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How do I appeal my case?

An adverse decision from an Immigration Judge can be appealed to the Board of Immigration Appeals. Matters that may be appealed are Final Removal Orders; Denial of Asylum cases; Waivers of Inadmissibility and Family based immigrant petitions.

The appeal must be filed within 30 calendar days from the date of the Judge's decision, along with the applicable filing fee which must accompany the appeal papers.

In these cases, the applicant has the right, except if he is a crewman, stowaway, or a person excluded on security or medical disqualification grounds, to appeal the decision of the Judge to the next level, namely to the Board of Immigration Appeals (BIA), in Washington DC. The process is initiated by serving a Notice of Appeal upon the USCIS promptly.

On appeal, the following are a few grounds on which a claim may be based that the decision of the immigration judge deserves to be reversed or set aside -

1. That there were "improper procedures" at the hearing ie that the applicant had an unfair hearing or that it did not follow the legal and agency requirements set for such hearings.

2. That the judge's Order of Removal was based on a "mistake of fact" or "errors of law", ie. that the judge applied an incorrect meaning or interpretation of the relevant laws and regulations.

3. That the decision was not supported by the evidence, or was rendered with an unwarranted disregard of the evidence, or was not based on "proper standard of evidence", ie. not having a substantial and reasonable basis in the evidence.

4. That there was on the part of the judge an "arbitrary exercise of discretion" or "failure to exercise discretion", ie. that either no reason is given for the decision rendered, or the reason given is irrational or out of keeping with established policy, discriminatory or based on improper grounds.

A person who has been ordered removed from the United States may be able to obtain a stay while an appeal to the BIA is in process., thereby preventing the Department of Homeland Security from executing an Order or Removal or Exclusion.

Some stays are granted automatically while the appeal is in process.In other cases, the granting of a stay is "discretionary" and must be requested by the applicant or his attorney from the immigration judge.

In the event that the appeal is denied by the BIA, a final appeal may be made to the US Court of Appeals.

An applicant also has the right upon application during removal proceedings to be deported to any country of choice, and may be granted the right to depart voluntarily ie. an "Order of Voluntary Departure", at the applicant's own expense, and thus avoid being deported. This is a very important right, the difference being that an applicant who is deported requires special permission by the Department of Homeland Security to return to the United States at any time in the future, but the applicant who leaves voluntarily does not.