Appeals and Litigation

Mandamus Actions

A “Mandamus Action” is a lawsuit used to compel someone, such as an officer or employee of the United States government, to act on an administrative matter that is not discretionary; where they have a legal duty to do so and have not. In the context of immigration law this generally means that a government entity such as the U.S. Citizenship and Immigration Services (USCIS) is charged with making a ruling on a petition of some form and has not provided a decision after a considerable period of time.

When appropriate, mandamus actions are brought on behalf of clients who have immigration filings that are pending indefinitely through inaction by USCIS or the service’s refusal to proceed with case processing. Of course, because the defendant is the government, these are federal cases that are tried in U.S. District court and it is not advisable to bring a “writ of mandamus” unless all reasonable administrative remedies are exhausted. There are common misunderstandings as to what a mandamus action can provide. No matter how strong the case, the suit cannot compel a favorable decision on behalf of a plaintiff, it only forces a decision to be made, which might be the approval, or even the denial of a petition.

Motion to Reopen

A Motion to Reopen can be made with the Immigration Court unless jurisdiction is vested with the Board of Immigration Appeals (BIA), then the Motion to Reopen must be submitted with the BIA. The purpose of a motion to reopen with the Immigration Court or the BIA is to have the court or the BIA review the case for either of the following reasons:

There is new material evidence that was not available and could not have been discovered at the time of the hearing before the court or review by the BIA; or

There are changed conditions, including a change in the law or facts that may make the individual eligible for relief from removal; or

An in absentia removal order was entered because of the removed individuals’ failure to appear at immigration court and the removed individual wishes to have the court review the reasons for the failure to appear.

A Motion to Reopen should state the new facts that will be proven at a later hearing if the motion is granted and that the facts will be proven by supporting affidavits and other evidentiary material.

A Motion to Reopen generally must be filed within 90 days of the final removal order. However there are certain exceptions to the 90 day time frame. A motion to reopen can be made at any time in Asylum, Withholding of Removal or Convention Against Torture cases if based on new evidence concerning changed country conditions arising in the country to which removal was ordered. In other words, if there are new developments in the home country of the removed person that may affect their prior asylum claim; new evidence can be submitted with a Motion to Reopen at any time. If based on an order of removal entered in absentia due to “exceptional circumstances” a motion to reopen must be made within 180 days of the order. If made in absentia due to a failure to receive proper notice or if the alien can demonstrate that he or she was in Federal or state custody, the motion may be made at any time.

Motion to Reconsider

A Motion to Reconsider can be made within 30 days of a final administrative order by either the Immigration Court or the BIA and should state the reasons for the motion. Reasons for this motion can vary from case to case but in general it is a legal argument alleging any errors of fact or law in the Immigration Court or BIA’s prior decision and the motion should be supported by statutes, regulations, and case law.

BIA Appeals

The Board of Immigration Appeals (BIA) is part of the Executive Office of Immigration Review (EOIR). The BIA reviews immigration court decisions to see if a correct analysis and decision was made by the Immigration Judge. Immigration Judge’s preside over immigration courts and they are in charge of adjudicating individual cases everyday. Appeals of immigration court decisions are filed with the BIA, who then review the judges’ decisions.

Once the immigration judge (IJ) renders his/her final order, the Respondent (person in removal proceedings) has 30 (thirty) days to appeal that decision before the BIA. The process is as follows:

The Respondent files the notice of appeal with the appropriate filing fee prior to the 30 days expiring;

Following the Notice of Appeal, the BIA is going to send a briefing schedule to the Respondent or his/her attorney. The briefing schedule gives the Respondent some time to submit a legal brief describing his/her arguments in support of the appeal. If the Respondent does not send his/her legal brief on time, the appeal could be dismissed. This means, the Respondent would lose their case and the case deemed concluded;

If the Respondent submits his/her legal brief, the BIA will take some time to make its decision.

Once the BIA renders its decision the immigration case is over. There are exceptions to this, in certain cases when the decision is adverse to the Respondent, the Respondent may appeal before the U.S. Federal Court for the Circuit where the Respondent resides. This federal appeal must be filed within 30 days after the BIA renders its decision. The BIA appeal process can take anywhere from 8 to 12 months and at times even longer, depending on the complexity of the legal issue under review.

Federal Appeals (Petition for Review)

The United States Circuit Courts of Appeals hears appeals from the district courts as well as appeals from decisions of federal administrative agencies. The immigration courts and the Board of Immigration Appeals (BIA) are federal administrative agencies. Therefore, the Circuit Courts have jurisdiction over immigration appeals from BIA decisions. Florida and Georgia are part of the 11th Circuit Court of Appeals and it is to this circuit where a federal appeal is filed if you reside in these states.

As stated earlier, if the Respondent loses his case before the immigration court, they may appeal before the BIA. If the BIA appeal is adverse to the Respondent and there is proper judicial basis for a federal appeal, the Respondent may file an appeal before the Circuit Court of Appeals having jurisdiction over the immigration court that decided their case. A federal immigration appeal can only be filed 30 days after the BIA’s decision is rendered. If the appeal is not filed within these 30 days, the Respondent loses their right to file a federal appeal. Respondent’s can file federal appeals to contest most BIA decisions, however there are certain issues in which federal review of BIA decisions is limited. In general, a federal appeal may be filed to contest a BIA decision on an appeal, motion to reopen, motion for stay or a motion to reconsider.

Federal Appeals are more time demanding and complicated than BIA appeals. Therefore it is wise for a Respondent to consider other alternatives prior to exploring this option. If a Respondent timely files a federal appeal, and wins, the case is remanded to the BIA for further processing. In the other hand, if the Respondent loses their federal appeal, their last recourse would be a petition for certiorari before the United States Supreme Court. Respondent’s should realize that most immigration cases do not have standing for a certiorari. Very few immigration cases have been certified for review by the United States Supreme Court. Thus, it is fair to say that, in the majority of cases, the federal appeal is the last judicial recourse for an immigration case.