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A brief overview of Immigration Appeals

Right to automatic appeal from an original order of removal

What happens if a person loses their case in Immigration Court? If an application is denied, there is an automatic right to appeal to the Board of Immigration Appeals.

Automatic stay of removal from an original order of removal

This means that any original order of removal that a judge would issue is stayed or stopped until there is a decision on the appeal. During the time that the original order of removal is stayed, the applicant does not have to worry about being deported immediately.

30-day filing deadline for notice of appeal

The notice of appeal must be received by the Board of Immigration Appeals, BIA, within 30 days of the date of the Judge's order. There must be a stamp on the notice of appeal from the BIA that reflects that the notice of appeal was received and filed by the BIA within 30 days of the date that appears on the Judge's order.

Deadline not extended if decision received by mail

There is no grace period or extension of time within which to file the notice of appeal if the judge's decision is received by mail. If the appeal is received after 30 days from the date of the decision has expired, the applicant loses the right to appeal.

The contents of the notice of appeal

The notice of appeal must contain all the issues that are being raised on appeal. If an issue is not raised in the notice of appeal, it is deemed waived. After the notice of appeal is filed, you will receive a receipt confirmation that the notice of appeal has been filed. About 3 weeks after the notice of appeal is filed, the attorney will receive a transcript of proceedings, which is part of the record on appeal. There will also be issued a scheduling order that will dictate the dates on which the brief on appeal is due. The brief is then submitted and then you wait for a decision.

Motions to remand while a case is pending before the BIA

While the case is on appeal, the applicant can get their case back to the judge who decided the case if there is new evidence or new relief available to the applicant. If new evidence is discovered, the applicant must show that it is material and was previously unavailable. A motion to remand is submitted to the BIA. The applicant must explain why the evidence was not previously available, for instance, there may be a new witness to the instances that make up the basis of the claim who only recently entered the United States. On the other hand, the applicant may be eligible for new relief or a different application may be submitted. In this case, the applicant must submit the new application and supporting evidence with the motion to remand. For instance, the applicant may have recently married a United States citizen.

If you or a friend or family member is in need of a lawyer for an immigration appeal or want an opinion on an existing case, please contact our office.

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