In the immigration system, there are a number of different types of appeals that you can take if you are not satisfied with the decision in your case. How you can appeal will depend on where your case started (what agency) and what has happened so far.
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If you were in removal proceedings and are appealing a decision from an immigration judge denying your application for relief – your appeal will be filed with an agency called the Board of Immigration Appeals. The Board of Immigration Appeals – or BIA for short - is located in Virginia and handles all of the immigration court appeals for the entire country. If your case is denied by the immigration judge, you will have thirty days to file an appeal with the BIA. They will prepare the transcripts of your hearing in order for the appellate judges to understood what happened and you have the opportunity to make legal arguments in order to convince them that the immigration judge made a mistake. Immigration appeals at the BIA are not easy to win and oftentimes less than 15% of cases win on appeal. However, you are entitled to remain in the country while your appeal is pending and may be able to retain certain benefits like your employment authorization.
If the BIA denies your case, you can choose to file something called a Petition for Review in Federal Court. The Federal Court that controls the area where your immigration hearing took place will consider the decision of the judges at the BIA to determine if there was any type of legal error. Presenting a case in federal court is very complex and you must follow all of the procedural rules in place for the Circuit Court. If you choose to use an attorney, the attorney must be licensed in the Circuit Court where you will present your case.
USCIS hears a variety of cases and oftentimes had the ability to make the final decision on a case. Some cases cannot be appealed at all.
If your family filed an I-130 Petition for you and it was denied by USCIS you have the right to appeal that denial to the BIA. Prior to making the decision to appeal you can consider whether it is more time efficient and cost effective to just refile the I-130 with USCIS.
If either one of these applications are denied you do not have a right to appeal the decision. The only option you have is to request the right to have an immigration judge review the decision and hopefully come to a different decision than USCIS. This comes with risk as it requires you to be placed in removal proceedings. Again, you have to decide if it is more time efficient and cost effective to just refile with USCIS (if the circumstances allow it).
If you have another type of application that is denied by USCIS your case would be appealed to the Administrative Appeals Office (AAO) which would review the file, the decision, and any argument or evidence you present as to why the USCIS officer’s decision was wrong. These appeals are not heard by judges, but instead by immigration officers.
What happens Happens if your case was denied because you forgot to file something, you filed the wrong evidence in response to a Request for Evidence, or USCIS made an error?
In that case, you can file a Motion to Reopen or Reconsider with USCIS and include the legal argument of why they were wrong or file the new evidence that should have been submitted originally. But, you have to do it quickly – you only have 33 days to file!
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