THE order of an Immigration Judge to remove an alien can be appealed to the Board of Immigration Appeals (BIA). If there is strong argument in favor of the alien, the BIA will send the file back to the Immigration Judge to reconsider its decision.
Question: What are the cases that may be appealed to the BIA?
Answer: The following may be appealed to the BIA:
Denial of a family based petitions.
Decisions by an Immigration Judge in exclusion cases, removal proceedings, asylum proceedings and waiver request that is denied by the Immigration Judge.
Question: How does the BIA review a case filed on appeal?
Answer: The BIA reviews questions of "law, discretion, and judgment" affecting an alien "de novo" or taking a new look at the case. Questions of law include what specific statutory or case law applies to the case. However, if the question is about facts of the case (what is an alien’s personal circumstances), the BIA defers to the Immigration Judge’s factual and discretionary findings, including finding on credibility unless they are clearly erroneous.
Question: What is the scope of review by the BIA on denial of an I-130 petition by USCIS officers?
Answer: The BIA may review all questions of fact or law "de novo" or taking a new look on decisions rendered by USCIS or DHS officers. If an immigrant petition Form I-130 is denied, the BIA may look at the application of law and the existing facts as if the petition is newly submitted to them for review.
Question: When should an appeal to BIA be filed?
Answer: The Notice of Appeal (Form EOIR 26) must be filed within 30 days of the oral decision of the Immigration Judge or the mailing of the written decision. It must be received at the EOIR clerk’s office within that 30-day period. If the 30th day falls on Saturday, Sunday or legal holiday, the due date falls to the following business day. If the appeal is not filed within the specified time, the decision of the Immigration Judge becomes a final decision.
Question: What should an alien do so that the case will have a better chance of getting approved on appeal?
Answer: Cases on appeal are decided solely on the basis of the "record" in the case. The records include only those materials offered by the alien and admitted by the USCIS or the Immigration Judge.
Hot news of the week
We again have successfully obtained a waiver of fraud or misrepresentation in Immigration Court for a green card holder who entered as single but is actually married. The green card holder who has been in the United States for 17 years has a mother who is a US citizen.
We have just received approval from Administrative Appeals Office of I-601 Waiver. The applicant entered with an assumed name but she has a US citizen spouse and a US citizen child. The I-601 waiver application was initially denied by the USCIS District Office but the denial was reversed on appeal. She now has received her green card.
Green cards without expiration date should be renewed. They have the alternative of applying for naturalization. Please call our office for questions about renewing green cards.
Tips of the week
Waiver for misrepresentation at the time of entry (entered as single but is actually married) may be waived if you have a parent, spouse, son or daughter who is a US citizen or lawful permanent resident. Once approved you may be eligible for naturalization. You should apply now before your personal situation or the law is changed.
Denied adjustment of status and Naturalization applications are now being sent to the Immigration Court.
Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. Our office assists clients in obtaining ITIN.
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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. He earned his Juris Doctor at Western State University in Fullerton, California. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188.
( Published on November 26, 2008 Asian Journal Los Angeles p. B3 )
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