GTHOMAS
Sat, Dec 15, 2018

Appeals & Motions to Reopen

Has your case been denied by the Immigration Judge or USCIS?

Our persuasive writings along with addressing the proper issues on appeal have guaranteed our clients success to remand their cases back and obtain legal residency.

In fact, our office had three landmark published opinions at the Ninth Circuit Court of Appeals: Viridiana v. Holder, Sumolang v. Holder and Chandra v. Holder.

Our office has also won many motions to reopen before the Immigration Court and the Board.

Appeals – Board of Immigration Appeals (“Board” or “BIA”)

The Board of Immigration Appeals (“Board” or “BIA”) is part of the Department of Justice. It reviews decisions made by both the Immigration Judges and USCIS. The Board is located in Falls Church, Virginia. The notice of the appeal must be received at the Board’s office no later than thirty (30) days from the order entered by either the Immigration Judge or the USCIS officer. The Board may take months before an appeal is adjudicated. Most appeals are reviewed by a single Board Member. If you assert that your appeal warrants review by a 3 - Member Board Panel, you may identify the specific "Factual or legal basis for your contention".

If a decision is rendered favorably, the Board remands the case back to either the Immigration Court or the USCIS with specific instructions. The Board may grant relief and request that security background check be completed for the grant of relief. Other times, the Board may remand back to the Immigration Judge to conduct further evaluation of the case and enter a new decision.

If the appeal is dismissed, the Board will notify the appellant and his attorney. The Board’s decision will apprise the appellant for the basis of the dismissal. The appellant may file a federal appeal with the Federal Appellate Courts to review the legal issues again.

FEDERAL APPELLATE REVIEW

The Ninth Circuit Court of Appeals has jurisdiction over cases completed in the following States: Arizona, California, Nevada, Oregon, Idaho, Montana and Washington.

The Ninth Circuit is located in San Francisco, California.

The appeal to the Ninth Circuit or any federal appellate body is called a Petition for Review. The petition for review must be filed with the Court within 30 days of the decision of the Board of Immigration Appeals. Untimely petitions are dismissed by the Court. Thus, it is extremely important that the appeal is effectuated in a timely manner. There are fees associated with the Petition for review. Please see the Federal Appellate Court web site for fees associated with the petition for review.

Filing a petition for review of a removal order does not automatically stay the petitioner’s removal from the United States. INA § 242(b)(3), 8 U.S.C. § 1252(b)(3). However, the Courts of Appeals may issue a judicial stay of removal to prevent U.S. Immigration and Customs Enforcement (ICE) officers from deporting a person while his/her petition for review is pending before the court. In Nken v. Holder, 556 U.S. 418, 434 (2009), the Supreme Court instructed courtsto adjudicate stay motions by applying the traditional standard for a stay.

Under this standard, the court considers the following four factors:

  1. whether the stay applicant has made a strong showing that he/she is likely to succeed on the merits;
  2. whether the applicant will be irreparably injured absent a stay;
  3. whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
  4. where the public interest lies.

Our office has a pride to state that it has won, almost all, of its motions to stay for its clients before the Ninth Circuit Court of Appeals pending the Court’s review. Further, our office had three landmark cases of first impression helping the immigrate community:

Fraud by an Immigration Consultant

Viridiana v. Holder, 646 F.3d 1230 (9th Cir. 2011), our office has won an untimely asylum for an alien defrauded by an immigration consultant. In this case, the Court rejected the Board’s interpretation of the Matter of Lozada and held that fraud by a consultant may constitute an exceptional circumstances warranting a waiver from the one year deadline required for filing asylum applications.

Harm to a Child Extending Asylum to a Parent

Sumolang v. Holder, 723 F.3d 1080 (9th Cir. 2013), our office has won a victory for a parent, who was able to obtain asylum solely based on the harm to her own child. The court rejected the Immigration Judge and the Board’s interpretation that harm to a family member could not extend to an applicant seeking withholding of removal.

Motion to Reopen – Removal Order

Chandra v. Holder, (10-70029)(9th Cir. 2004), our office has won a victory to a person, who was ordered removed from 2002. The Court reopened his removal proceedings and stayed his removal and allowed him to present evidence material to his asylum claim based on his personal change circumstances, as it relates also to worsening conditions in his home country.

Our office has represented many people before the Ninth Circuit for the past 14 years. We have an exceptional record in wining our petitions for review because of our dedication to our client legal issues and our exceptional writing abilities.

MOTION TO REOPEN AND MOTION TO RECONSIDER

Motions to reopen and motions to reconsider may be filed in the immigration court and the Board of Immigration Appeals. Motions to reconsider ask the court to reconsider a possible error in fact or law from a previous decision. Motions to reopen ask the court to consider new evidence that was not available before. Both motions have strict filing deadlines – the motion to reconsider must be filed within 30 days of a final judgment and the motion to reopen must be filed within 90 days of a final judgment. However, there are exceptions and even if your case has been decided years ago, there may be a way to get your case reopened.

Motions to reopen are a key component of the office business. If you received a deportation order many years ago and you are still in the United States and you now have some type of relief (such as marriage to a U.S. citizen), you must reopen your removal proceeding before you can get your green card. The office prides itself on its motions to reopen, especially when the case has been closed for many, many years. We have reopened cases where there was no hope and where other firms had failed. It is a big risk for you to spend thousands of dollars on an attorney to reopen your case because you really only have one chance to get it right. Make sure you have an experienced attorney who knows what he is doing so you do not have to spend more money on a second attorney to fix the errors of your first attorney, which may not be fixable.

Call Us for an Appointment (888) 876 7539

Helpful U.S. Immigration Links

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Here you will find many helpful links to the U.S. Department of Homeland Security Citizenship & Immigration Services.