Can you win an immigration appeal?

Can you win an immigration appeal?

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Applying for a visa, permanent residence, asylum, or adjustment of immigration status in the United States is a great step for any foreigner who wishes to reside legally in the country. It is expected that the outcome of the decision of the immigration authorities will be positive, especially when all the requirements are met.

However, there are varieties of situations, and rejections certainly occur. Given this, the risk of deportation is imminent, and we must act with haste and determination. When this happens, the ideal is to resort to an immigration appeal or motion.

The denial or revocation notification also generally includes information related to said procedures. But as specialists in the subject, and knowing its complexity, we indicate below everything you need to know and the general prognosis to understand how to act.

What is an immigration appeal?

As always, we will reference the US Citizenship and Immigration Services (USCIS), the leading agency in charge of immigration issues.

The verb to appeal means to resort to a person or institution to try to change a decision that was initially unfavorable or unfair. Based on this, when transferred to the immigration context in the US, it consists of requesting a different authority to review an unfavorable decision regarding the status of a foreigner who hopes to live in the country.

A wide range of immigration-related decisions can be appealed. This includes denials of visas, Green Cards, deportations, and asylum denials, among others. In fact, the controversial news recently emerged of the restrictions that the US 9th Circuit Court of Appeals would implement for people who visited another country to seek asylum, which could trigger unfavorable decisions.

Whether this or another, the appeal allows the applicant or immigrant to seek a review of their case when they believe that an error or injustice has been made in the initial decision. The causes behind the rejection are varied, as we indicated in a previous article, although crimes or circumstantial modifications applied by governments can be mentioned.

A good example occurred in October 2022 when the 5th Circuit Court of Appeals ordered a review of the modifications made by the Biden government to the DACA program from which so many young people benefit. Although this has countless success stories that we have highlighted on several occasions, by then, the fear was that these reviews would trigger a wave of deportations.

Entities to appeal unfavorable immigration decisions

Affected individuals ordered deported have some options to appeal USCIS decisions. Among them the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), an office within the Department of Justice (DOJ). Both the AAO and the BIA handle administrative appeals of different immigration cases.

Forms for an immigration appeal

Form I-290B, Notice of Appeal or Motion, is the basis for filing immigration appeals following a USCIS rejection. However, other alternatives will depend on the type of request previously made to the institution.

These are: Form I-130, Petition for Alien Relative; Form N-400, Application for Naturalization, together with Form N-336; Form I-694, Notice of Appeal of Decision Under Sections 245A or 210 of the Immigration and Nationality Act, for special immigrant workers, legalization and cancellation of personal resident status.

What is a motion?

In addition to the appeal term, there is the motion, which is a request to reopen or reconsider a decision unfavorable to the immigration case. This is the alternative for when you are not yet eligible to present the first mentioned.

Motion to reopen

This is a formal request filed with the office that issued an unfavorable decision in an immigration case. The purpose of this motion is for the office to review its original decision in light of new facts or relevant evidence that had not been previously presented in the process.

When talking about “new facts,” we refer to information or circumstances that had not been mentioned or considered in the initial procedure. Importantly, reiterating previously presented facts or resubmitting evidence already provided does not qualify as “new facts.” Furthermore, these new facts must be directly related to the issues raised in the motion.

For example, if your immigration application was denied due to a failure to respond to a request for evidence timely, you may file a motion to reopen if you can show that the evidence requested was not relevant, that the required evidence was initially submitted with the original filing, that you complied with the request for evidence or appearance within the allotted time, or that the request for evidence or appearance was not sent to the address on record.

Motion to reconsider

On the other hand, a motion to reconsider is a request filed with the same office that issued an unfavorable decision, but its approach is different. Instead of presenting new facts or evidence, a motion to reconsider requires the office to review its decision based on an alleged misapplication of immigration law or policy.

This is usually accomplished by presenting strong arguments supported by citations to appropriate statutes, regulations, or prior court decisions. Unlike a motion to reopen, no new facts or additional evidence are considered in a motion to reconsider.

How long is there to file a motion?

Motions must be filed within 30 days from the adverse decision’s issuance date. It is worth noting that this date does not necessarily coincide with the date on which the affected person received said information. This is why following up on any VISA, permanent residence, or asylum application is important.

However, on their website, USCIS also indicates they allow three additional days to the established 30 days when the decision has been mailed. However, for the extension of time to file the motion to be effective, it is necessary to validate the reasons for the delay, constantly arguing that these were beyond the immigrant’s control.

Where is a motion filed?

When a person receives a notice of denial or revocation, it will include helpful information for initiating appeal or motion processes. For the latter, it will include references on the forms to use, although this can be found in the Direct Filing Addresses for Form I-290B, Notice of Appeal or Motion section of the USCIS website.

How long does an immigration appeal take?

Theoretically, the AAO should review each appeal case within 180 days of receiving the complete file following the initial review. However, we know that various factors can influence this time limit. In fact, some cases may take longer, for example, due to a lack of documentation or depending on other entities because it is an atypical situation.

Is it possible to win an immigration appeal?

Winning a legal appeal is challenging, and statistics often paint a discouraging picture. For example, in California, appellate courts only overturn civil appeal rulings in approximately 20% of cases, which is a reasonably low percentage considering the complexity of the process. However, it is important to remember that each case is unique, and the chances of success may vary significantly.

Determining the actual chances of winning an appeal is a complex task that requires the experience and knowledge of an immigration attorney.

It is also worth recognizing that no one, from the beginning of the case, can predict with certainty the chances of success of an appeal. Each stage of the legal process presents challenges and variables, and often, the true strength of a case is only revealed as it develops.

The importance of specific advice for appeals

Both motions to reopen and to reconsider are crucial legal tools in immigration cases in the United States. These options allow applicants to rectify unfavorable decisions when they believe errors or injustices have been made.

However, it is essential to follow proper procedures and obtain competent legal advice when considering these options, as the requirements and deadlines can be complex and specific to each case.

In fact, the appeals process can be long and expensive, and not all immigration decisions are appealable. Additionally, rules and procedures may change over time due to changes in immigration laws and government policies.Therefore, seeking specific legal advice is essential if you are considering an immigration appeal in the US. Kannan Law has lawyers specializing in immigration to the US who are aware of the need for continuous updating. You can enter our contact section and tell us about your case.