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A Primer on Motions and Appeals in Immigration Law
Deepali V Lugani
Monday, February 10, 2014
The Immigration and Nationality Act and Regulations provide individuals with several avenues to challenge erroneous denials of their immigration petitions by the USCIS. Upon denial of an immigration petition, the affected party's first step should be to review the right to appeal the decision and the potential grounds for appeal. Depending on the facts of the case, the petitioner may have grounds to appeal an adverse decision on an immigration petition few months later, and in select few cases, even few years down the lane.

Generally, when USCIS denies a petition or application for immigration benefits, the regulations require that the officer provides written reasons for denial. The denial letter should also contain information on the party's right to appeal or file a motion to reopen or reconsider the denial, the deadline to submit the notice of appeal and accompanying evidence, the proper venue, and regulations pursuant to which the right to appeal arises.

Reasons to appeal denials of immigration benefits can include abuse of discretion by the agency or the immigration judge, an arbitrary denial of an application, erroneous application of law, or consideration of new material and relevant facts.

Under the immigration regulations, the affected party with legal standing to challenge denials of immigration applications is the petitioner, not the beneficiary. Thus, the U.S. employer has the right to challenge denial of an H-1B or PERM application, not the foreign worker. However, in cases where beneficiaries are also petitioners they have standing to appeal denials of their applications.
Examples of these include an F-1 student, an applicant for Employment Authorization Document (EAD), Optional Practical Training (OPT), or adjustment of status (I-485) even when filed concurrently with employer's I-140, a beneficiary seeking removal of conditions on permanent resident card, and so forth.

Petitioners can appeal immigrant and nonimmigrant visa petitions. Some examples of appealable decisions include challenging agency's consideration of equivalent foreign degree in adjudicating an H-1B or PERM petition, agency's failure to consider relevant evidence for course requirements for bona fide F-1 students, and failure to examine relevant evidence for managerial or executive duties for an L-1 petition. Petitioners can appeal erroneously denied immigration petitions for family members such as an I-130, discretionary waivers of inadmissibility such as an I-601 or I-212 waiver, and denial of employment based I-140, PERM, or an H-1B application. Applicants in removal and deportation proceedings should be particularly mindful of appeal rights available to them almost every step of the way under the Act and the regulations.

Often times, after a denial letter the first step is to request a motion to reopen or motion to reconsider the denial by the USCIS Service Center that adjudicated the initial petition and rendered the decision. The motion to reopen or reconsider should state new facts in the form of independent evidence, including affidavits by parties with knowledge of new facts, and legal basis for Service Center's incorrect application of law.

If the Service Center denies a petition for failure to respond to an earlier issued RFE, Petitioners can appeal the denials and challenge the prior RFE on procedural or substantive grounds. In the 2 appeal, the Petitioner should explain reasons for failing to respond to the RFE. Procedural grounds may include lack of receipt of RFE or incorrect address on the RFE notice. Substantive grounds include challenging the evidence requested by the Service Center in the RFE as not material to the petition's eligibility, or that the said evidence was already submitted by the Petitioner in the initial submission. Petitioners can also challenge Service Center's denials of immigration applications for incorrectly applying USCIS issued policy guidance.

Apart from the Service Center, there are two major bodies with appellate jurisdiction: the Administrative Appeals Office (AAO) and the Board of Immigration Appeals (BIA). A third body, BALCA, has limited jurisdiction to review decisions on PERM labor certification applications.

The AAO is part of USCIS and has appellate jurisdiction over most employment based immigrant and non-immigrant visa petitions, including appeals for denied I-140 petitions and I-129 petitions for temporary workers on H-1B, L-1, R-1, and K-1 fiance(e) visa, challenges on classification of EB-1, EB-2, EB-3 petitions, denied I-360 special immigrant petitions, review of I-131 reentry permits, denials of waivers of inadmissibility and foreign residency requirements for J-1 worker, and certain naturalization applications. Applicants filing appeals at AAO can also request oral arguments along with their legal brief, though the necessity for oral arguments must be explained in writing.

The BIA is part of the Department of Justice's Executive Office for Immigration Review (DOJ EOIR) and has jurisdiction to hear appeals of certain decisions of immigration court and Department of Homeland Security (DHS). The BIA's jurisdiction largely pertains to appeals arising from deportation and removal proceedings and violations of immigration laws (including criminal laws with immigration consequences). The various appeals at the BIA include appealing removal orders issued by immigration judges, denial of request for stay of removal by DHS or immigration court, the validity of the Notice to Appear issued by DHS, and other decisions of immigration judges. As stated earlier, immigration regulations provide several appeal mechanisms to individuals in removal or deportation proceedings, almost every step of the way.

The motions and appeals process has strict deadlines. It includes appeals filed timely and untimely. Generally, after a petition is denied USCIS gives the Petitioner 30 calendar days to submit a timely motion or appeal. Submissions after 30 days are considered untimely, although in some cases 3 additional days are added for denials sent in mail. The BIA requires that the petitioner (or respondent) file a notice of appeal within 30 days of the underlying denial, however the deadline for the final brief submission is set by the BIA in the form of a briefing schedule after receipt of Respondent's notice of appeal.

In practice, applicants do not always identify errors in the denial letter or available grounds of appeal until after the 30 day period expires. Under the regulations, the agency can excuse the delay and accept an untimely appeal if the Petitioner can satisfactorily explain that the delay was reasonable and beyond the control of the petitioner. For appeals filed with the AAO, applicants can request additional time to submit their legal brief by showing good cause. Respondents can request extension of briefing at BIA. For applicants in removal proceedings, in some cases they can appeal an Immigration Judge's final order of removal or deportation, or file with the Immigration Court a motion to reopen or reconsider final orders of removal even after the appeal 3 period has expired. Some examples of these unique situations include where the applicant did not receive the final removal order, DHS failed to properly serve the Notice to Appear, or exceptional circumstances prevented the applicant from attending removal hearings in Court.

An essential element of a successful appeal is the legal brief that explains to the higher authority in a concise and succinct manner the agency or judge's errors in the application of law or failure to consider relevant and material facts. In order to successfully prevail on appeal, merely submitting evidence may not suffice without laying out the case for the adjudicator in a well-reasoned legal brief. Therefore, Petitioners should be particularly cognizant of the importance of written advocacy skills when it comes to filing appeals.

Finally, Petitioners may challenge certain decisions of USCIS and BIA in federal district courts for abuse of discretion or agency failure to comply with provision of the Immigration and Nationality Act and regulations.

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