How to Appeal an Immigration Decision in the U.S.

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May 23, 20245 min read

By: Jarbath Pena Law Group

Appeal Immigration, judge writing with gavel and scales of justice

Navigating the U.S. immigration system can be a daunting experience. Despite your best efforts, you might face an unfavorable decision regarding your immigration application or status. However, immigration court judges and officers can be well-meaning and still make mistakes. If you think that U.S. Citizenship and Immigration Services (USCIS) or an immigration judge (IJ) issued an erroneous decision regarding your application or status, you can appeal this decision, but you must act quickly. You need to submit most appeals within 30 days. So do not hesitate to contact an attorney and get the ball moving as soon as you receive your unfavorable decision.

Your attorney can make sure you file your appeal in a timely fashion, and that you make persuasive arguments in your motion. So the single best thing you can do upon receipt of a bad decision is talk to an immigration lawyer at The Jarbath Peña Law Group. We can help ensure you have the best chance of a better outcome.

In the meantime, you can educate yourself on the appeals process to significantly improve your chances of a successful outcome. This guide will help you understand how to appeal an immigration decision in the U.S., as well as cover some related issues.

How Do You Appeal an Unfavorable Immigration Decision?

Immigration appeal, standing figure handing stack of legal documents to sitting figure with laptop open

When you receive an unfavorable decision from U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), or the Executive Office for Immigration Review (EOIR), you generally have the right to appeal. The specific process depends on the type of immigration benefit you applied for and the nature of the decision.

Affirmative vs. Defensive Immigration Benefits

Affirmative Immigration Benefits

Affirmative immigration benefits are those for which you proactively apply. In other words, you initiate the inquiry and the process by asking the government to grant you some type of immigration status or benefit. This can be an application for a work visa, family-based visa, or naturalization.

If U.S. Citizenship and Immigration Services (USCIS) denies your application, you may have the option to appeal the decision to the Administrative Appeals Office (AAO).

How to Appeal an Affirmative Decision:

Immigration appeal, Notice of appeal, form 1-290

Notice of Appeal - File Notice of Appeal or Motion, within 30 days of the decision (or 33 days if the decision was mailed);

Filing Fee - Pay the required filing fee unless you qualify for a fee waiver; and

Supporting Documentation - Include any new evidence or legal arguments that support your case.

The Administrative Appeals Office (AAO) will review your appeal and make a decision. If the AAO denies your appeal, you may still have the option to file a motion to reopen or reconsider the case with U.S. Citizenship and Immigration Services (USCIS).

Defensive Immigration Benefits

Defensive immigration benefits arise when you are in removal proceedings and apply for relief, such as asylum, cancellation of removal, or adjustment of status. If an immigration judge (IJ) denies your application, you can appeal to the Board of Immigration Appeals (BIA).

How to Appeal a Defensive Decision:

Notice of Appeal: File Notice of Appeal from a Decision of an Immigration Judge, within 30 days of the Immigration Judge's (IJ's) decision.

Brief: Submit a written brief outlining the legal and factual reasons for your appeal. This is typically required within the deadlines set by the BIA.

immigration appeal, person writing with stacks of papers with various binder clips and writing instruments

The Board of Immigration Appeals (BIA) will review your case and issue a decision. If the BIA denies your appeal, you can petition for review by a federal circuit court of appeals.

Mixed Affirmative and Defensive Cases

Some cases involve both affirmative and defensive elements. For example, you might have an affirmative application pending while also being in removal proceedings. In such cases, you need to navigate both U.S. Citizenship and Immigration Services (USCIS) and Executive Office for Immigration Review (EOIR) processes. A common occurrence is when you qualify for and have applied for a green card, but it has not yet been approved. While waiting for approval, you could get notified that you are in removal proceedings. This essentially means you have two immigration cases happening at once.

Coordination between the two types of proceedings is crucial, and you may need to file appeals or motions in both forums. An experienced immigration attorney can help with this complex process and help ensure you get the best possible results.

Motions to Reopen and Reconsider

Immigration appeal, woman in suit sitting down reviewing books with scales of justice

If you believe U.S. Citizenship and Immigration Services (USCIS) or the Immigration Judge (IJ) made an error in your case, you can file motions to reopen or reconsider.

Motions to Reopen: These motions are based on new facts or evidence that were not previously available. You must file within 90 days of the decision unless there are exceptional circumstances.

Motions to Reconsider: These are based on legal arguments, claiming that the original decision was incorrect due to misapplication of law or policy. You must file this motion within 30 days of the decision.

Filing these motions can give you another opportunity to present your case without starting a new application process.

AAO Appeals

The Administrative Appeals Office (AAO) handles appeals related to certain immigration benefits, including employment-based visas and waivers. To appeal to the AAO:

File Notice of Appeal—This must be submitted within 30 days of the U.S. Citizenship and Immigration Services (USCIS) decision; and

Submit a Brief—Include any facts, legal arguments, or new evidence showing that the law supports your request for benefits.

The AAO will review the case de novo, meaning it will consider the case from the beginning without deference to the original decision.

BIA Appeals

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. It handles appeals from decisions by IJs and some decisions by DHS officers.

File Notice of Appeal: Submit this within 30 days of the Immigration Judge's (IJ's) decision; and

Submit a Brief: You’ll need to submit a detailed legal and factual argument that explains how the facts and the law support your request.

The BIA can either issue a decision or remand the case back to the IJ for further proceedings.

How Long Does an Appeal Take?

time for immigration appeal, standing calendar with hour glass with blue sand half way full

The length of time an appeal takes can vary widely. Administrative Appeals Office (AAO) appeals typically take six months to a year. Board of Immigration Appeals (BIA) appeals can take several months to over a year. Federal court appeals may take even longer, often over a year.

The complexity of your case and the backlog of cases at each agency can influence these timelines, and your attorney can likely give you a better idea of the current backlog and when your decision might be issued.

Contact Us

Attorney Fritznie Jarbath and Melisa Pena

If you face an unfavorable immigration decision, navigating the appeals process can be complex and time-sensitive. Our experienced immigration attorneys can help you understand your options and build a strong case on your behalf. Call The Jarbath Peña Law Group or contact us online to schedule an appointment and discuss your immigration case. Don't face this challenge alone—let us help you achieve the best possible outcome.