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 Role of 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 will address—the 2 missing errors that the alien did not mention because they are not the alien’s advocate! If either the Immigration Judge or the Board actually look into any such issues that should have been but were not presented by the alien, that factor should be considered a "gift" and not 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 they 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 readers how frequent some Immigration Judges appear to "invite" self- representation from some respondents, in the absence of ample admonishment of a warning regarding the devastating disadvantages of self representation.
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 the crucial claim or matter will be examined (considered) by the Immigration Judge because the Immigration Judge is not obligated to do so in “adversarial” proceedings. One may compare (as an analogy) warriors like the Gladiators in ancient Rome with the combatants in immigration court proceedings. In ancient Rome, the Gladiators trained as professional fighters who would be fighting another combatant for their own survival in public entertainment gatherings referred to as "games".
The “judge" presiding over those games, was usually a powerful politician or other wealthy Roman who did not take an active roll during the fighting and ultimately only declared the winner as—the warrior who defeated his combatant. No real difference here. The alien will be expected to be as good of a warrior as his or her combatant (the attorney representing the Department of Homeland Security). The Immigration Judge is required to determine the winner based on the ability of the individual parties to represent themselves.
In sum, the Immigration Judge is limited by his/her own rules to be an advocate to no side and to enforce and implement the rules irrespective of which party will be benefited from it (but only if the party brings it to the attention of the Immigration Judge). The Immigration Judge is absolved from the failures of either party, or both, in omitting important matters or arguments that should have been made, but were not made.
As the Gladiators were left to their own professional training and expertise in fighting during the games, so do the parties that come before an Immigration Judge in deportation, or removal proceedings are left to their own professional training and expertise. Thus, it is almost always a fatal mistake when an alien thinks that he/she is at the same level of professional training and expertise than an attorney for the Department of Homeland Security. In sum, the Immigration Judges will not come to the alien’s defense during the deportation or removal 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 by an Immigration Judge. Hence, our trade mark name of Immigration "AppealWorks®".
Our Schedule of 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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