Appeals from Orders of Immigration Judges to
the Board of Immigration Appeals
Immigration AppealWorks® will file and prosecute
on behalf of your clients (or, on your behalf if you
are an alien who has received an order of
deportation from an Immigration Judge) any direct
"appeal" before the Board of Immigration Appeals.
Included among them, are orders of denials of
applications for relief from deportation, exclusion or
removal, such as Suspension of Deportation,
Cancellation of Removal, Asylum and Withholding,
Convention Against Torture (CAT), or denials of
Applications for Waivers, such as Section 212(c),
212(h) or 212(i) waivers, among others.
Motions to Reopen/Reconsider Orders of
Immigration Judges or Orders of the Board of
Immigration Appeals
We can also file and prosecute any "motion to
reopen" or "reconsider" any adverse decision made
by an Immigration Judge, or by the Board of
Immigration Appeals (BIA), where the facts and/or
the law support such a motion. Although there are
time and numerical limitations governing when such
motions to reopen can be filed since 1996, there are
also many exceptions that have been carved by the
courts in appropriate cases.
Special Attention Should be Given to the
Preparation of Motions to Reopen/Reconsider
Particular attention is placed on the preparation of a
motion to reopen to increase the likelihood that it
will be granted. The available statistics from the
Executive Office for Immigration Review (EOIR)
show that a very high percentage of motions to
reopen are denied both by the BIA and the
Immigration Courts. In 2008 alone, aliens filed more
than 10,000 motions to reopen with both the BIA
and the Immigration Courts. However, there are no
statistics published that show the percentage of
motions that were granted or denied. It is believed
that a reasonable estimate is that more than 90% of
them are denied each year. One reason contributing
to this high percentage of denials is because it is
estimated that more than 60% of all motions to
reopen are filed by aliens without the aid of a
professional immigration counsel or representative.
Another significant contributing factor is that the
vast number of those motions to reopen that are
denied, are so denied because they were
procedurally deficient at the time when they were
filed. A motion to reopen that does not meet the
procedural regulatory requirements will be denied by
the BIA or by the Immigration Judge solely on
procedural grounds, without ever considering the
merits of the motion itself.
A Common Fallacy that Aliens Make Regarding
the Proper Role of Immigration Judges and/or
the Board of Immigration Appeals
As a caveat, it is worth mentioning here, that aliens
typically believe that the Immigration Judge will be
an advocate for their case when considering a
motion to reopen. Meaning, that the Immigration
Judge considering the motion to reopen (or the BIA
for that matter) will look at their case for any other
reasons that—were not clearly apparent to the alien
filing the motion to reopen—so as to “bring the
wrath of justice” over their cases. Neither
Immigration Judges nor the Board of Immigration
Appeals will—as a matter of procedure—enlarge the
inquiry that appears on the alien’s motion, appeal or
petition papers. If a judge or the BIA does so
enlarge its inquiry from the one presented by the
alien, it is purely an act of discretion. To give more
context to this statement, assume for a moment that
during the alien’s deportation proceedings, the court
makes several (say 3 errors) disfavoring the alien.
Assume also that the 3 errors are of the type of what
we refer to as “material” errors (meaning that they
were very important to the outcome of the case), but
assume also that the alien only mentions 1 error in
his appeal, motion or petition. Neither the
Immigration Judge nor the BIA will likely look into—
or otherwise address—the 2 missing errors the alien
did not mention because they are not the alien’s
advocate! If they do, it was a gift, nor an obligation.
Thus, this erroneous belief that Immigration Judges
or the BIA will act as an advocate may be the result
that in most countries in the world (other than those
embodying our Anglo American judicial system and
principles), judges indeed act as advocates of the
individual in actions brought against their
government. In most of those countries, judges do
not solely render final judgments on the cases, but
also conduct the court’s investigation of the facts of
a case by examining the evidence for an against the
parties. Thus, a Central American native for
example may be justified somewhat in believing that
she is not required to possess an expertise in the
area of immigration law, the evidence rules
or constitutional law in order for her to perfect
her motion to reopen or appeal because judges who
acts in the pursuit of justice will take a hard look at
her claims before determining the outcome of her
case.
Partly to blame perhaps is the typical references
made by Immigration Judges to respondents coming
before their courts—alluding to whether they wish to
have a continuance to obtain an attorney to
represent them or they wish to represent
themselves. It may be surprising to most how
frequent some Immigration Judges invite self-
representation from some respondents in the
absence of a careful admonishment regarding the
devastating potential disadvantages to them.
The Adversarial Judicial System in the United
States Preempts the Role of a Judge's
Advocacy
In the United States of course, we have an
adversarial system of justice requiring each party of
the obligation to bring forth sufficient evidence to
prevail against its opponent and the Judge is only a
referee between the parties-not an advocate of one
party over the other. This translates at the very
least into the following reality— if the alien (referred
to as the respondent in removal proceedings) does
not bring a crucial claim or matter to the attention
of the court in his motion to reopen or his appeal, it
is extremely unlikely that it will be examined by the
Immigration Judge because he is not obligated to do
so in adversarial proceedings.
Thus, Aliens Should Understand their Role in
the Adversarial System and Realize that the
Success or Failure in Reopening their Cases
Depends Entirely Upon them
Therefore, logic and common sense dictate that in
order to increase the chances that your motion to
reopen deportation, exclusion or removal
proceedings will be granted, you must ensure that
your motion meets all of the requirements that have
long been established by the BIA, and by those
established by the court of appeals for the particular
jurisdiction where the deportation, exclusion or
removal proceedings were originally held. It is
rather surprising that despite of the fact that all of
this information has been made available by
published decisions, such vast number of motions to
reopen throughout the United States continue to be
denied for failing to meet those same requirements.
Petitions for Judicial Review Before the United
States Courts of Appeal from Orders of the
Board of Immigration Appeals
In addition to filing motions to reopen or reconsider,
we can file and prosecute on behalf of your clients
(or on your behalf, if you are an alien who has
received a Final Order of deportation from the BIA)
any petition for review before the United States
Court of Appeal in any Circuit of the United States.
In rare circumstances outside of the Ninth Circuit's
jurisdiction, we may also agree to intervene on
behalf of an alien before any appropriate forum,
including on habeas relief under 28 U.S.C. § 2241,
complaint for mandamus relief under 28 U.S.C. §
1361 or application for declaratory relief under 28
U.S.C. § 2201 before a district court, in cases where
the alien has received a final denial decision on an
application for an immigration benefit and there is
no direct appeal is available (i.e., adjustment of
status).
Our Practice is Exclusively Dedicated to
Appellate Proceedings
At Immigration AppealWorks®, we represent aliens
on all of their appeal needs ONLY. We do not
represent aliens in INITIAL proceedings and filings
of applications before the Immigration Service or
before the Immigration courts. In other words,
Immigration Appealworks® practice is exclusively an
appellate firm and will only intervene on appeal after
the alien has lost his case and has been ordered
either deported, excluded or removed. Hence, our
trade mark name of Immigration "AppealWorks®"
Our fees
in prosecuting any of these administrative appeals
are reasonable as well as affordable, and remember,
that the practice is limited to prosecuting appeals
only. To see how affordable, please visit our "Fee
Schedule" Page and find your specific category
based on the number of issues involved in your
case.
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