The United States Immigration Service makes many decisions about requests from would-be immigrants for citizenship, temporary work status, finance visas, and other requests that can affect a person’s life for many years. Most decisions on requests for immigration status or change in status are made by members of the State Department consular staff in a U.S. embassy or consulate. What can a person do if the initial decision is adverse? Say, if an application for citizenship or a green card is denied? Most initial immigration decisions can be appealed, but the path for such appeals is not always clear. In this post, we will provide a summary description of various appeal options.
Three layers of decision making
For most petitions, the immigration statutes and regulations provide three layers of decision making. The first level is the initial decision on the application made by a consular officer or state department employee. The second level of decision-making – and the first level of appeal – is to the Board of Immigration Appeals (BIA). An adverse decision on most petitions can be appealed to the Board of Immigration Appeals. The BIA is the highest ranking administrative body for interpreting and applying immigration laws. Its decisions are binding on all Department of Homeland Security officials and Immigration Judges unless the decision is subsequently modified or overruled by the Attorney General or a federal court. Most of the appeals reaching the BIA involve orders of removal and applications for relief from such orders.
Judicial review
Virtually all decisions made at the first two levels of decision making described above, including decisions of the BIA, can be reviewed in federal district court. The person seeking review must file a petition for review in federal district court within 30 days after the date of the decision being appealed. One important exception to the previous statement is cases called “expedited removal.” Immigrants removed from the U.S. by this procedure generally cannot appeal the decision to deport them. Federal judges generally attempt to carefully consider the cases before them and to correct the errors commonly made by officials in the customs bureaucracy.
Anyone who is aggrieved by an immigration order may wish to seek the assistance of an attorney who is experienced in immigration law. A knowledgeable attorney can provide an evaluation of the evidence in the case and provide an opinion on the likelihood of overturning the original decision.
