If you are in deportation, exclusion or removal proceedings, it is important to remember that if both the Immigration Judge and the Board of Immigration Appeals (BIA) deny your case, in most cases, you can petition the Federal Appeals Court for review. Experience shows that most of the judges in the Ninth Circuit Court of Appeals, which has jurisdiction over California and the surrounding states, are more likely to reverse the BIA than are judges in any other circuit.
Examples of Successful Results
Over the past few years, our law firm has compiled an outstanding record in cases involving appeals to the Federal Courts. We have not won every case in federal court, but by appealing meritorious cases to Federal Court, we have achieved extraordinary results on behalf of our clients. Below are summaries of our most recent cases:
Mr. N (Los Angeles) - In this case, a person who had overstayed his visa purchased a fraudulent U.S. passport. He was placed under deportation proceedings. In 1990, his former attorney submitted a request for asylum to an Immigration Judge which was simply a stalling tactic. The Judge ordered the man deported. Mr. N retained our firm to appeal the Judge's order.
Both the BIA and the Federal Courts upheld the Judge's order. However, in the meantime, we obtained a labor certification and an approved visa petition through our client's employer. When the BIA denied our motion to reopen the case, we appealed a second time to the Federal Courts. This time, the Federal Courts ruled in our favor, remanding the case to the BIA which reopened the case. Recently, the same judge who had originally ordered our client deported in 1990, upon consideration of the new facts in the case, granted Mr. N a green card.
Mr. K (San Diego) - Here, our client, a permanent resident, did not retain our services until he was ordered deported both before the Judge and the BIA. We quickly appealed to the Federal Courts. Since our client was deportable because of an old drug conviction, the Federal Courts rejected our appeal. However, INS was unable to deport Mr. K because he had given up his citizenship of his native country. Mr. K later married a U.S. citizen, and had two citizen children. Due to his substantial period of reformation, and his strong family ties, we submitted a Motion to Reopen his case to the BIA. The BIA reopened the case, and the Immigration Judge granted him a waiver which allowed him to remain a permanent resident.
Ms. F (Los Angeles) - Here, a woman engaged in a fraudulent marriage with a U.S. citizen five weeks after she entered the U.S. as a visitor. Her former attorney applied for adjustment of status, and after she divorced her husband, political asylum. The Judge order her deported. Later, she entered into a legitimate marriage with a permanent resident (who is now a citizen), and they had two citizen children. The BIA reopened her case to allow her to apply for adjustment of status, but did not allow her to apply for suspension of deportation. She retained our law firm to represent her.
The Judge, because of the phony marriage, again ordered her deported. We appealed to the BIA which upheld the Judge's order. We then appealed to the Federal Courts stating that, at a minimum, our client should be given the opportunity to apply for suspension of deportation in order to keep her family intact. The government attorney phoned me from Washington, D.C. and agreed that, as stated in my appellate brief, the BIA had made mistakes in their decision. We stipulated to allow the BIA to reopen her case to make a new decision. We are currently waiting for a new decision from the BIA.
Mr. O (San Francisco) - Sometimes, there are certain procedural hurdles that must be overcome before going to Federal Court. A few months ago, a man drove a few hundred miles to retain our firm. The BIA had denied his application for asylum, and his former attorney had appealed the case to the Federal Courts. When it came time for the attorney to submit a written brief to the court, he failed to do so. By the time that the man came to see me, it was too late to ask the Federal Courts to reopen his case. Instead, our office filed a motion with the court to recalendar the briefing schedule due the ineffectiveness of his prior counsel. The court granted our motion. The court has yet to rule on the man's asylum case. Meanwhile, his priority date through his permanent resident wife gets closer each month.
Mr. C (Sacramento) - Despite the assistance of an excellent attorney, Mr. C's asylum application was denied by INS, an Immigration Judge, the BIA and the Federal Courts. However, 18 months before the Federal Court dismissed the case, Mr. C's attorney filed two motions to reopen before the BIA, one for asylum based on new facts and one for suspension of deportation.
As soon as we were retained, we filed a motion with the Federal Courts to stay their "mandate" (final order) until the BIA ruled on the two motions. The Court granted our motion. The BIA reopened the case, and the Immigration Judge granted the man, his wife and his two daughters asylum.
Conclusion
The rules for appealing a case to the Federal Courts are complicated, and the amount of research and preparation is immense. However, as the above cases demonstrate, the results can sometimes be dramatic. It is better if you can win your case before the INS, or before an Immigration Judge or the BIA. However, should you not be successful, think seriously about appealing your case to the Federal Courts.
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