Introduction
In the United States, there are currently over 60 immigration courts. The Department of Justice controls and manages these courts and you can view their website for more detailed information on each court.
If you are in removal/deportation proceedings, your case will be heard in one of these courts. Your best chance of beating deportation is in these courts. In many cases, the immigration judge has individual discretion to decide your case, as in waiver applications or cancellation of removal. In these cases, the immigration judge can consider at many factors – humanitarian issues, family issues, special needs, length of residency, good moral character, etc. – in making a decision about deportation. In other cases, the immigration judge is bound by law to decide your case, such as determining whether or not you are deportable based on criminal convictions. In these cases, the immigration judge has little or no discretion to decide your case because the immigration judge is bound by the current law to decide your case. In asylum cases, the immigration judge must follow the law on asylum, but the application is also a matter of discretion.
We fight hard on our client’s behalf, but we cannot control the decisions of the immigrations judges. If we feel the immigration judge made a mistake, we will generally recommend that our clients file an appeal to the Board of Immigration Appeals.
Appealing to the Board of Immigration Appeals (BIA)
The most import thing to remember is that even though you may have lost the battle in the immigration court, the war is not over. The immigration court is your best chance of beating deportation, but the Board of Immigration Appeals (BIA) is you next best chance. The BIA is a federal immigration appeals court and every appeal from every immigration court goes to the BIA. This is a critical stage because, in general, the BIA can completely review the decision of the immigration court. Remember, you only have 30 days to file a notice of appeal to the BIA. The firm has won many cases on appeal to the Board of Immigration Appeals.
In some cases, the Department of Homeland Security (DHS) will appeal your case even though you won. You need an experienced attorney to protect your hard-fought victory in the immigration court.
An appeal to the BIA is a critical stage because, in general, the BIA can completely review the decision of the immigration court. Our firm will file a notice of appeal, review your immigration court transcript, prepare a brief, and reply to any response brief filed by the DHS. If the BIA determines that your case was wrongly decided, the BIA will remand your case back to the immigration court so that the immigration court can correct its mistakes, which means that you will finally be able to beat deportation.
However, if the BIA determines that the immigration court did not make any mistakes, your fight against deportation is still not over because you now have the right to appeal your BIA decision to one of the 11 federal courts of appeals.
Federal appeals courts
The federal appeals courts are your last hope at beating deportation. The federal appeals courts review decisions by the BIA. Congress has restricted the jurisdiction of the federal appeals courts in recent years making it more difficult to prevail in these courts. Nevertheless, this option should not be overlooked.
The federal appeals court can only decide your case based on the record in the immigration court and the BIA. It is very important to submit critical information to the BIA through either a motion to reopen or a motion to reconsider concurrent with any appeal to the federal appeals courts. Our firm specializes in strategic motions practice in the BIA and well-written and well-researched briefs in the federal appeals courts to give you the best possible chance to beat deportation.
If the federal appeals courts reverses a decision of the BIA, your case will be sent back to the BIA for further review. Once the case has returned to the BIA, further briefing may be necessary or the BIA will simply remand the case back to the immigration court.
THE SUPREME COURT of the United States
If the federal appeals court denies your case, the last and absolute final step is to apply for certiorari to the Supreme Court of the United States. The Supreme Court of the United States does not take many cases, but it does take several immigration related cases each year. Even though it is a long shot, it is still a viable option, especially if there is a difference of opinions in the federal courts of appeals.
Related Cases
March 14, 2022 – Citizen of El Salvador has motion to reopen granted in the Board of Immigration Appeals
July 11, 2022
Facts: In March of 2020, a citizen of El Salvador came to the firm seeking help with his immigration case because he had hired an attorney in 2017 to reopen his removal order, but as of March of 2020, this attorney had not even tried to reopen his removal order.
The Firm’s Representation: The firm immediately requested our client’s immigration files from the government through Freedom of Information Act requests. Upon review of our client’s immigration court file, the firm noticed that our client’s former attorney made a mistake and should have immediately filed a motion to rescind in 2017 but instead did nothing and let the deadline to file a timely motion to rescind elapse. The firm filed a motion to reopen and rescind based on ineffective assistance of counsel according to the Board of Immigration Appeal’s case of Matter of Lozada, 19 I&N Dec. 637 (B.I.A. 1988).
Proceedings: The firm’s motion was contested by the Department of Homeland Security (“DHS”). The firm wrote a response to the DHS opposition, but the Immigration Judge ultimately denied the motion for the reasons stated by the DHS. The firm timely appealed to the Board of Immigration Appeals.
Outcome: On March 14, 2022, the Board of Immigration Appeals reversed the decision of the Immigration Judge and reopened our client’s removal proceedings and the case was remanded back to the Immigration Judge. On June 13, 2022, the Immigration Judge dismissed our client’s removal proceedings so that he could pursue an immigrant visa abroad.
Comments: The firm prides itself on fighting for our clients when there has been an injustice. Here, our client hired an attorney to reopen his removal order, our client paid the attorney to do so, but the attorney never filed the motion to reopen and missed an important deadline, which is an injustice. It is also important to realize that the firm has no control over immigration judges and their decisions, but the firm will not stop fighting to get a positive outcome for our clients who have suffered injustices.
Citizen of Guatemala wins political asylum reversal from the Board of Immigration Appeals based on a claim of persecution for exposing political corruption in her home country
September 4, 2019
Facts: In September of 2016, a citizen of Guatemala came to the firm seeking help to apply for asylum.
The Firm’s Representation: Our client was the victim of death threats after she tried to expose political corruption in her home town in Guatemala. The firm believed that our client had a strong case for asylum based on persecution on account of her anti-corruption political opinion. At trial, the government conceded that our client merited withholding of removal, but opposed a grant of asylum. After taking testimony from our client, the immigration judge adhered to the government’s position and granted withholding of removal but denied the application for asylum. The firm quickly convinced our client to appeal to the Board of Immigration Appeals.
Outcome: On September 4, 2019, the Board of Immigration Appeals reversed the decision of the immigration judge finding that our client had indeed met her burden to demonstrate that she was the victim of past persecution on account of her anti-corruption political opinion and remanded the case to make findings, if any, that the country conditions in Guatemala have changed to such an extent that would rebut a presumption of future persecution.
Comments: This was an odd case because our client had what seemed like a very strong asylum claim based on exposing political corruption in her country and the firm was perplexed when the immigration judge denied the claim. Thankfully, the Board of Immigration Appeal recognized the strength of our client’s claim and reversed the immigration judge’s decision.
Citizen of El Salvador is granted asylum after the case was remanded from the Fourth Circuit and the Board of Immigration Appeals
July 18, 2019
Facts: In August 2014, a citizen of El Salvador came to the firm seeking help with his asylum case in the Baltimore Immigration Court.
The Firm’s Representation: The firm believed that our client had a good claim of asylum based on a fear of persecution on account of an imputed political opinion where the persecutor was motivated by mixed motives of local politics and financial gain. Unfortunately, the Immigration Judge denied our client’s asylum application in November 2015. The firm advised our client to continue to fight for his rights and the Immigration Judge’s decision was appealed to the Board of Immigration Appeals. Unfortunately, in November of 2016, the Board of Immigration Appeals denied our client’s asylum claim once again. Down but not done, the firm convinced our client to file a petition for review in the U.S. Court of Appeals for the Fourth Circuit.
Outcome: On June 6, 2017, the Fourth Circuit remanded our client’s case back to the Board of Immigration Appeals to re-consider our client’s direct appeal in light of the Fourth’s Circuit line of mixed-motive asylum case law. On September 28, 2017, our client’s case was remanded from the Board of Immigration Appeal back to the Baltimore Immigration Court. On July 18, 2019, our client was granted asylum.
Comments: The firm has won many cases on or after appeal. It may seem pointless to continue with your case in the face of repeated setbacks. But, the firm prides itself on fighting for our clients’ rights, no matter how long and how far, when we believe in merits of our clients’ cases. Here, our client received asylum and his wife and children were able to apply for asylum as derivatives.
Maryland Court of Special Appeals reverses the state court’s refusal to make SIJS findings for citizen of El Salvador
March 1, 2018
Facts: In early 2016, a citizen of El Salvador came to the firm seeking help for his minor child in removal proceedings.
The Firm’s Representation: The minor child had been abandoned by her mother in her home country in El Salvador, which would form a basis to seek Special Immigrant Juvenile Status (SIJS) in the immigration system. The first step is to seek an order of custody (or guardianship) and an order for SIJS findings in the Maryland state courts. In this case, the Maryland state court judge granted custody and granted the SIJS order for the minor child, but refused to make any underlying SIJS factual findings. Such an order would not be sufficient to obtain SIJS benefits in the immigration system. The firm appealed to the Maryland Court of Special Appeals.
Outcome: On March 1, 2018, the Maryland Court of Special Appeals held that the state court judge had a duty to make specific SIJS factual findings and remanded the matter back to the state court to make such findings. The case was published as Martinez v. Sanchez, 180 A.3d 158, 159 (Md. Spec. App. 2018) and is widely cited as authority compelling Maryland state circuit court judges to make SIJS factual findings in custody and guardianship cases that request such findings. On remand in our client’s case, the Maryland state court judge made the SIJS findings and the firm filed a self-petitioning I-360 SIJS visa petition on behalf of our client’s minor child.
Citizen of El Salvador is returned to the United States after victory in the U.S. Court of Appeals for the Fourth Circuit
April 14, 2014
Facts: On May 28, 2013, a citizen of El Salvador was ordered deported by the Department of Homeland Security (DHS) according to a final administrative order of removal. The family of the citizen of El Salvador came to the firm for help.
The Firm’s Representation: Our client had a conviction for fourth degree sex offense in Maryland. DHS alleged that the conviction was an aggravated felony, sex abuse of a minor. Immediately, the firm contacted DHS and demanded to file a rebuttal to DHS’s allegations. DHS also refused to turn over the conviction records upon which it made its aggravated felony determination. However, after consulting with their attorneys, DHS relented and turned over the records for inspection by the firm and permitted the firm to file a rebuttal. The firm wrote a rebuttal within several days and submitted it to DHS. DHS refused to change their position and ordered our client removed. The firm filed a petition for review in the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit). Unfortunately, the firm could not stop our client’s physical deportation because the prevailing case law of the Fourth Circuit for stays does not permit a stay of deportation for circumstances such as our client’s circumstances. After filing the opening brief in the Fourth Circuit, the attorneys for the government realized that the DHS’s position was untenable. DHS was forced to rescind the final administrative removal order. The firm then began the process of getting our client returned to the United States. After some reluctance, DHS issued our client a parole document so he could return to the United States. On April 14, 2014, our client returned to the United States.
Outcome: Our client’s case was decided by the U.S. Immigration Court in Baltimore, Maryland. Our client can seek the relief of Temporary Protected Status (TPS). On June 3, 2014, the Immigration Judge re-instated our client’s TPS and our client was released from ICE detention later that day.