Appeals and Motion to Reopen and for Reconsideration

Our Legal Team


Steven L. Tuchman
Director
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Thomas R. Ruge
Director
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Robert W. Rund
Director
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Sarah Moshe

Sarah Burrow
Director
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Dallin Lykins

Dallin Lykins
Associate
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Many adverse decisions by immigration judges or US government immigration agencies can be appealed to a higher authority. In some situations the best strategy may be a Motion to Reopen or a Motion for Reconsideration. In other situations, the best strategy may be to seek review of an immigration agency decision in a court of law in a new, separate legal action filed in court. All appeal processes have strict deadlines, that if not followed will result in denial of the appeal. The decision as to what strategy to adopt, what argument will be most effective and what, if any, additional evidence should be presented all require the assistance of a qualified immigration attorney.

Decisions by an immigration judge in removal proceedings to order removal or deny relief from removal are appealed to the Board of Immigration Appeals ("BIA"). These appeals include denial of Suspension of Deportation, Cancellation of Removal, Asylum and Withholding of Removal, relief under the Convention Against Torture ("CAT") or denials of applications for Waivers. Decisions by the BIA can be appealed to the federal judicial system, specifically the US Court of Appeals throughout the US. In some situations a motion can be filed with the immigration judge to consider new evidence not available at the time the judge made his or her decision (Motion to Reopen). In some situations, an immigration judge can be asked to reconsider an order to remove an alien. This is called a Motion to Reopen, and it can be made on the basis of an agreement with government attorneys, on the basis of an error by the judge and on the basis of humanitarian concerns.

The Administrative Appeals Office ("AAO") has jurisdiction to review certain decisions made the USCIS (United States Citizenship and Immigration Services within the Department of Homeland Security). This jurisdiction includes appeals of denial of some visa petitions such as employment based permanent immigration visa petitions, denial of many nonimmigrant visa petitions (e.g. for H-1B, L or E visas), applications for permission to reapply after removal, petitions by schools to become part of SEVIS, revocation of nonimmigrant petitions, petitions for some special immigrants and other petitions and applications. In the case of visa petitions, a denial often will be preceded by a Request for Evidence. A Request for Evidence is a warning that there is something wrong with the application or petition, and consultation with an experienced immigration attorney is strongly recommended.

Denials of an Application for Adjustment of Status by a local immigration office generally cannot, by itself be appealed. For some of these denials, a Motion to Reopen or a Motion to Reconsider is the best strategy. A denial of an application for adjustment of status by a local immigration office usually is followed by a Notice to Appear before an immigration judge in removal proceedings. If the alien qualifies, he or she can apply again before the immigration judge for Adjustment of Status. See our discussion of deportation defense at Deportation and Removal Defense.

The Board of Alien Labor Certification Appeals ("BALCA") reviews denials or revocations of labor certification and challenges to prevailing wage determinations. In some cases a denial by the Certifying Officer in a PERM labor certification will be preceded by a NOID (Notice of Intent to Deny). It is critical to retain the services of an immigration attorney experienced with labor certification when a NOID is received by an employer.

The Office of Chief Administrative Hearing Officer ("OCAHO") is the agency that reviews decisions to sanction employers for immigration violations. The right to appeal these decisions is very limited, and again experienced immigration counsel is needed.

As mentioned elsewhere, some exchange visitor J-visa holders are subject to a requirement to return home for two years following their education in the U.S. In some situations this requirement can be waived. A denial of this waiver is handled by the Exchange Visitor Waiver Review Board, which is a division of the US Department of State.

Appeals, Motions to Reopen, Motions to Reconsider, responses to NOIDs and RFEs and filing a new lawsuit in US federal district court to challenge an immigration judge or agency decision, all are very complex, intricate and challenging matters. Our immigration attorneys have the formal education and many years of experience needed to represent foreign nationals in these venues.