New York Lawyer's Legal Updates

Lost Immigration Court Case: What To Do?

Author: New York Immigration Lawyer Alena Shautsova

Immigration Court Case

One always hopes that their case will be approved. But what if the case got denied? maybe you failed to present a compelling case due to the time restraints, life events, or poor work of your advisor; maybe you feel that you had a particular tough judge? Well, generally speaking, you will face three options. First, you may have a second chance with the Board of Immigration Appeals. You can file an appeal, asking for a review what happened below. A different judge then will be looking at your case. Second, you can file a motion to reopen, and third, you can file a motion to reconsider with the same court that made a decision in your case. There is a general 90 day- deadline to file a motion to reopen. Motions to reopen have numerical limitations, usually, one motion to reopen per tribunal. Filing a motion to reopen of a removal order does not provide an automatic stay of removal, unless the order was issued in absentia. Motions to reopen are discretionary: it means there is a subjective factor here in play: what if you or your attorney is not well liked by the tribunal… All these factors have to be taken into consideration when you are planning your next move. You can learn about motions to reopen here.

Now, you chose to file an appeal. Here, we will discuss the steps of BIA appeal process.

Deadline For Appeal

Deadline for appeal

When to file an appeal with the BIA: 30 days from an oral decision or date from a written decision by the IJ or USCIS. 30 days when the decision is issued, not when you actually receive the decision. There is no mailbox rules. This deadline is mandatory and jurisdictional. If you are running short on time, you can do the same day filing service from a third party providers. The Second Circuit Court of Appeals court decision also stated that the 30 day- deadline may be tolled Attipoe v. Barr, 945 F 3d 76 (2d Cir. 2019). ( This case involves a situation where a retained counsel failed to file a notice of appeal within the deadline, and the court tolled the deadline allowing the non-citizen to pursue the appeal).

Notice of Appeal

Deadline for appeal

To avoid a summary dismissal without an opportunity to brief your case, you need to put sufficient details in the notice of appeal. In other words, if you fail to outline the points you want to argue, BIA may simply close your case without giving you a chance to present your appeal.

When you are filling out the form EOIR -26 notice of appeal (, you have to do a good job elaborating your arguments. The good news is that you can reserve the right to address additional points. You will need to attach a copy of the decision and you will need to pay the filing fee as well, which can be paid online.

Briefing Schedule

Briefing Schedule

After your notice of appeal is filed, you will receive a briefing schedule, which will set the deadlines as to when you must present your detailed legal brief with compelling arguments. It may take several months for a briefing schedule to come if respondent is not detailed. It is possible to ask for a briefing extension of 21 days, but it is best not to do so of course, as the appeal takes a very long time as is.

As a rule, there will be only one chance to present your arguments in your initial brief, as BIA does not accept reply briefs unless a special motion is filed and granted. So, you have to do your best at your first try!

Prosecutorial Discretion, New Relief: Possible Motions With Bia While The Appeal Is Pending

After your brief is filed, all you need to do is to wait, unless, of course, something happens. You may ask for a prosecutorial discretion even if your appeal is pending. You also may be qualified for a new relief that it was not available before; you may face changed circumstances in connection with a possible asylum claim. All these grounds may serve as a ground for various motions with the BIA.

Bia Decision: What’s Next?

Now, a long time passed and you receive your decision. If it is a positive one: congratulations! But what if it is not? Next, you will be able in many cases to pursue a petition for review in a federal court. However, there are limitations here as to what the court may review:

Guerrero-Lasprilla v. Barr, 2020 U.S. LEXIS 1907, 2020 WL 1325822 (U.S. Mar. 23, 2020) addresses the scope of judicial review available in petitions for review of removal orders filed with the U.S. courts of appeals. The Court found that 8 U.S.C. § 1252(a)(2)(D)’s preservation of review of “questions of law” includes review of mixed questions of law and fact, including the application of law to “undisputed” or “established” facts. See Guerrero-Lasprilla v. Barr, Nos. 18-776, 18-1015, Slip Op. at 4 (Mar. 23, 2020). Thus, for claims that would otherwise be subject to the jurisdictional bars at § 1252(a)(2)(B) (barring review over certain discretionary decisions), § 1252(a)(2)(C) (barring review for those removable for certain criminal convictions), or provisions limiting or eliminating judicial review in the Immigration and Nationality Act, the Court held that § 1252(a)(2)(D) preserves review over the proper application of law to settled facts.

We hope that your case will be approved, but if you ran into a wall of denial, please give us a call and we will be happy to help: 917 885 2261.

28 November 2022
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