BIA & Federal Litigation
Either party, the foreign national or DHS, in removal proceedings may appeal the decision of an immigration judge 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 DECISIONS MADE BY USCIS AND THE IMMIGRATION JUDGES, INCLUDING DECISIONS REGARDING:
Deportation in removal proceedings.
Relief from removal.
Bond, parole or other detention determinations.
Adjustment of status.
Denial of I-130 family-based visa petitions.
In some cases, the BIA’s decisions are subject to judicial review by a US District Court or US Circuit Court of Appeals.
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 immigration judge’s decision. 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.
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.
Can I Sue the Government for a Bad Decision or Their Failure to Decide My Case?
USCIS and the US State Department often make erroneous decisions on cases as well as take an unreasonable amount of time to decide cases. In certain situations, an applicant may sue the government under the Administrative Procedure Act. The basis for these types of actions include the government’s: failure to adhere to the law or their own regulations, policies, or procedures; unreasonable delay in adjudicating an application; or violation of a provision of the US Constitution such as due process or equal protection.
How Are Federal Courts Involved?
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.
What Should I Do if I Would Like to Appeal or Sue the Government?
Appeals to the Board of Immigration Appeals (BIA) and to the federal courts, as well as suing the government over a wrongful decision or a failure to render a decision 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 US 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.
The content of this website is intended to convey general information and not to provide legal opinions or advice.
It is not intended to serve as legal advice.