You Must File Your Appeal Papers Promptly. That is—Within 30 Days from the Decision of the Judge—or it will Become a Final Order of Deportation Subject to Immediate Execution
In considering whether to appeal a decision of an immigration judge it is critical to remember that a “NOTICE OF APPEAL” must be RECEIVED by the Board of Immigration Appeals within 30 days from the date in which the immigration judge issued or "entered" the decision on the court records. It is not enough that the noncitizen deposits the NOTICE OF APPEAL in the United States Mail for delivery, or special overnight delivery, to the BIA.
Likewise, if a noncitizen wishes to file a "PETITION FOR REVIEW" from a final order of the Board of Immigration Appeals, the Petition for Review must be received by the United States Court of Appeal (having jurisdiction over the geographical location where the removal proceedings were completed) within 30 days from the date in which the final order of the BIA was issued or entered on the record. And here as well, it is not enough that you deposit it in the United States Mails for delivery, or special overnight delivery within the 30-days. Also, be careful not to count month to month (from day seventh of one month to day seventh of the next month) because you will be making a mistake by calculating the 30 days. For example, if the immigration judge's decision is issued on July 31 and you mistakenly calculate that the Notice of Appeal should be received by August 31, your appeal will be received one day to late. Make sure that instead you count the 30 days beginning with the day after the order of the immigration judge was issued and end the count on the 30th day thereafter as the mark of when it must have been received. Be aware that these mistakes in calculation happen all of the time and that they happen even to lawyers or their assistants whom for whatever reasons, are not paying sufficient attention.
These "timely" filing requirements of the BIA and the United States Courts of Appeal MUST be strictly followed as they will likely cause the noncitizen's Notice of Appeal or Petition for Review to be rejected as untimely. If you have allowed the 30 days to expire before filing your NOTICE OF APPEAL or PETITION FOR REVIEW (absent very limited circumstances such as the Notice of Decision was mailed to the wrong address), the appeal to the BIA or the petition for review to the Court of Appeals will very likely be dismissed as untimely.
If your appeal to the BIA is dismissed because it was received in an untimely manner, it means that the order of the immigration judge becomes "final" and the same is no longer subject to appeal or direct review based solely because it was received after the 30th day.
We cannot repeat the importance of filing a timely appeal too many times. YOU CAN PREVENT this from happening to you by taking the proper action in filing the appeal or petition for review PROMPTLY, that means ensuring that it is RECEIVED within the first 30 days from the date of the decision that is being appealed.
If you are not sure that you wish to appeal within those first 30 days, file the notice of appeal anyways so that if you later realized that you do want to pursue an appeal, you have not disqualified yourself by filing the "Notice of Appeal" out of time. If on the other hand, you decide for some reason you do not want to pursue the appeal (appropriate perhaps only in the most rare limited circumstances), you can write a letter to the BIA requesting that the appeal be dismissed because you are withdrawing it immediately.
Why Should I Even File an Appeal if a Judge Has Already Determined that I did not Qualify for Any Immigration Relief ?
The best answer to this question can be obtained from the Board of Immigration Appeals’ own website and other administrative resources from the Department of Justice, which publish the statistics for all appeals and motions that are filed with the BIA in a fiscal year.
Those published statistics show that in the average, the BIA reverses immigration judges decisions (meaning it finds that they made mistakes that had an impact in the outcome of the cases) in about 25 to 30% of the cases reviewed by the BIA.
Another good reason for pursuing an administrative appeal is because the noncitizen who has been employed legally (with work authorization issued by the DHS) may continue to be employed during the adjudicatory process of the administrative appeal. For most noncitizens who have received an adverse decision from an immigration judge, this reason is crucial to their ability to continue to fight their cases through the court systems.
Yet another good reason for pursuing an administrative appeals is because many noncitizens have been able to benefit from changes in the law that have occurred during the pendency of their appeals. For example, during the 1986-1987 legalization program enacted by the Congress during Ronald Regan’s Presidency, many millions of noncitizens (some whose cases were pending on appeal) were able to benefit from the change in the amnesty law and managed to obtained their permanent residences as a result of refusing to pack-up and leave. Those few that did leave effected in most cases an actual deportation, which in turn disqualified them from eligibility for legalization in the end.
Likewise there are similar good reasons for pursuing a petition for review of the final order of the BIA with the federal courts. The majority of the federal circuits of the United States publish fiscal year statistics detailing the number of immigration cases that were filed in any fiscal year, and likewise publish information as to the number of cases that were remanded to the BIA or vacated and granted.
It should not come as a surprise to you that considering these statistics available to the public not only through their own respective websites but also through other independent judicial watch resources, it reveals that a similar percentage of cases decided by the BIA are reversed by the federal circuits.
In fact, it should also be of no surprise to you that the Supreme Court of the United States, the highest judicial authority in the land, also publishes its own statistics respecting the type of cases it decides and how it decides them. You will learn that although the numbers dwindle considerably when you examine the Supreme Court’s statistics for any fiscal year—it nonetheless decides immigration cases each year and usually overturns the decisions of the United States Circuit Courts of Appeal.
In conclusion, no judicial forum other than the Supreme Court of the United States is free from reversal of its decisions. Then, noncitizens should keep these statistics in mind when weighing their options on what to do with an adverse decision from an immigration judge.
It is not final until it is final!
