Appealing an immigration court case or denied I-130 to the BIA

The Board of Immigration Appeals (“BIA”) is an administrative appellate body, and a part of the Executive Office of Immigration Review (EOIR). The EOIR is an independent agency within the US Department of Justice. The BIA reviews the decisions of the Immigration Courts by interpreting federal immigration laws. For example, if an individual is ordered removed (“deported”) from the United States by an Immigration Judge, the BIA may review the decision of the judge. The BIA can choose to affirm, reverse or remand the decision. Some BIA decisions may be appealed to a US Court of Appeals. Aside from Immigration Court decisions, the BIA also is responsible for hearing appeals stemming from some of the decisions of the US Citizenship and Immigration Services (USCIS). For example, a USCIS denial of a family based petition (I-130) may be appealed to the BIA.

The BIA is located in Falls Church, Virginia and its size varies from time to time. Under current law, the BIA may have up to 15 Board Members, including the Chairman and Vice Chairman. The BIA’s typical proceedings do not include courtroom hearings. Rather, a documentary review of appeal filings is conducted to review cases. However, on rare occasions, the BIA has heard oral arguments at its Falls Church, Virginia headquarters. The BIA decides each appeal on a case-by-case basis, affording each case the necessary time and consideration to ensure fairness. BIA decisions are binding on all immigration judges and DHS officers.

This article provides a general summary of the two most common types of Board of Immigration Appeals—appeals of Immigration Judge decisions and appeals of USCIS denials of Form I-130.

BIA Appeal of an Immigration Judge Decision

After an Immigration Judge makes a final ruling on a case, the foreign national has thirty days to file an appeal to the Board of Immigration Appeals. The process is as follows: following the filing of the Notice of Appeal, the BIA sends a briefing schedule to the foreign national or their attorney. This briefing schedule sets forth the timeframe for submission of a legal brief describing arguments in support of the appeal. Once the legal brief and supporting documents are submitted to the BIA, it considers the case. The Board will make its decision by reviewing the arguments presented in the appeal brief and the record from the removal case. The record usually consists of (1) the documents that the government filed with the Immigration Court, (2) the documents that were filed with the court, (3) the transcripts from the hearings if it is an appeal of a removal order, and (4) the Immigration Judge’s decision.  Although the BIA is not required to adjudicate appeals within a certain timeframe, the BIA strives to issue decisions as efficiently as possible. The BIA states that it generally seeks to adjudicate cases in no more than 180 days, however appeals can take between 8-18 months (depending on the novelty and complexity of the legal issues being reviewed).  The BIA’s decision is generally the final decision in the case. However, in certain instances a further appeal to a Federal Circuit Court may be possible.

BIA Appeal of a USCIS Decision to Deny an I-130

Form I-130 is used by US citizens or residents to petition close family members for US immigration benefits. Close family members include spouses and children, as well as parents and siblings. This privilege does not apply to extended family like cousins and aunts.  USCIS may deny a Form I-130 or revoke a previously approved I-130. The grounds for an I-130 denial range from simple procedural issues such as nonpayment of filing fees or lack of documentation of the familial relationship, to more complex matters such as fraud or a finding that the family relationship is not recognized at law.  Denials and revocations are treated very seriously under US immigration law as they could lead to a permanent ban on future petitions under Section 204(c) of the Immigration and Nationality Act. If a denial is received, contact an immigration attorney.

In submitting an appeal of a denied I-130 filing, the Attorney files a Notice of Appeal to the USCIS Field Office issuing the decision within 30 days of the decision. The appeal brief and supporting documents then must be filed within 30 days of the filing of the Notice of Appeal. If the Field Office determines that the appeal does not overcome the grounds for denial, the Field Office prepares a Record of Proceeding (ROP), which consists, among others, of the appeal and supporting documents filed by the petitioner and evidence and documents relied upon by USCIS in rendering its decision. The Field Office then forwards the ROP to the USCIS’ attorney (Office of the Chief Counsel). USCIS’ counsel reviews the ROP and prepares arguments on behalf of the government. After Counsel reviews the ROP, the packet is forwarded to the Board of Immigration Appeals (BIA) for review.

Experience has shown that the BIA will typically issue a decision within 6 months, but longer processing times are possible. It is important to note that under some circumstances, the filing of a new Form I-130 in addition to or instead of filing an appeal might be the best strategy. A denial from the USCIS does not prevent a petitioner from petitioning the same relative, if eligible. An experienced immigration attorney can help you determine which route is best for your situation, and expertly represent you in overcoming the negative decision.

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Atty. Khurgel is a former USCIS and Department of State Embassy Officer with over ten years of government service and private immigration practice experience.  His offices are located in Irvine, California.