EmailShare with:TweetWhen an Immigration Judge issues a decision, either the government or the foreign national has a right to appeal that decision. These appeals are filed with a tribunal called the Board of Immigration Appeals ("BIA") and the BIA handles all appeals of all decisions from an Immigration Judge in the United States. When the BIA issues a decision on a case, it is done in writing and sent to the attorney of record AND the foreign national. The copy received by the foreign national contains a cover letter informing the reader that the BIA's order is enclosed and providing information about deadlines imposed as a result of the BIA's decision.
The BIA's cover letter is often confusing and many times leads the reader to believe that he MUST take additional steps relating to the case. Although anyone subject to the BIA's order CAN take further action regarding their case, there is no requirement that further action be taken. Unfortunately, many individuals do not read the information correctly and instead retain the services of an attorney to file motions with the BIA without understanding what is being filed, why anything is being filed and the likelihood of success with these additional filings.
If you receive a copy of a decision from the BIA, do not jump on the opportunity to give an attorney your money. Rather, take the time to consult with a qualified and experienced professional who can explain to you what can be done and the merits of taking further action. Many individuals simply lose their money as a result of filing motions or other matters in response to a BIA decision when it is very unlikely that anything positive will come of such filing. Do not feel compelled to read the BIA's order to require the filing of anything. Instead, use the notice provided by the BIA as an opportunity to discuss the case with your attorney and to make an informed decision about what, if anything should be done next.
The truth is that there are three basic actions that someone can take after receiving the BIA's decision. One is to file a motion to reconsider. This is a motion which is filed directly with the BIA asking that it reconsider its decision based on an argument that the Court misapplied the law. This motion must generally be filed within 30 days of the order sought to be reconsidered and the chances of success are minimal. Unless the BIA completely missed the correct analysis of your case, filing a motion to reconsider is unlikely to lead to the BIA's order being overturned.
The next option is a petition for review. This is a petition filed with the Circuit Court of Appeals having jurisdiction over the location where the Immigration Court which heard your case was located. For any case heard in Florida, this is the Eleventh Circuit Court of Appeals in Atlanta, Georgia. While any case decided by the BIA can be appealed to the Circuit Court, jurisdiction over many matters is very limited at this level. The work associated with filing a petition for review is difficult and the chances of success are again limited. Many immigration lawyers do not handle cases such as these and you need to make sure that someone who tells you that they will appeal your case to this level has experience handling such cases.
The final option is a motion to reopen. Motions to reopen can be filed for many reasons, but there exist certain time and numerical limitations which apply to these cases. Generally, a motion to reopen must be filed within 90 days of the order sought to be reopened and must be supported by new evidence which was previously unavailable. Filing a motion to reopen may be appropriate where an individual becomes eligible for a benefit during the course of an appeal or in asylum cases, where there is a material change in the conditions in one's home country which warrant further review of an asylum claim. As with a motion to reconsider, the BIA's decision to grant a motion to reopen is completely discretionary.
Please be careful out there. We have many examples of clients who receive a letter from the BIA and are scared into taking action that is completely unnecessary and completely a waste of resources. If you receive a decision and you have any questions, ask them to someone who can provide you advice and guidance rather than digging in your pocket and spending more money on filing something that is not going to get you anywhere. Understand what an attorney is filing for you and understand why you are spending your money. Sometimes taking no action is the best decision to be made. Know your rights and know what an attorney is doing for you.