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By Jarbath Pena Law Group
Navigating the U.S. immigration system is often complex, and getting a denial can be disheartening. But knowing what to do next is crucial to keeping your case on track. Whether you applied for an immigration benefit or are fighting deportation, the appeal process gives you another chance. This guide from the Jarbath Peña Law Group will break down what happens if your immigration appeal is denied and what options are available.
What Type of Benefit Got Denied?
Before diving into what to do after a denial, it’s important to understand the type of benefit or application in question. U.S. immigration decisions generally fall into two categories: affirmative benefits requests and removal (deportation) proceedings. Each has a different appeals process and authority involved.
Affirmative Benefits Requests
An affirmative benefit request refers to any type of application you file proactively with U.S. Citizenship and Immigration Services (USCIS). This could include applying for permanent residency (a green card), seeking asylum, or naturalization. Essentially, you’re requesting permission to remain in or enter the U.S. based on eligibility criteria outlined in the Immigration and Nationality Act (INA).
When you submit an affirmative petition, USCIS reviews your application, and if they find that you haven’t met the requirements, they can deny it. In such cases, you may appeal the decision or file a motion to reconsider.
Removal Proceedings
If you’ve been placed in removal proceedings, the U.S. government is seeking to deport you, and the case goes before a judge in immigration court. You will have the chance to defend yourself and argue why you should be allowed to stay in the U.S. If the judge rules against you and orders deportation, you have the right to appeal this decision.
Let’s break down what happens in each type of appeal and what to do if those appeals are denied.
Appealing a USCIS Affirmative Petition Denial
If USCIS denies your affirmative petition, you typically have two options: appeal the decision to the Administrative Appeals Office (AAO) or file a motion to reopen or reconsider your case. The AAO reviews denials of certain immigration applications, such as visa petitions and waivers, under the purview of USCIS. If your denial falls under the AAO’s jurisdiction, you’ll need to submit a Notice of Appeal or Motion.
When filing an appeal, the AAO examines the application and evidence to determine whether USCIS made the right decision based on the law. If they agree with USCIS, the denial is upheld. If they find the denial was incorrect, your case may be remanded or approved.
Remember that an appeal must be filed within a strict timeline, usually within 30 days from the date of the denial notice. If the AAO denies your appeal, you may have limited options, such as judicial review in federal court.
Appealing an Immigration Court Decision on Deportation
If an immigration judge orders you removed from the U.S., you can appeal to the Board of Immigration Appeals (BIA), the highest administrative body for interpreting and applying immigration law. This appeal must also be filed within 30 days of the judge’s decision.
The BIA reviews your case, including legal arguments and case records. If they decide to uphold the removal order, you may be deported unless you seek further review in the federal appellate court system. The next step in appealing a BIA decision is filing a petition for review with the U.S. Circuit Court of Appeals.
What Happens If My USCIS Appeal Is Denied?
If your appeal to the AAO is denied, you still have a few paths to consider:
File a motion to reopen: You may file a motion to reopen your case with USCIS or the AAO if you have new evidence that wasn’t available during the initial application process.
File a motion to reconsider: This involves asking the reviewing body to reassess your case based on an incorrect application of the law. You will need to show how the denial was legally incorrect.
Judicial review: In rare cases, you can appeal to a federal district court. This option is only available in certain types of denials, and the court reviews whether USCIS followed proper procedures in denying your case. It is highly advisable to consult with an immigration attorney before proceeding with this step, as court appeals can be complex and costly.
Lastly, you can accept the denial. If you do so, you can pursue other affirmative benefits, or you can make the difficult decision to simply stop the immigration process. If you make this most difficult choice, you can legally remain in the U.S. as long as your current status is still valid.
Also, keep in mind that if you have an affirmative asylum case, USCIS will generally not deny your request. Typically, they will refer your case to immigration court, where you can present your case a second time.
What Can I Do If My Immigration or BIA Appeal Is Denied?
If the BIA denies your appeal in a deportation case, your situation becomes more urgent. The next step is to petition the U.S. Circuit Court of Appeals for a judicial review. However, this type of appeal is extremely technical, requiring you to present strong legal arguments about why the BIA made an error in law.
If your case reaches the federal court system, the process can take several months or even years. During this time, you may request a stay of removal to prevent deportation while your appeal is pending. However, not all cases are eligible for this type of relief, and it is up to the court to grant or deny your request.
In certain circumstances, you can request a review by the U.S. Supreme Court, but this is rare and typically only happens in cases with broad legal implications. It’s critical to have legal counsel if your case reaches this point.
Ready to Get Help?
By understanding the specific steps to take after an immigration appeal denial, you’re better equipped to make informed decisions and fight for your future in the U.S. Legal assistance is crucial, especially in complex cases involving deportation or multiple layers of appeals.
If your immigration appeal has been denied, don’t lose hope. Immigration law is incredibly intricate, and a denial doesn’t always mean the end of your journey. However, navigating the appeal process on your own can be overwhelming. The stakes are high, and errors or missed deadlines can lead to irreversible consequences, such as deportation.
Hiring an experienced immigration lawyer can make a significant difference in your case. An attorney from the JP Law Group can evaluate the reasons for your denial, explain your options, and represent you throughout the appeal process. They can also help ensure that you meet all legal requirements and deadlines, maximizing your chances of success. Don’t leave your future to chance—seek professional guidance to protect your rights and pursue the best outcome for your case.
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