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BIA & Federal Litigation
In removal proceedings, either the foreign national or the government may appeal various decisions of the 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 (DOJ). The DOJ is a separate federal agency from the Department of Homeland Security (DHS). The US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) are part of the DHS.
What Does the BIA Do?
THE BIA EXERCISES APPELLATE JURISDICTION OVER VARIOUS TYPES OF IMMIGRATION ACTIONS, INCLUDING:
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Decisions in removal proceedings.
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Relief from removal.
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Waiver applications.
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Bond, parole or other detention determinations.
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Cancellation (rescission) of adjustment of status.
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Denial of I-130 family-based visa petition.
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In some cases, its decisions are subject to judicial review by the federal courts.
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How Does the Appeal Process Work?
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 at issue. The foreign national should strictly adhere to specified deadlines and procedures. Missing the filing deadline will in most all cases result in losing the right to appeal. Likewise, failing to follow other appeal requirements and deadlines may result in dismissal of the appeal. The BIA may dismiss an appeal that is frivolous or filed solely for delay.
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Filing an appeal will normally stay removal pending the adjudication of the appeal. Some decisions of the BIA may be reviewed by a US Court of Appeals through a Petition for Review. Additionally, some Immigration Court and BIA decisions may be challenged via a Petition for Writ of Habeas Corpus with a US District Court.
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How Are Federal Courts Involved?
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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) significantly limited judicial review in immigration cases. For example, 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 allowed, the location of the immigration court where the removal proceedings took place determines which US Circuit Court of Appeals has jurisdiction over the case.
The Petition for Review must be filed in the US Circuit Court of Appeal with jurisdiction over the case. As with a Notice of Appeal to the BIA, a Petition for Review with the US Court of Appeals requires strict adherence to deadlines and procedure. Missing deadlines or failure to follow requirements will preclude consideration of the appeal or result in the dismissal of the appeal.
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What Should I Do if I Would Like to Appeal?
Appeals to the Board of Immigration Appeals (BIA) and to the federal courts require detailed knowledge of both important court decisions and interpretations of the immigration laws. At Antonini & Cohen, we have a wealth of experience and success in federal courts, including US District Courts and US Circuit Courts of Appeal. We strongly recommend that you consult with one of our experienced appellate attorneys if you are considering an appeal or federal court case. Please contact us or call us at 404-850-9394.