Appeals and Motions before U.S. Citizenship and Immigration Services (USCIS)
Sometimes a case may be improperly denied, or denied after certain arguments may not have been presented at the time the application was adjudicated. Typically, you have only 30 days to appeal the denial or to file a motion to reopen or reconsider, so it is essential to act quickly. If your case was denied by U.S. Citizenship and Immigration Services (USCIS), we recommend providing a copy of the denial to a knowledgeable immigration attorney as soon as possible so they have as much time as possible to file an appeal.
Certain USCIS decision may be appealed to the Administrative Appeals Office (AAO), while others are appealed to the Board of Immigration Appeals (BIA). The denial or revocation notice will provide information about whether the decision may be appealed and where to file the appeal. Certain USCIS decisions may not be appealed at all, but they may be eligible for a motion to reopen and/or reconsider.
A USCIS motion is a request to the USCIS office that issued the unfavorable decision, and requests they review their own decision. With certain exceptions, an applicant may file a motion to reopen or a motion to reconsider if they received an unfavorable decision. Additionally, a motion to reopen and/or reconsider may be filed where the Administrative Appeals Office (AAO) issues an unfavorable decision, and denies an appeal.
Unlike appeals, which ask a different authority to review and reverse a decision, motions to reopen and/or reconsider request review by the authority that issued the latest decision in the proceeding. A motion to reopen is based on documentary evidence of new facts, while a motion to reconsider is based on the incorrect application of law or policy within the prior decision, and is not based on new facts or evidence. Regulations for motions to reopen and motions to reconsider are located at 8 C.F.R. § 103.5. A motion to reopen and a motion to reconsider may be filed at the same time.
Motions Before the Immigration Court and Board of Immigration Appeals
Motions are requests that the Immigration Judge or Board of Immigration Appeals (BIA) take certain action on a case. Common motions before the Immigration Court and BIA include motions to change venue, motions to advance a hearing, motions to recalendar a case, motions to administratively close proceedings, motions to terminate proceedings, and motions to reopen or reconsider. Motions may be made jointly with the U.S. Department of Homeland Security (DHS), they may be filed as unopposed by DHS, or they may be filed by the respondent alone. When a respondent files a motion alone, DHS is given ten days to file a response. The same rule applies when DHS files a motion – the respondent will have only ten days to respond.
Appeals to the Board of Immigration Appeals (BIA)
If an Immigration Judge denies an application for relief or request for bond, the respondent has the right to file a Notice of Appeal with the BIA within 30 days of the Immigration Judge’s decision. The notice must include all of the required information including detailed reasons for the appeal, the applicable standards of review, and the filing fee or fee waiver. If the appeal is not received in time, the Immigration Judge’s decision will become final. Someone who is detained and files an appeal will remain in detention while the appeal is pending with the BIA, but they cannot be removed (deported).
Once the BIA receives the Notice of Appeal, they will issue a receipt. Later, a briefing schedule will be issued, identifying a date by which a brief must be submitted to the BIA. It may take several months, sometimes even years, from the time the brief is submitted for the BIA to issue their decision. If a respondent departs the U.S. while their appeal is pending with the BIA, the appeal may be considered abandoned and the Immigration Judge’s order of removal would become final.