A denied immigration appeal can be incredibly discouraging for noncitizens seeking immigration benefits. The consequences of denial depend on the unique facts involved. But if you’ve been denied, you may:
- Appeal further,
- Reapply,
- Settle for the denial, or
- Be deported.
If you need help with a denied immigration appeal case, the Law Office of Rosina C. Stambaugh is here to help. A denied case represents a sometimes substantial change to the future you have been envisioning. Reach out to speak with our denied immigration appeal attorney to learn what options you have if your immigration appeal has been denied.
How Do You Appeal an Immigration Decision?
For the most part, immigration appeals vary based on the type of benefits you are requesting. To request affirmative benefits, you apply with United States Citizenship and Immigration Services (USCIS).
When you are placed into removal (deportation) proceedings, you go to immigration court. Immigration courts can only grant “defensive” benefits, like asylum or the withholding of removal from the country. If your defense to deportation is based on qualifying for an affirmative benefit—for example, a green card—you must apply with USCIS while your immigration court case pends. The immigration judge (IJ) cannot grant you a green card.
Appeals from USCIS Decisions
With some exceptions, you appeal from USCIS decisions to the Administrative Appeals Office (AAO). In certain cases, you may also file a motion to reopen or reconsider your case. After you receive a decision from the AAO, you typically cannot appeal any higher. Notably, certain affirmative benefits fall under the jurisdiction of the Board of Immigration Appeals (BIA), not the AAO, including Form I-130 denials.
Appeals from Immigration Court
Sometimes, when the government places you in removal proceedings, it also holds you in immigrant detention. You may apply for a bond to be released while your case is pending.
You appeal immigration court decisions to the BIA and sometimes beyond. You can appeal the denial of defensive benefits and the denial of bond.
What Happens If My Immigration Court Appeal Is Denied?
If the BIA denies your immigration court appeal, your options depend on several factors, like:
- What you were requesting,
- Why your request was denied, and
- What you want to do.
If your BIA appeal is denied, you may:
- Request more BIA members review your case,
- Appeal higher, or
- Accept the denial.
In some situations, you may also be able to have a second shot to prove your case if you had no attorney or they were ineffective.
Appealing from the BIA
Typically, a single BIA member will render a decision on each appeal. After the BIA issues its opinion, you can request that the BIA rehear the case in a panel of three BIA members.
You may also appeal to the federal circuit court of appeals with jurisdiction over your case. In Pennsylvania, that court is generally the Third Circuit Court of Appeals. The circuit courts typically hear cases in three-judge panels.
The circuit court can reverse the BIA’s decision, which may include granting benefits or a bond that was previously denied. If the circuit court agrees with the BIA, you can request a hearing from all 12 circuit judges. Or, you may convince the U.S. Supreme Court to take your case on further appeal.
Accepting the Denial
You also have the option of accepting the denial. If you were denied after a bond hearing, accepting the denial means remaining in immigrant detention. If you were denied defensive immigration benefits, you may face deportation.
Legal and Structural Issues
You are entitled to have an attorney represent you in immigration court. If the court fails to give you an adequate chance to secure a lawyer, there may be serious procedural issues in your case. Similarly, if you had a lawyer who failed to competently represent you, you may be able to file for “ineffective assistance of counsel.” If either claim is successful, you may have a second shot at making your case before the immigration court.
What Happens If My USCIS Appeal Is Denied?
Sometimes, you will be unable to even appeal USCIS decisions, especially denials based on missed deadlines. For those you can appeal, AAO denials typically leave few options. You may appeal the benefits that the BIA oversees, however, in the same way as in immigration court. Otherwise, your options are generally to reapply or accept the denial.
Reapplying
With USCIS, reapplying for the benefit is usually an option. You may have to redo several steps in the process, including paying the fees again. Although you cannot get back the lost time or money, reapplying can get you the immigration benefits you need, especially if you were denied for technical reasons.
Accepting the Denial
You may accept the denial by pursuing other affirmative benefits or you can decide not to pursue the matter further. You can legally remain in the U.S. for as long as your immigration status permits.
Notably, in affirmative asylum cases, USCIS will generally not deny your request but instead, refer your case to immigration court. There, you can present your case a second time.
Get Help if Your Immigration Appeal was Denied
Appealing immigration decisions typically requires a deep understanding of immigration law. If you need help appealing a decision or figuring out your options after an appeal was denied, reach out to the Law Office of Rosina C. Stambaugh. A denied immigration appeal can leave you scrambling, but our experienced and dedicated staff can help you decide what to do next.
