Asian Journal- The Filipino-American Community Newspaper

THOUSANDS of individuals each year are found removable from the US by Immigration Judges and, in many cases, denied any relief from removal. These days, virtually one out of every three clients I consult come in to my office with such an order from, an Immigration Judge, wondering what to do next. In the vast majority of these cases, the person had applied for some form of relief from removal, such as asylum, and the Immigration Judge denied the claim and either granted the person voluntary departure or simply ordered deportation. The Immigration & Nationality ACT (INA) sets forth procedural rules applicable to appealing decisions of Immigration Judges through the US Department of Justice; and appealing those decisions to the US Courts of Appeal. In most cases, these appeals constitute a person’s "last chance" to fight their case and stay in the US, which is why retaining counsel capable of presenting the best factual analysis and legal argument is paramount.

Of course, receiving a grant of asylum or other relief from the Immigration Judge is the optimum result in any Immigration Court case. Once you have to appeal a case, it means that you have lost your case and must persuade a higher authority to change the result. Losing in Immigration Court, however, is only "round one" and there are one or two more rounds to be fought before a denial of asylum or other relief becomes "final" and a person must actually leave the US.

When an Immigration Judge denies a Respondent’s case, the Respondent has 30 days to file a Notice of Appeal to the Board of Immigration Appeals (BIA). The BIA and the Immigration Courts comprise the two levels of the Executive Office for Immigration Review (EOIR). The EOIR is an agency under the US Department of Justice and operates independently of the USCIS and USICE, which are under the US Department of Homeland Security. Generally, the filing of a BIA appeal will automatically "stay" or stop execution of a removal order pending the BIA’s review of the case, but in some cases will not. The attorney responsible for filing the appeal must be aware that a Motion for Stay must be filed with the appeal in cases where there is no automatic stay.

Shortly after the BIA receives the notice of appeal, the BIA issues a "Briefing Schedule" and transcript of the proceedings from the immigration court. The transcript will contain a written record of all verbal statements that were made during the immigration court hearings as well as a complete statement of the Immigration Judge’s decision. The attorney’s job on appeal is to identify any factual misstatements and erroneous legal conclusions the Immigration Judge may have made in her decision, and find support in case law and the record for all arguments. Successfully reversing an order of the Immigration Judge at the BIA requires a careful review of the transcript and broad knowledge of controlling "precedent" decisions, which will help guide the BIA’s analysis of the case.

Comments

Add New Search RSS

Write comment

Name: Email:  do not notifynotify Title: UBBCode:         -color-aquablackbluefuchsiagraygreenlimemaroonnavyolivepurpleredsilvertealwhiteyellow -size-tinysmallmediumlargehuge     Please input the anti-spam code that you can read in the image.

Powered by AJPress

3.26 Copyright (C) 2008 Compojoom.com / Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved."