Written by attorney Kyndra L. Mulder

Appeals, Motion to Reopen, Motion to Reconsider

Content: Introduction Overview of the Appellate Process Motions to Reopen or Reconsider Appeal of a Criminal Conviction** Appealing the Denial of an Immigration Petition filed with the USCIS ** Appeal of an Immigration Judge's Decision ** Appeal of a BIA Decision** Introduction: If you are reading this page then chances are you - or someone you love - were found guilty of a crime, denied an immigration benefit or been ordered removed. If this is the case, you or your loved one, may have an opportunity to request that the negative decision be reconsidered, reopened or reversed on appeal. Each possible form of relief expires with theme. Below are individual discussions for each form of relief: Overview of the Appellate Process: Upon the receipt of a denial notice from the USCIS or an adverse decision from a judge - in criminal or immigration court - you will be advised of your right to appeal the decision. You will also be advised of the correct appellate jurisdiction. Time limits for filing the Notice of Appeal must be strictly adhered to. The notice of appeal must be filed with the correct fee or it will be rejected. You may file a legal and factual brief (explanation) in support of the appeal. After review, the appellate authority may agree with you and change the original decision, disagree with you and affirm the original decision, or send the matter back to the original office or court for further action. In addition to the right to appeal (in which you ask a higher authority to review a denial), you may file a motion to reopen or a motion to reconsider with the office that made the unfavorable decision. By filing these motions, you may ask the office or court to reexamine or reconsider its decision. Below is a brief overview of each stage in your case where an appeal may be filed. Warning: The procedural rules must be strictly adhered to when filing an appeal; - A late filing will not be accepted and you will have lost the opportunity to appeal,

  • filing without the proper fee may result in your losing the right to appeal because the time for filing may expire before you refile with the proper fee,

  • All possible issues on appeal must be stated and an argument presented in your appeal. You will not be given a second opportunity to raise new issues that should have been raised in the initial appeal.

  • Motions to Reopen or Reconsider: A motion to reopen or reconsider is not the same as an appeal. It is a request for relief made after a governmental body has entered a decision. The motion must state the new facts and legal basis that are to be presented in the reopened proceeding or reconsidered and must be accompanied by affidavits or other documentary evidence. A motion to reconsider must establish that the decision was based on an incorrect application of law or USCIS policy, and further establish that the decision was incorrect based on the evidence in the file at the time the decision was made. Any motion to reopen or reconsider must be filed with the correct fee within 30 days of the decision. A motion to reopen or reconsider if denied may under most cases be appealed. There is no appellate review of denials of extension of stay or change of non immigrant status. Appeal of a Criminal Conviction: A criminal conviction is appealed to the court at the next level. For instance an appeal for a misdemeanor conviction is filed with the circuit court. An appeal of a felony conviction is filed with the court of appeals. Appealing the Denial of an Immigration Petition filed with the USCIS: If your petition or application is denied or revoked by the USCIS, in most cases you may appeal that decision. The USCIS Administrative Appeals Office ("AAO") has jurisdiction over 40 petitions and applications. Appeal of an Immigration Judge's Decision: The Board of Immigration Appeals ("BIA") is the part of the Executive Office for Immigration Review that reviews the decisions of the Immigration Courts and some decisions of the USCIS. It is an administrative appellate body that is part of the United States Department of Justice. BIA decisions are the final administrative action in a given case. The next stage of appeal after a BIA decision is usually in the U.S. Court of Appeals, if an appeal is allowed by statute. Appeal of a BIA Decision: The Board of Immigration Appeals (BIA) is the governmental body that reviews decisions of the the Immigration Judge. An adverse decision by the BIA may be appealed to the federal court. Warning: Timing is very important in the filing an Appeal, Motions to Reopen or Motion to Reconsider. If not timely filed and properly filed you will loose your right to have your case heard on appeal. As soon as you receive an adverse decision contact the Mulder Law Office. Time is needed to determine what issues you may have or what arguments may be presented on your behalf. The Mulder Law Office provides a free consultation by telephone, email or in person to determine what issues you may have for an appeal.

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