia and handles appeals from Immigration Courts from every state in the U.S. It is the last step (other than filing a separate action in a U.S. Circuit Court) an alien can take to challenge an order of removal. Some aliens want to appeal to challenge the Immigration Judge’s decision, in some cases a mistake was made at the Immigration Court level, and in some cases alien’s want to appeal to avoid the end of their case, knowing that the end of their case means that their removal is imminent.

An alien ordered deported has 30 days from the date of the Immigration Judge’s decision to properly file a Notice of Appeal with the Board of Immigration Appeals. The Notice of Appeal is filed with a $110 filing fee and needs to contain the specific issues which the alien believes were wrongly decided by the Immigration Judge. The issues asserted by the appellant in the Notice of Appeal are important because a single member of the board can issue a Summary Dismissal (basically a summary denial of an appeal) if that member determines that there is no appealable issue raised in the Notice of Appeal. If you miss the 30 day deadline (absent unusual circumstances) the order of removal entered by the Immigration Judge becomes final and your right of appeal is lost.

If you think you have an issue to appeal, or want to explore the possibility of appeal, it is a good idea to seek a consultation with a qualified immigration attorney. The first thing that attorney should do is determine whether there is an issue in your case that will allow you to go forward with your appeal. If there is not, you may be better off no appealing your case. If there is an appealable issue, the attorney should be able to draft the notice of appearance in such a way that your appeal will be accepted. After the appeal is accepted, at some point in the future a briefing schedule will be set, and the alien and the government will each submit a brief. This process can take as little as two months to a year or longer. While the appeal is pending, any order of removal is not final, and generally the alien’s custody situation will remain the same as it was in Immigration Court.

If an appeal is granted, often the Board will remand the case to the Immigration Judge for further action consistent with their instructions. This may mean more hearings. If the appeal is dismissed, the order of removal becomes final, and the alien will likely be deported. From the date of denial of the appeal to the Board of Immigration Appeals, you have thirty days to appeal to the U.S. Circuit Court with jurisdiction over your place of residence (the 11th U.S. Circuit Court of those of us in Tampa).

It is important to note that the government has a right of appeal as well, although this right is infrequently exercised. If this happens it is very important that the alien seek the help of an attorney so that their side of the appeal will be heard.