"I want to appeal my order of deportation by the immigration judge--What
considerations should I be aware of?"
First, if you have an
order of deportation by an immigration judge you are well-advised to seek competent counsel
immediately. The immediacy is due to the fact that you
only have 30 days for the notice of appeal (EOIR-26) to be
received by the Board of Immigration Appeals (BIA). Notice we did not say
mailed by but
received by the BIA. You or your attorney must closely review the instructions to Form
EOIR-26 and make sure the form is carefully filled out. Moreover, the
form contains a space for the reasons for the appeal and you should meet
with counsel to determine appropriate reasons for appealing your decision
from the immigration judge.
Appeals can be tricky because there may be several distinct reasons for the
appeal. There can be factual and also legal errors made in the court below. Moreover,
there can be discretionary decisions made below. In addition, situations
arise concerning the type of claims raised and there may changed circumstances
or other ancillary issues which need to be brought up on appeal. How you
present your appeal in the notice of appeal is crucial. Furthermore, because
some appeals may be summarily dismissed if key issues are not set forth
the preparation of the notice of appeal is key. If insufficient reasons
exist for appeal, then your case can be summarily dismissed.
Appeals are also difficult because of the types of relief granted below.
For example, some respondents have been granted voluntary departure. Depending
on the type of voluntary departure a respondent may have waived his or
her right to appeal. Even if they did not waive appeal, some people may
be hesitant to appeal, believing they are giving up a chance to leave
the U.S. voluntarily. Nevertheless, there are ways to preserve this right
and still pursue the voluntary departure even if appealing the underlying
decision denying other forms of relief below.
Once the notice of appeal is correctly filed, and fee paid or waived, then
the BIA will provide you or your attorney with the written transcript
of proceedings. Once a transcript is received, you and your attorney will
further discuss your testimony before the
immigration court. Specifically, any issues which were incorrectly decided, not preserved
for appeal, or not brought up sufficiently either through testimony or
evidence must be determined. It is not enough to rely on just the applications
or other written materials submitted to the judge below, but the transcript
must be closely reviewed and evaluated.
Once the transcript has been received, your attorney will begin preparing
the appellate brief. An appellate brief is a written legal argument. Depending
on the complexity of the issues, an appellate brief can be relatively
short or, in certain cases, be very involved and lengthy. Your attorney
must also consider and speak with you about any other ancillary considerations
which go along with filing the appellate brief, such as possible motions
to remand, submitting further evidence on appeal where appropriate, and
the submissions of other pleadings to the BIA. Depending on the time frame,
a motion to reopen in lieu of an appeal may be called for.
Be aware that many times, especially in non-detained cases, the appeals
before the BIA take many months. We have seen cases which have taken longer
than that. Be aware also that your attorney can check the status of your
case after the appellate brief has been filed. If the government has filed
a responsive brief, in appropriate cases, there is the option to request
permission from the BIA to file a reply brief.
Finally, be sure you do not delay in making decisions concerning your potential
appeal. Be sure that you do not waive any issues before appeal. Be sure
that you or your attorney preserves the right to appeal at the conclusion
of proceedings. Seek competent counsel especially to determine the next
steps in the event your appeal is denied. In certain cases, you may be
able to pursue a further appeal to the appropriate circuit court of appeals
or afterwards even the U.S. Supreme Court.
The Modi Law Firm represents clients in all types of immigration cases
Contact the attorneys to learn how they can help with your situation.