The immigration court system is a set of administrative courts run by the Department of Justice under the power of the U.S. Attorney General. These courts only hear cases involving immigration, such as proceedings to remove someone from the United States. They also grant or deny individuals’ legal immigration status when a dispute has arisen between the person and ICE (Immigration and Customs Enforcement). The courts also hear appeals from foreign nationals who are seeking refugee status or asylum. There are approximately 350 immigration judges in 58 immigration courts nationwide.
The other arm of the immigration court system is the Board of Immigration Appeals (BIA). This is an appellate body which hears cases where a determination was made by an immigration court judge, but one of the parties is dissatisfied and wants to appeal.
Why Are the Immigration Courts Being Criticized?
In recent years, the immigration courts have come under heavy criticism, for four reasons. People who need to appeal an immigration judge’s decision are particularly affected by the last two (heavy caseloads and lack of transparency):
- Gross underfunding. Over the past decade, Congress has greatly increased the funding for immigration enforcement, and this increases the hundreds of thousands of new removal cases the immigration courts receive each year. In contrast, funding for the courts has been increased only modestly.
- Inconsistent decisions and treatment of immigrants. An analysis was done concerning the consistency of decisions relating to immigrants seeking asylum. Cases are assigned randomly to judges within the court, and grant rates vary wildly in some immigration courts. San Francisco has an especially high difference in approval: from 2013-2018, one judge granted 90% of asylum requests, and one only granted 3%. Courts in Chicago, Arlington and San Antonio also had large inconsistencies at the judge level. Notably, one judge in Oakdale, Louisiana has never granted a request for asylum.
- Heavy caseloads. Because they have literally thousands of cases at a time to handle, immigration judges may have only 15 minutes to make a decision on a case. This could well mean that a judge rules incorrectly in your case simply because they did not have enough time to consider the case thoroughly. This would mean that to get the result you deserve, you would have to appeal the judge’s decision.
- Lack of transparency. Immigration courts also release less documentation than state, county, and other federal courts, making appeals more difficult. Immigration court officials defend this policy by stating that it is in place to respect immigrant privacy. However, there is often no privacy concern when the immigrant is trying to retrieve their own file in order to make an appeal, yet requests for the necessary documents are often denied, or only parts of the file are provided.
Further compounding the problem, the immigration courts are subject to special rules of procedure that forbid the public from accessing online legal filings in nearly all immigration appeals. Those documents are available in almost every other category of legal cases.
The immigration courts’ lack of transparency means the person seeking immigration benefits is forced to defend themself against secret law. The difficulty of obtaining your own records and accessing legal filings in cases that are like yours is a strong reason to hire a lawyer to prepare your appeal rather than trying to do it yourself.
Can I Appeal an Immigration Court Decision?
An immigration court decision can have a huge impact on your life as it might result in your deportation. Fortunately, you have 30 days from the date of the judge’s decision to appeal the decision.
Once you start the appeal process, your case will be sent to the Board of Immigration Appeals. The Board, while it waits to hear your appeal, will order a stay on the enforcement of the Immigration Court’s decision. This means that if the Immigration Court has ordered your deportation, a stay will prevent the deportation from taking place until the Board has made a final decision as to your appeal.
How Do I Appeal an Immigration Court Decision?
If your application or request has been denied by an immigration court, you will be advised as to whether or not you have the opportunity to appeal their decision. (Certain immigration court decisions cannot be appealed – these include a denial of extension of stay or a change of nonimmigrant status.)
The immigration court will provide instructions for submitting an appeal. Typically, these instructions will be attached to the immigration decision itself. After receiving the notice, you may pay a fee and file your appeal at the office that made the original decision. In that appeal, you will be able to submit an explanation of why you are appealing the original decision. You can also ask to be present at the review and to be allowed to make an oral argument to support your written appeal.
In most instances, the BIA reviews an applicant’s paperwork in its totality, including the original application, petition, briefs, motions, and the decision, to make its own determination. The setting is not like a courtroom. Instead, the BIA independently parses through the documents and history of the case and typically notifies the individual via mail.
In addition to appealing a judgment to the Board of Immigration Appeals, it is possible to file a motion to reopen or reconsider the decision with the Administrative Appeals Office (AAO). You may file a motion with the AAO even if your case is not eligible for appeal to the BIA.
In a motion to reopen, you must have new information to provide. The type of evidence would be affidavits or new facts. In this type of appeal you don’t claim that the immigration court made an incorrect decision according to the law, but rather that the court did not have all the facts at the time it reached its decision. In a motion to reconsider, you must show that the original decision was based on an incorrect application of the law to the facts of your case when it was originally decided.
What If the Board Of Immigration Appeals Rules Against Me?
If the Board of Immigration Appeals rules against you, you can also appeal that decision as well. If you appeal the decision of the Board of Immigration, that case no longer stays in the immigration court system and is instead moved into the federal court system.
The federal court cannot just take on any case. Instead, it can only review constitutional claims and questions of law. Despite that fact, appealing BIA decisions is actually a fairly common occurrence. One estimate is that 40% of federal appellate cases in California and Texas came from the Immigration Courts.
Do I Need An Attorney?
Immigration cases are complex. The regulations that govern immigration are written entirely in legal-ese, and there are hundreds if not thousands of regulations. Missing a single required regulation can result in denial of the result that is sought. An immigration issue may well have a life-changing effect upon you and your family.
Because individuals are only permitted to file one appeal, it is in your best interest to consult with an experienced immigration lawyer prior to filing the appeal. A lawyer will be able to help you craft an appeal that has the best chance of success. It is very important that you have an experienced attorney at your side to help you navigate the immigration court system.
If the Board of Immigration Appeals does not rule in your favor, your lawyer can help you decide whether or not to file an appeal in the federal court system. If you decide to file this second appeal, a lawyer’s help can be invaluable in preparing the federal appeal.
