But if you Missed the 30-day Deadline for Filing a Timely Appeal with the BIA - What Now?
In Some Cases, a "Motion to Accept a Late Appeal" May/Could Reinstate Your Right to Appeal
In the event that you missed the 30-day deadline for filing a timely notice of appeal, you do not give up on your rights and "may" still be able to convince the BIA to accept your late Notice of Appeal if you can prove that you were not at fault in not filing the notice of appeal within the 30-days that is required. How? Well, there are two (2) case scenarios we can explain below. The first example requires a filing with the Board of Immigration Appeals and is difficult, but not impossible. The second one requires a filing with the immigration judge and is also difficult but likewise, is not impossible. Both alternatives are factually driven, meaning is completely dependant on the specific facts that caused you not to have filed the notice of appeal in a timely manner.
- First example: if you hired a lawyer (or a non-lawyer) who represented to you that he/she would file the Notice of Appeal on time, and he/she did not do so, you may convince the Board that they should exercise favorable discretion to accept your belated filing by proving that you acted reasonably in hiring the lawyer (or non-lawyer); that you acted diligently in informing yourself of his/her failure of filing the Notice of Appeal as agreed. Do not get this wrong. It would not be easy to convince the BIA in accepting a belated appeal. In fact it will be extremely unlikely that the BIA will agree to accept a late filed Notice of Appeal at any time after the 30-days required by the rules because the BIA considers that it has no "authority" to accept a Notice of Appeal that is filed untimely. But (remember what we said in "OUR PURPOSE" page that for every rule there is likely an exception) if your deportation case came from one of the two (2) federal circuits that has determined that the BIA is wrong to consider that it has no "authority" to accept a belated Notice of Appeal you would be lucky because you would be able to cite to the Board the decisions from those circuits as authority for the Board to consider whether it would accept your belated Notice of Appeal. Never give up, never.
In Other Cases, a "Motion to Reissue the Order of Deportation" to the Immigration Judge May/Could Reinstate Your Appeal Rights
- Second example: You may also ask the immigration judge to reissue the decision denying your case for purposes of allowing you the opportunity to appeal the decision to the Board, which you lost when the 30-days expired before you were able to file it. Here as well, you would have to convince the immigration judge that you were not at fault in not filing the Notice of Appeal on time. As with the case scenario above, do not think this is something that will be easy to do, specially if you are not an expert in presenting a motion accompanied by the proper amount and quality of evidence necessary to convince the judge to reissue the order of deportation. But a minimum, you cannot allow days and days to go by. Better yet, keep this in mind as an unbending rule that you must never forget—the worst thing that you can ever do in deportation cases is not act promptly. The judges will make you pay for your apathy, ignorance or lack of diligence by refusing to reopen your case at the mere showing that there has been a lack of expedience from your part. Judges will not hesitate one second to punish the noncitizen for not taking immediate corrective action.