Federal Court Appeals
District Court and Federal Court of Appeals Cases
Not every immigration case goes as planned. Even a slight mistake or procedural error can cause the denial of visa petition or citizenship application. USCIS decisions and rulings of immigration judges can be appealed, depending on the kind of case, to either the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO). Most decisions of the BIA or the AAO can be appealed to either a Federal District Court or a Federal Court of Appeals.
When a case is appealed in Federal Court, the burden of proof for the appellant is very high. A Federal Court will reverse an administrative decision only when it was arbitrary, capricious, or not otherwise in accordance to the law. This means that, as a general rule, a Federal Court will not second-guess the interpretation of the law provided by an administrative agency, unless that interpretation is impermissible or implausible. The only exception to this rule is in Naturalization cases.
As a New Jersey Immigration Lawyer, I can assist file an appeal in Federal Court against an unfavorable decision of USCIS, BIA, AAO or an immigration judge. I am admitted to practice in New York, New Jersey, the U.S. District Court, Southern District of New York and the District of New Jersey. I am also admitted to the Federal Court of Appeals for the Second and Third Circuit.
Get started today and discuss your case during a consultation! Call 973-814-4408.
Appeal of Denial of I-130 (Marriage Fraud)
Form I-130 (Petition for Alien Relative) is used of immigrant, family-based petition to allows U.S. citizens and lawful permanent residents to sponsor their close family members (unmarried children under 21 and spouse) for permanent residency status (Green Card) in the United States.
The vast majority of the denied I-130 cases involve spouses. When an I-130 in favor of a spouse is denied, it is important to determine why USCIS denied the petition.
There usually are two reasons:
- You did not provide enough evidence to prove that you are in a bona fide marriage (lack of documentation of your genuine marital relationship) or
- The USCIS determined that you entered into a fraud marriage, whose sole purpose was to elude immigration laws. Marriage fraud is a serious immigration violation with long-lasting consequences.
I-130 Denied? You Have Two Options
The first is to re-file the case. You must put together any document that show the validity of your marriage, such as:
- Lease or mortgage contracts showing joint occupancy or ownership;
- Birth certificates of children born during the marriage;
- Joint financial records, such as joint bank accounts, joint tax returns, loans, or joint insurance policies.
The second option is to
appeal to the BIA, by filing Form I-290B. The appeal process could take years to be completed. As soon as you receive a denial, consult with an experienced immigration attorney to evaluate the strength of your case and to recommend the best course of action.
Denials of family-based immigrant petitions are treated very seriously under U.S. law, as they could lead to a permanent ban on future petitions under Section §204(c) of the Immigration and Nationality Act (INA).
Only 30 Days to File Your Appeal
A Notice of Appeal to the USCIS Field Office must be filed
within 30 days of the decision.
- If USCIS determines that the appeal is not likely to overcome the grounds for denial, a Record of Proceeding (ROP) will be prepared. The ROP consists to the appeal and the supporting documents filed by the petitioner.
- The Field Office will then forwards the ROP to the USCIS' attorney (Office of the Chief Counsel). The Counsel reviews the ROP and prepares arguments on behalf of the U.S. Government.
- After that, the ROP is forwarded to the BIA for review. The BIA usually issues a decision within 6 months.
- Finally, unfavorable decisions of the BIA regarding immigrant petitions for a spouse may be appealed to the U.S. District Court that has jurisdiction where the petitioner lives.
Appeal of Decisions of the AAO
The AAO hears cases including employment-based immigrant petitions under INA §204(b), and non-immigrant worker petitions under INA §214, denials of re-entry permit applications, or revocation of approvals of immigrant visa petitions as well as some citizenship matters. The appealability of AAO decisions is determined by federal immigration statutes.
You can challenge an AAO appeal denial in a U.S. District Courts. When you have used up all the administrative remedies, and you have an AAO denial decision, a Federal District Court challenge is your last solution a doctrine known as "exhaustion of administrative remedies." This doctrine means that a party has to pursue all the available administrative remedies before seeking relief from a Federal Court.
Appeal of Decisions of the BIA
The BIA reviews decisions by immigration judges and has appellate jurisdiction over family-based immigrant petitions under INA § 204(a) as well as orders of removal and applications for relief from removal, as well as motions for reopening and reconsideration of decisions previously rendered.
The BIA may affirm, reverse, or remand the decision of an Immigration Judge. However, BIA decisions constitute a final administrative action in a given case. In most cases if the BIA affirms the denial decision. However, you can appeal the BIA ruling in the
U.S. Court of Appeals (U.S. Circuit Courts).
Denial of Applications of Naturalization
If your application for Naturalization has been denied by the USCIS, and if you believe the denial is not warranted, you can ask for a hearing before a new immigration officer, by filing a request for an
administrative review within
30 days of the date you are notified.
To request an administrative review, you must file Form N-336 (Request for a Hearing on a Decision in Naturalization Proceedings) with the local USCIS district office. The applicant may be asked supplementary documentation and be subjected to an additional civic test and an English ability exam.
If the citizenship application is denied again, the applicant can appeal to the U.S. Federal District Court. The federal court judge will review your application
de novo, rendering his own decision without regards to the denial reasons rendered by the USCIS.