Our Practice is Exclusively Dedicated to Preparing and Filing Direct "Appeals" to the Board of Immigration Appeals, from Orders of Deportation Issued by Immigration Judges, as well as Preparing and Filing "Petitions for Review" to the U.S. Federal Circuit Courts of Appeal from Adverse Orders from the Board of Immigration Appeals.
Our common sense and human life experiences dictate to all of us that if we were personally involved in performing a single task everyday (i.e., researching the deportation laws of the United States; writing deportation appellate briefs, motions to reopen, or motions to remand or reconsider deportation orders) as opposed to dividing our attention into multiple legal services (i.e., preparing applications for permanent residence, applications for naturalization, non-immigrant visas, labor certifications, employment authorizations, etc., or alternatively, if we were also involved in the practice of family law, bankruptcy law, employment law, etc.,) there is a much greater likelihood that we will perform that one single task we concentrate our entire attention on—much better than we would if we had to divide our attention in performing various other services or legal practices day-in and day-out. At Immigration AppealWorks®, the only legal service that we perform day-in and day-out, is researching the deportation laws and writing deportation appellate briefs as well as motions to reopen deportation orders, motions to remand or motions to reconsider.
Our appellate services at Immigration AppealWorks® also extend to preparing and filing petitions for review before all of the federal circuits of the United States after the Board of Immigration Appeals has rendered an adverse decision against a noncitizen. We took a professional approach at creating our appellate practice by developing our own internal review system and well-structured appellate procedure to enable us to map-out an individual resolution for every appeal that we accept. We do that by first uncovering the specific factual circumstances that transpired during the lower deportation proceedings be it before the immigration judge or the Board of Immigration Appeals, i.e., the "who" did "what" wrong, as well as the "how" to fix those mistakes that took place in order to provide the noncitizen who lost his or her case with a fair opportunity to have a new fresh look at their case, and give new life to their hope and opportunity to remain legally in this great country of ours. This is all we do every day-in and day-out.
What is the difference between Administrative and Judicial Appeals?
An appeal arising from an order of an immigration judge is referred to as an "administrative" appeal because it is presented for decision to a federal administrative agency (i.e., the BIA). An appeal arising from an order of the BIA on the other hand is referred to as a "judicial" appeal (or Petition for Review) because it is presented for decision to a Federal Circuit Court of Appeals. An administrative appeal widely differs from a judicial appeal because of the limits that are imposed on administrative judges. What limits? For example, administrative judges are without authority to question the constitutional validity of a rule of law. To be clear, generally stated, the Congress of the US writes the immigration legislations that then become laws (called "statutes") after they are signed by the President of the US ("POTUS"). Thereafter, the Attorney General of the US is in charge of promulgating rules that are designed to implement those statutes that were just passed by Congress and the POTUS. But these rules (called federal regulations) are more specific, detailed or descriptive than the statutes themselves and they expand, in part, on "how" the statutes will apply, in "what" circumstances, and to "whom", "when", "where", etcetera. One good example of this is the Voting Rights Act of 1965 (consisting of various statutes) prohibiting certain state governments from enacting state laws that may interfere with the rights of citizens of those states to vote in elections. Congress wrote the Voting Rights Act in 1965 based on an amendment to the federal constitution (the 15th Amendment) to protect the rights of citizens that were being disenfranchised by certain states. The Attorney General thereafter promulgated much more specific and detailed rules (called regulations) implementing the Voting Rights Act statutes. These federal regulations then instruct the various states affected with specificity on what things those states may or may not do that will violate the Voting Rights Act statutes. Without the promulgation of these federal regulations, it would be much more difficult to determine when certain conduct would violate one or more of the laws. But sometimes, regulations are promulgated (written) in a manner that either exceeds the intended purpose or does not go far enough in others. The only branch of the government empower with the authority to declare a regulation as "exceeding" its intended purpose or not going "far enough" is the federal judiciary (the federal courts). The administrive immigration judges and the BIA form part of the executive branch of the Government, not the judiciary.
The same thing is true with immigration statutes. The Attorney General promulgates these more detailed rules named "regulations" describing what specific conduct may violate the statutes passed by the Congress and POTUS. Only federal judges (the "judiciary" branch) are empowered with the authority to block an Act of Congress so that if you are challenging a rule of law on the grounds that the rule offends a constitutional principle (e.i., it violates your right to equal protection of the law), the administrative judges whom are not part of the judiciary will be without authority to decide the constitutional question presented because they are compelled by law to follow the rule that you are challenging, even if later, that same rule is stricked down or overruled as unconstitutional by a federal court on the next level-up. Because of this, often a noncitizen challenging a rule of law as being unconstitutional because it deprives the noncitizen of a right that is guaranteed by the federal constitution, will have to go through the administrative appeal process knowing that his challenge will be disapproved by the administrative judges, so that on the next level in judicial review of the same challenge, the noncitizen may be heard by the federal court judges on whether the rule is unconstitutional. Then, you may ask why bother with filing an appeal with the BIA, if the administrative judges cannot decide the question you present to them in the first place? The short reason is because the next level up judges, those in the federal circuit courts of appeal are only authorized to review decisions of the BIA, not of the immigration judge. A noncitizen wishing to appeal an unfavorable decision of an immigration judge must first go to the BIA with their challenges and only after the BIA makes a decision in the case, can the noncitizen then file an appeal with the federal court of appeal. Also, the next level up federal circuit judges will not be able to conduct a review of any other arguments you may have (that do not involve constitutional challenges to rules of law) if you do not present them to the BIA first. Why? Because, assuming you had one constitutional challenge to a rule and two (2) other arguments that had they been presented to the BIA, they might have been corrected, your failure to present them to the BIA is considered a "waiver" of the right to have it reviewed by the federal circuit court of appeals. The design and intended function of the BIA is to correct the errors that may have been committed by the lower court (i.e., the immigration judge) so that if you do not present the error first to the BIA, the error will remain intact in the case without a resolution because you did not first presented it to the BIA, and the federal circuit courts can only review a decision of the BIA.
When a noncitizen is placed in removal proceedings before an immigration judge, the noncitizen will be afforded the procedural right to one (1) level of "administrative" review before the BIA and one (1) level of judicial review before the Federal Circuit Court of Appeals. Although a noncitzen can also file a petition for review known as "petition for certiorari" or "writ of certiorari" before the Supreme Court of the United States (as the very last level of judicial review) the Supreme Court does not have to hear the case unless it elects to do so.
This also means that before an order of deportation from an immigration judge becomes final and operative (executable) against the noncitizen, the noncitizen will have the right to exercise these two (2) levels of review of the decision of the immigration judge as a procedural "check" to make sure that the immigration judge's decision was in fact correct.
Since 1997, our appellate practice has been exclusively dedicated to filing administrative and judicial appeals from orders of deportation (and removal or exclusion) issued against noncitizens in immigration courts across the United States. If you or a family member have been ordered deported by an immigration judge, we will file the EOIR-26 Notice of Appeal before the BIA in a timely manner and will prosecute the appeal process to completion no matter where you or your family member live in the United States. And if you or a family member have received a final order of deportation from the BIA, we will file the Petition for Review with the corresponding Federal Circuit Court of Appeals in the circuit that has jurisdiction over the city where the immigration court that issued the order of deportation was located, anywhere in the United States. We offer noncitizens a simplified internet electronic process where all of the documents that are needed to represent them are exchanged by use of scripted emailings in a safe, secured and expeditious manner no matter where the noncitizen resides in the United States. Moreover, the noncitzen will have the ability to receive documentary proof of filing with the BIA or the Federal Circuit Courts electronically, almost instantly after we file it.
If you have been ordered deported by an immigration judge recently (or your deportation order was appealed to the BIA but denied recently), you have probably spent a good amount of time in looking for a qualified professional to represent you in your immigration appeal needs.
The chances are that if you researched the internet or telephone book looking for a professional to help you with your appeal, you came across numerous law offices and immigration lawyers throughout the United States that advertise themselves as able and willing to handle deportation appeals. But it is also likely that these professionals offer in addition other immigration legal services that are not exclusively related to the filing of deportation appeals. Common sense dictates therefore that these professionals do not exclusively devote their legal services to a deportation appellate practice, as we do.
Becoming an expert in filing and prosecuting immigration appeals (as it would be the case in becoming an expert in any other profession or skill) requires a continuous commitment not only in staying informed over continuing changes in immigration law but also in developing and maintaining a well-structured appellate methodology for choosing the most viable issues, and for preparing and prosecuting the appeals. Common sense dictates that the more legal services that an immigration lawyer offers to its clientele, the more likely it is that his or her appellate practice's time and effort is being divided amongst the many other legal services the lawyer is providing. After all, a professional's intellectual capacity, attention and concentration is being tugged, divided and shared among the various services that the professional offers. To become and to remain an expert on filing and prosecuting deportation appeals requires no less than a continuous full-time commitment to the deportation appellate practice. No part-time involvement will do.
At Immigration_AppealWorks® we offer expert immigration appellate services to noncitizens or their attorneys and these services are exclusively limited to filing and prosecuting immigration appeals before the BIA, and filing and prosecuting motions to reopen before immigration judges or the BIA. As a result, AppealWorks® is able to deliver in each appeal case we take, all of the appellate expertise we have gained from preparing and prosecuting exclusively deportation appeals and motions to reopen since 1997.
We also file and prosecute Petitions for Review before the United States Courts of Appeals in all federal circuits of the United States. We do not offer any other immigration legal services (as most immigration lawyers and firms do) such as filing applications for permanent residence, naturalization, asylum, non-immigrant work visas, or filing applications for any other numerous immigration benefits that are available to the public.
We limit our services exclusively to the preparation and filing on behalf of your clients (or, on your behalf if you are a noncitizen who has received an order of deportation from an immigration judge) any direct and timely appeal before the Board of Immigration Appeals or Petition for Review before any federal circuit of the United States.
And what is a viable "direct" and "timely" appeal before the BIA?
A "direct" appeal refers to an appeal arising from an original order of an immigration judge determining that the noncitizen is either deportable, excludable, or removable from the United States (e.g., a legal determination made by an immigration judge that the noncitizen involved is unlawfully present in the United States and that is also ineligible for any form of relief from deportation, exclusion or removal). And a "timely" appeal refers to an appeal that is filed within the first 30 days from the order of the immigration judge. A "viable" direct appeal is an appeal that it is also timely filed, within the first 30 days after the immigration judge issues an order of removal (deportation).
A viable direct appeal enjoys a series of very important legal benefits. First, a viable or direct timely appeal affords the noncitizen involved in the appeal process the benefit of a stay of deportation of the order of the immigration judge (meaning, the order of the immigration judge holding that the noncitizen is deportable cannot be executed against the noncitizen by ICE agents during the administrative appeal process).
Second, it allows the noncitizen to continue to apply for and obtain yearly employment authorization documents during the administrative appellate process. And most significantly than all, it will allow the noncitizen to obtain judicial review of the BIA's final administrative order of deportation by a court of appeals of the United States, if the BIA affirms the decision of the immigration judge and the noncitizen must take a second step to protect her rights.
Why is this a significant factor?
Well, because administrative agencies (such as the BIA and the Office of the Immigration Judge) are without authority to determine the constitutional validity of the laws they have been delegated to enforce. By this we mean, that neither the Office of the Immigration Judge nor the Board of Immigration Appeals can determine whether a particular rule of immigration law is constitutional or unconstitutional. Rather, only the Supreme Court of the United States and the Federal Circuit Court of Appeals have the exclusive and ultimate authority to interpret if a particular statute or regulation violates the federal constitution, although any District Court of the United States may also decide the question.
Hence, if an immigration judge rules against a noncitizen (orders that the noncitizen be deported) and on appeal the BIA affirms the decision of the immigration judge, if the noncitizen does not get an opportunity to obtain judicial review of the administrative final order (because the direct appeal was not filed in a timely manner), then a federal court of the United States will never have the opportunity to decide whether the rule of law applied against the noncitizen by the immigration judge or the BIA was in fact validly constitutional because only federal courts can decide the constitutionality of an immigration rule of law, not the agencies.
Example of a Direct and Timely Appeal
If an immigration judge enters an original order of deportation, exclusion, or removal against a noncitizen on September 1, the noncitizen's appeal filed with the BIA on or before October 1, will be considered a timely filed and direct appeal because it was filed within the first 30 days required by the regulations (rules that govern the filing of appeals), after the immigration judge entered the original order of deportation against the noncitizen.
As a result of having filed the direct appeal timely within the 30 days required by regulation, the noncitizen will be permitted to continue to remain present in the United States without any risk of being deported, will be permitted to continue to apply for and receive employment authorization documents for the duration of the administrative appeal process, and most significantly, the noncitizen will be permitted to seek judicial independent review of the administrative final order of deportation before a federal circuit court of appeals.
If, on the other hand, the noncitizen mistakenly files the appeal with the BIA in Falls Church, Virginia, on October 2, rather than on October 1, then, the appeal will not be recognized as a timely and direct appeal and will be dismissed as untimely filed. As a further consequence of the untimely filing, the noncitizen will lose her right to continue to receive employment authorization, her statutory protection from being subject to immediate deportation from the United States and most significantly, will lose also her statutory right to obtain judicial review of the administrative final order of deportation and the right to a decision from a federal court determining whether the rule of law applied to the noncitizen was indeed constitutionally valid.
And that is all what we mean when we make reference to either a direct appeal or a timely appeal.
Is the noncitizen without any recourse if the appeal is untimely filed?
Before moving on to another subject, we want to point-out to the reader that in those situations where the noncitizen files the notice of appeal "out of time" (the appeal notice arrived at the BIA late, belated, tardy, etc.) the noncitizen's most likely only hope will be to file a "motion to reopen" (more fully explained to in substantial detail below in this same page) explaining therein the reasons why (1) the appeal was not filed in a timely manner (but you must also explain the reason why it could not have been filed in a timely manner) or (2) that you were unaware that the notice of appeal was not filed in a timely manner (if, for example, you hired a lawyer or non-lawyer to file the appeal timely but he/she failed to do so and you did not know it sooner). CAVEAT: As further evidence that under our judicial system in the United States, immigration laws are not written in cement (i.e., they are subject to modification as a result of new federal circuit court decisions that are constantly interpreting them) in the jurisdiction of the United States Court of Appeals for at least two (2) federal circuits, the rule that a notice of appeal must be filed within the first 30 days from the date of the immigration judge's decision has been interpreted to nonetheless allow the BIA to consider a belated notice of appeal. Said in other words, the BIA has always taken the position that it "lacks the necessary jurisdiction" (i.e., power, authority) to consider any notice of appeal that is not filed within the first 30 days from the date the immigration judge issued its decision according to the rule that governs notices of appeal. These two federal circuits (the 2nd and the 9th) have interpreted that same BIA rule but in the opposite. They have interpreted that BIA rule as not prohibiting the BIA from exercising its authority to consider a late arrived notice of appeal. Hence, if you missed your deadline of filing the notice of appeal in a timely manner within the first 30 days from the order of the immigration judge, and your case arose from one of the immigration courts under their jurisdiction (the 2nd and 9th federal circuit courts) you will have an opportunity to argue to the BIA that your reasons for not having filed the notice of appeal on time, should be excused provided you act diligently and expeditiously (in other words you will be required to act promptly from the moment you learn you missed the 30-day deadline or your right to appeal will be lost, permanently. However, this is not an easy task by any means, but at least is not a totally lost case because if your reason(s) for not filing it on time are reasonable under the circumstances, and the BIA denies the request to accept the untimely notice of appeal, you will have the right to seek judicial review of the BIA's refusal to consider your untimely notice of appeal.
If your reasons for not filing a timely notice of appeal is based on the circumstances described earlier (i.e., that you had hired a lawyer, or a non-lawyer, to file the notice of appeal on time and he/she negligently did not file it timely), and your case did not arise from one of the two federal circuits mentioned above, you may be able to file a "motion to reissue" the deportation order with the immigration court so that the time for filing the appeal within 30 days may be reinstated (regained). But in such cases, before you even attempt to file such a motion, consider this big, big CAVEAT before doing anything: noncitizens, by regulation (rule of law), are given one (1) single "shot" at getting that point across to the Board member who will be deciding the motion to reopen requesting that the appeal be "reinstated" provided the motion to reopen is filed expeditiously after the date when it should have been filed (in otherwords do it quickly to avoid the Board denying your request because you failed to act diligently in making the request).
If the noncitizen does not convince the Board member during that single opportunity the noncitizen is given by law of the reason why the notice of appeal could not have been filed timely, then, the noncitizen has waisted that only one, single opportunity given by law. If there is a single lesson that you should take from this entire issue involving untimely notices of appeal and motions to perfect the appeal, it should be that the "immigration landscape" is so replete with hurdles that it would be "wholly unwise" for you to attempt filing the motion yourself, or hiring someone who is less than an expert to do it on your behalf. One mistake and your motion will be denied not on the merits but for some procedural error that should have been avoided. The BIA (as well as the federal circuit courts) will take the first opportunity you give them to not decide your case on the merits, without a doubt.
Here is an analogy to better explain the concept.
To analogize this concept, think of it as if you were placed in a thick jungle in Africa, armed with a single rifle and suddenly you come across a deadly (but very alive) beast, intent in killing you because it is hungry or it feels threathened by your presence (unless of course you kill it first). Now consider further that you have been given a single bullet inside that rifle—a true life challenge. My suggestion to you in that case scenario would be that you better aim really, really well at the beast before pulling the trigger and shooting because if you do not shoot the beast the right way, you will not live to tell the story. No different here. You better aim right, or hire a professional shooter—if you are like most people in this fictitious jungle, e.g., you do not feel competent, lucky or confident enough!
Back to the subject of appeals now. Included among the above referenced appeals are those appeals from a finding of an immigration judge that the noncitizen is deportable, excludable or removable as well as orders of an immigration judge denying applications for relief from removal, exclusion or removal, such as denials of applications for Suspension of Deportation, Cancellation of Removal, Asylum, Withholding and Convention Against Torture (CAT), or denials of applications for waivers of deportability or inadmissibility under sections 212(c), 212(h) or 212(i) among many other forms of relief from removal.
But what does it mean to file an appeal?
Filing an appeal from an order of an immigration judge ordering the deportation (or removal, or exclusion) of a noncitizen consists of an administrative reviewing process, conducted by the BIA where the appealing party (nearly always the noncitizen) gets the opportunity to explain to a BIA member (assigned to review the administrative appeal) of the reason(s) why the decision of the immigration judge is incorrect and should be reversed, vacated and/or remanded.
Point of fact: You should be aware that although it is a fact that all immigration judges make errors and mistakes when presiding over any deportation, exclusion or removal proceedings—not all of their errors and mistakes are of the type of errors and mistakes that are necessary for the BIA to reverse, vacate and/or remand the case. [Reverse, vacate and/or remand (either of them) occurs when—the BIA in reviewing a case on appeal determines that the decision of the immigration judge was made in error and the BIA then first "vacates" the prior order of the immigration judge, meaning it nullifies its effect, and either reverses the decision of the immigration judge or returns the case to the immigration judge to correct it.] But the BIA will not reverse, vacate and/or remand an appeal case even if you prove that the immigration judge made a mistake—unless you can convince the BIA that the outcome of the case would have been different if the error had not been committed by the immigration judge. To illustrate this better, only those errors that are of significant importance (we refer to them as "material" errors) actually qualify for the BIA to reverse, vacate and/or remand it to the immigration judge. Conversely, if the error (or multiple errors) of the immigration judge in your case, are of the type that after considering them in the best light in your favor, would still not have changed the outcome of the immigration judge's ultimate decision in your case, then, those types of errors are classified as "harmless errors" and those types of errors will not amount to requiring the BIA to reverse, vacate and/or remand the appeal to the immigration judge. Therefore, the errors of the immigration judge must be of the type of errors that "really" matter in order to compel the BIA to reverse, vacate or remand the decision to the immigration judge for correction.
What goals can be accomplished in filing an appeal?
There are various goals that can be accomplished in filing an appeal from an order of an immigration judge, which are determined by the particularized individual interest of the noncitizen (such as the most immediate goal, which is preventing the decision of the immigration judge from becoming “final”-- because, when you allow the order of the immigration judge to become final there is nothing else that you can do to stop agents from the Department of Homeland Security/Immigration and Customs Enforcement to visit you at home before 6:00 a.m., and take you into custody until they can execute the order of removal from the United States).
There are many other good reasons to file an appeal least of which is the ability to continue being present in the United States legally, continuing to be eligible for employment in the United States for as long as your appeal is pending before a final decision is made in your appeal. But clearly the most evident reason for filing an appeal is to take the opportunity to convince the BIA that it should reverse or vacate the decision of the immigration judge, or send the case back to the immigration court (“remand”) for a new decision consistent with the law as interpreted by the appellate decision of the BIA.
For example, convincing the BIA in your appeal that— had the immigration judge not made the errors he/she made—the outcome or result of your case would likely had been different (e.g., your application for adjustment of status may have been granted instead of denied; or the immigration judge may have been required to consider your applications for relief from deportation instead of finding you ineligible for it, or, the government may not have been able to prove that you were subject to deportation instead of establishing that you were not eligible for any relief, etcetera, etcetera).
In such instances where you convince the BIA member that your case should be remanded to the immigration judge, as a result you would have a new opportunity to convince the immigration judge that you deserve the grant of your application for adjustment of status relief, or the grant of your application for a waiver of inadmissibility, or asylum or the many other applications for relief from deportation, removal or exclusion.
When you consider that the majority of the applications for relief from deportation (exclusion or removal) are denied because they were poorly prepared and presented (meaning, applications that lacked sufficient documentary evidence to establish they warranted approval, or applications that did not establish all of the elements that are required to be proved), the possibility that you could get a second opportunity to present your case anew before the immigration judge should be sufficient reason to make most noncitizens willing and able to file an appeal.
Example of an Application Presented to an Immigration Judge that Fails to Establish all of the Elements that are Required by Law
To convince an immigration judge that the noncitizen deserves cancellation of removal for nonpermanent residents, the noncitizen must establish four (4) different elements (referred to as "statutory" elements because they are the elements of the statute)—and they are: (1) continuous physical presence in the US for no less than 10 years; (2) has been a person of good moral character during those 10 years (3) has not been convicted of certain eliminating crimes (4) and demonstrates that the removal from the US would inflict exceptional and extremely unusual hardships on the noncitizen's qualified relatives (either US citizens, or lawful permanent residents whom are either parents, spouses or children under 21 years old).
A poorly prepared and presented application for cancellation of removal is one that establishes some, or most, but not all of the four (4) statutory elements. Most applications of this type are denied because when the application was presented to the judge it did not contain evidence establishing all four statutory elements.
Yet others are denied because even though the applications presented evidence establishing all four elements, the evidence presented in support of one, or more of the statutory elements, was disputed by the US government's attorney, or such evidence was insufficient (not enough evidence presented), or it lacked credibility, or it was biased, etc.
Applications for cancellation of removal for nonpermanent residents are also very demanding because they require supporting documents to prove each and every statement of hardship you want to make. For example, if you want the immigration judge to consider that one of your relatives suffers from a particular serious illness, you cannot establish that fact unless you present a diagnostic letter or report from a medical doctor corroborating the existence of the illness, or you have to present a medical report from a hospital corroborating the medical illness, or you present a detailed report from an insurance company eliciting the existence of the illness in the report.
But you never, never, never rely only on testimony alone (unless the testimony is from the treating physician or other medical expert) to convince the immigration judge that your relative suffers from such illness. You should know that the immigration judge would make a reversible mistake if he/she credited your testimony alone as sufficient to establish the existence of that fact.
This is a vivid example of the reason why most applications for relief are denied by immigration judges. The applications were poorly prepared and poorly presented to the immigration judge! However, by no means, is this example the only one reason why these applications are frequently denied.
How difficult is to win an appeal?
The short answer is that to win on appeal is—very difficult—but not impossible. The long answer is that it depends on numerous factors of which the most frequent ones depend on the magnitude of the errors that occurred during the trial proceedings and the experience of the appellate lawyer in identifying which of those errors involved raise the likelihood of showing sufficient prejudice. In fact, the BIA’s own fiscal released statistics over the number of appeals that are filed in the course of a year in comparison with those that are dismissed, in the end, tells a good part of this story. But, keep in mind however that the burden of establishing that the immigration judge’s decision is incorrect (i.e., the burden of winning an appeal) is on the appealing party (most generally the noncitizen).
More importantly, keep also in mind that several thousands of appeals are received every month by the BIA but there is only 13 permanent and 5 temporary BIA members to conduct the reviews of those appeals—a very limited number of them indeed handling a very vast number of appeals that are being filed every month. Therefore it is a fact that—if you want to convince the BIA member assigned to your case that the immigration judge's decision is incorrect and should thus be reversed, vacated and/or remanded—you have a very limited amount of time to get that BIA member’s close attention to your appeal—because he/she needs to decide a very large number of them and there is a very limited time that will be dedicated to your appeal.
Caveat: You should know that while the Board does not publish any particular approach on how its members review appeal briefs or motions to reopen or reconsider, logic and experience dictates that the Board would have adopted screeners before the appeals and/or motions get to the Board member assigned to review the merits of the appeal and/or motion. The screeners are employees of the Board trained in verifying whether a particular appeal brief and/or motion is in strict compliance with all of the regulatory requirements imposed on appeals. Thus, the screeners would be the very first line of review, which an appeal brief and/or motion would need survive in order to move to the merits step. Here, in this very first line of review is where most appeal briefs and/or motions get decided. If they do not comply with all of the regulatory requirements, the appeal brief and/or motion will not move to the merits step and will suffer an early adverse disposition.
And let us be honest. The most accurate gage as to how likely it may be that an appeal to the Board will be successful (or not) depends for the most part on the "quality" of the performance of both the attorney and the noncitizen during the trial of the noncitizen's application before the immigration judge, as well as, the "quality" of the presentation of the documentation in support of the application for relief. A thorough and qualitative presentation of a case to an immigration judge is one that has been successful at not only anticipating "all" of the problems that will likely lie ahead during the trial of the application, including the testimony of witnesses and the sufficiency of the supporting evidence but also in preparing for how to successfully resolve these problems in advance. Frankly, a surprising number of the cases we see in our appellate practice share these common predominant denominators: (a) negligently prepared applications (missing and/or contradictory corroborative evidence, no translations accompanying foreign language documents), (b) negligently prepared witnesses (meaning the witnesses had no idea what to expect from their testifying experience at the witness' stand, or unfamiliarity with the documents presented in support of the application) particularly the star witness (the noncitizen), and (c) cases where it is evident that the attorney did not take the necessary time to scrutinize the case to anticipate all of the problems the case had before the day of the trial date. Hence, on the day of the trial, these "surprises" inevitably come up during the presentation of the case and the unprepared Captain of the ship cannot stop the ship from sinking.
What is a well-prepared appellate brief?
Preparing an appeal from an order of an immigration judge requires that you focus upfront on the issues that matter and that you are able to convince the reviewing BIA member in the first sentences that this is an appeal brief that is worth examining. Your appeal must strive very hard in facilitating the process of the BIA member’s examination by writing your appellate brief concisely and keeping the BIA member’s interest and attention sufficiently focused on the errors of fact and law of the immigration judge’s decision. To do this, requires at a minimum an expertise in eliciting the right issues to be raised as well as an ability to artfully illustrate why those errors determined the final outcome of the case.
The writer of an appellate brief must enlist the BIA member’s interest and attention in the appellate issues very promptly, must be extremely accurate in its supporting contentions and citations and must logically persuade him or her into yielding agreement.
As a caveat: if the noncitizen does not file a "timely" appeal (meaning an appeal that it is filed within the 30 days time limit from the date of the judge's decision), then that order becomes final and ICE agents can effect the deportation of the noncitizen at any time after the expiration of the time for filing the appeal—anytime after the 31st day from the date the immigration judge ordered the noncitizen deported.