Transcript Slide 1

Seeking Relief Through Appeals
Appeals Before The Administrative Appeals Office (AAO)
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Should a petition or application be denied or revoked by the USCIS, in most
cases the alien may appeal that decision to a higher authority.
There are strict deadlines that must be met to properly file an appeal. T
The appeal must be filed with the correct fee at the office that made the
original decision. The alien may file a brief in support of the appeal
In addition to the right to appeal, the alien may file a motion to reopen or a
motion to reconsider with the office that made the unfavorable decision.
A motion to reopen must state the new facts that are to be provided in the
reopened proceeding and must be accompanied by affidavits or other
documentary evidence.
A motion to reconsider must establish that the decision was based on an
incorrect application of law or USCIS policy, and further establish that the
decision was incorrect based on the evidence in the file at the time the
decision was made.
Any motion to reopen or reconsider must be filed with the correct fee within
30 days of the decision.
Seeking Relief Through Appeals
Who May Appeal?
• The person bringing the appeal must have standing.
• Only the person that submitted the original application or
petition may file the appeal.
• The petitioner alone has standing to appeal the denial of
a visa petition.
• The beneficiary of a visa petition may not appeal the
decision.
Seeking Relief Through Appeals
• What Are the Processing Times on Appeals?
AAO Processing Times on Appeals (as of December 18, 2007)
Case Type
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I-140 EB1 (A)
I-140 EB1 (B)
I-140 EB1 (C)
I-140 EB2
I-140 EB3
I-687, 698, 700
I-526 EB5
I-129 L
I-129 H1B
I-129 H2, H3
I-129 O
I-129 F
Time
Alien with Extraordinary Ability
Outstanding Professor or Researcher
Multinational Manager or Executive
(D) - National Interest Waiver
(E), (G) - Skilled, Professional, or Other Worker
Legalization Applicant; Special Agricultural Worker
Alien Entrepreneur
Nonimmigrant Intracompany Transferee
Nonimmigrant Specialty Occupation Worker
Temporary Nonimmigrant Worker
Nonimmigrant Extraordinary Ability Worker
Petition for Fiancée
11 Months
Current
Current
14 Months
11 Months
12 Months
Current
Current
8 Months
Current
10 Months
Current
Seeking Relief Through Appeals
Appeals Before The Administrative Appeals Office (AAO)
Forms Required
I-290
G-28 (if appearing before the Administrative Appeals Office)
Documents Required
Decision of the district director;
Legal Brief; and
Documents to support the facts of the brief
Seeking Relief Through Appeals
Appeals Through The Immigration Court
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Notice to Appear
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Initiates the Removal Process
Created by a Homeland Security Officer
The Officer must serve all parties with a copy of the
Notice
The notice gives the statutory citation of the grounds of
removal that the alien is charged with.
Hearing Date Issued (Master Calendar Hearing)
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The alien & his/her attorney must admit or deny
each allegation in the Notice to Appear
This is the alien’s “first appearance” in Court.
Seeking Relief Through Appeals
3. Individual Merits Hearing
 After the Master Calendar Hearing, the Judge will
schedule
 an Individual Merits Hearing.
 The alien may call witnesses at this hearing.
 The Federal Rules of Civil Procedure Apply
4. Judge’s Opinion Issued
 The judge will state whether the alien will be removed from
the U.S. or whether he may remain.
Seeking Relief Through Appeals
5.
If the alien does not like the Judge’s opinion, he may
appeal to the Board of Immigration Appeals (BIA) within
30 days
 The BIA will not hear new testimony.
 The BIA is an administrative appellate body that is part
of the U.S. Department of Justice.
 BIA decisions are the final administrative action in a
given case.
 The next stage of appeal after a BIA decision is usually
in the U.S. Court of Appeals, if an appeal is allowed by
statute.
 The BIA is located in Falls Church, Virginia, and
comprises 11 Board Members, who are administrative
judges appointed by the U.S. Attorney General.
Board of Immigration Appeals
Forms Required
Form EOIR-26
Form EOIR-27
A photocopy of the evidence submitted to the BIA must be submitted to
the government attorneys.
Documents Required
Decision of the district director;
Legal Brief; and
Documents to support the facts of the brief
Cancellation of Removal
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Alien is a lawful permanent
resident (LPR)
ALIEN MUST PROVE:
1. Lawfully admitted to the U.S. for no
less than 5 years; and
2. Continuously lived in U.S. for 7yrs.;
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3. Not convicted of an aggravated
felony; and
4. Removal to another country would
be an extreme hardship to his
spouse, parent, or child who is a
LPR
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Non-permanent resident alien
ALIEN MUST PROVE:
1. Continuously present in the U.S. for
no less than 10 years; and
2. Good moral character for those 10
yrs; and
3. Has not been convicted of criminal
grounds of inadmissibility (EX: drug
and people traffickers); and
4. No conviction for falsifying a
document or failure to register for
the draft; and
5. Removal would cause exceptional &
extremely unusual hardship to his
spouse, parent, or child who is a
LPR.
14 Hardship Factors for Cancellation of Removal
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Immigration history of the alien
Country Conditions in alien’s native country
Community ties
Assimilation into the U.S. culture
Position in the Community
Attachment to friends in the community
Occupation
Health Conditions
Age at time of arrival
Age Now
Length of residence in the U.S.
Family Ties in the U.S.
Other means of adjusting the alien’s status
Financial Status