BIA and Federal Court Litigation

Appeals to the Board of Immigration Appeals and to the Federal courts require detailed knowledge of both important court decisions and interpretations of the immigration laws. Therefore, we recommend that a petitioner considering an appeal consult with an experienced immigration attorney.

Board of Immigration Appeals (BIA)

In removal proceedings, either the foreign national or the government may appeal various decisions of an Immigration Court to the Board of Immigration Appeals (BIA). The BIA is part of the Executive Office for Immigration Review, a division of the Department of Justice. The Department of Justice is a separate federal agency from the Department of Homeland Security (DHS). The United States Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) are part of the DHS.

The BIA exercises appellate jurisdiction over various types of immigration actions, including: decisions in removal proceedings; relief from removal; waiver applications; bond, parole or other detention determinations; and rescission of adjustment of status. In some cases, its decisions are subject to judicial review by the Federal courts.

To begin the appeal process, the foreign national must file a Notice of Appeal with the BIA within 30 days of the date of the decision. The foreign national should strictly adhere to specified deadlines and procedure. Missing deadlines or failure to follow requirements may preclude filing of the appeal or, if filed, result in the dismissal of the appeal. The BIA may dismiss an appeal that is frivolous or filed solely for delay.

In some cases, filing an appeal will stay removal pending the adjudication of the appeal. Some decisions of the BIA may be reviewed by a U.S. Court of Appeals through a Petition for Review. Some Immigration Court and BIA decisions may be challenged via a Petition for Writ of Habeas Corpus with a U.S. District Court.

Federal Court Litigation

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) significantly limited judicial review in immigration cases. For example, the Federal courts have no jurisdiction to review decisions in expedited removal proceedings, denials of certain forms of relief, and cases involving certain criminal offenses.

If judicial review is permitted, the location of the Immigration Court where the removal proceedings took place usually determines the U.S. Circuit Court of Appeals in which the Petition for Review will be filed. As with a Notice of Appeal to the BIA, a Petition for Review with the U.S. Court of Appeals generally requires strict adherence to specified deadlines and procedure. Again, missing deadlines or failure to follow requirements may preclude filing of the appeal or if filed, result in the dismissal of the appeal. Unlike many BIA appeals, the filing of a Petition for Review does automatically stay (prevent) the removal. If the U.S. Court of Appeals affirms the order of removal, in some cases, the petitioner may appeal to the U.S. Supreme Court.