An appeal of an immigration case must be based on more than an applicant not agreeing with the decision handed down. There has to be a specific reason for an appeal to be granted. An appeal can be based on the discovery of evidence that was overlooked, an unfair decision, a misinterpretation of law, a poor translator, or even a change in witness testimony.
There is generally a thirty-day window to file an appeal after an initial decision, but appeal period may be different based on what kind of decision was made. The process is different for different kinds of appeal. For example, an appeal of a decision made by an immigration judge first requires an initial statement of the reasons for appeal. The appeals office, called the Board of Immigration Appeals, then prepares a transcript of everything that happened in the original proceedings. A deadline for a full, detailed legal brief is set; this brief must detail specifically the reasons the judge was incorrect with the previous decision and reference the transcript specifically. Of course, the government has their chance to offer their legal brief as well. The Board will thoroughly review the record and both briefs to determine if an appeal is warranted. The Board has the right to make their own decision, agree with the judge, or send the case back to the judge to obtain more information or reconsider their decision. As you typically only have one chance at an appeal in the immigration system, it must be handed aggressively and carefully – especially since a determination as to whether a person can stay in the United States is typically riding on the outcome of that appeal.
Motion to Reopen or Motion to Reconsider
Both Motions to Reopen and Motions to Reconsider are different than Appeals; with these motions, the review of the prior decision is made by the original decision maker in the case. For example, if the Immigration Judge made the decision, that same judge would be asked to reopen or reconsider the case. A Motion to Reopen can be made under specific circumstances, including if new evidence or law has come to light. If the Motion to Reopen is based on new evidence, there must be supporting documents or affidavits provided. Other reasons may include changing circumstances or new facts in general related to the case. On the other hand, a Motion to Reconsider has no new evidence or information and simply argues that either the facts or law already on file were incorrectly interpreted. While Motions to Reopen or Motions to Reconsider may be difficult to obtain, they can sometimes be the best tool to overturn an unfavorable decision and allow an individual to stay in the United States or obtain the relief they are seeking.
There are sometimes problematic cases that warrant federal litigation as a means of intervention and helping ensure an individual’s rights are protected. Federal litigation cases have limited jurisdiction but can be vital to an individual’s future. There are three common scenarios that can warrant federal litigation. Those include if there has been a significant and unacceptable delay in an application, a denial of an application for naturalization, or detention that unlawful or believed to be violation of the individual’s rights. Because of the seriousness of a federal litigation situation and the complexity of filing a lawsuit against the United States government, having experienced and enthusiastic legal support is vital.
The attorneys at Shapiro Law Group, PC, are ready to help you. Contact us today to set up your free initial consultation. 339-200-9933.