OUR COMMITMENT TO THE READER
This website explains to you the "what", "when", "where", "how" and the "why" reasons, it is always in your best interest to file an appeal of an order of deportation. This is true without regard to whether the order entered against you was issued by an immigration judge or by the Board of Immigration Appeals (the "BIA"). You are now entering the only world-wide-web site (website) exclusively dedicated to explain to you the appellate processes involving deportation appeals. Written in common language to avoid confusing legal terms, this website also helps you understand the most important questions you should ask an immigration lawyer when looking to hire one to represent you in any deportation appeal process, including in a petition for review before the United States Court of Appeals. This website also provides you with the information you need to understand the same "what", "when", "where", "how" and the "why" requirements for filing a "motion to reopen" a deportation order, a "motion to remand" or a "motion to reconsider" any such deportation order, without regard as to what city and state of the United States you live in now, or in what city and state the deportation order was originally issued.
Searching the internet looking for an immigration lawyer to file a deportation appeal (or to file a motion to reopen, or to remand, or to reconsider, before the BIA, or the immigration judge) can be a very difficult thing to do. Reading this website page will give you invaluable knowledge in helping you choose the right lawyer for your deportation appeal case. You are well-advised to read the "9 reasons to hire a deportation appellate lawyer" contained below in this page before hiring that lawyer.
Note that the words deportation and removal are synonymous terms in immigration parlance (see glossary below towards the end of the page for more details).
This Home Page covers only the subject of "deportation appeals".
[To find nformation about other covered subjects in our website such as motions to reopen, orders of reinstatement, stay of deportation, or summary removals et cetera, click on the corresponding underlined links here or at corresponding titles at the top of the page inside the blue box]
But first things first—what is an appeal?
Consider the following facts to assist us in answering that question:
1. Absent a few exceptions (i.e., persons previously deported from the US; persons attempting to enter the US at the border or that have only recently arrived to the US; or persons being removed from the US under an "expedited" process), agents from the Immigration and Customs Enforcement (“ICE”) or the Border Patrol ("BP") are not legally authorized to physically remove a person from the US unless the ICE or BP agents first obtain an order from an immigration judge allowing the ICE or BP agents to deport that person.
2. Once the immigration judge issues an order authorizing the ICE or BP agents to deport that person, the ICE or BP agents are still not legally authorized to physically deport that person, if that person after being ordered deported by the judge at the end of the proceedings "reserves" his or her right to appeal the judge's decision to a higher authority and files the appeal in a timely manner. (If the person in that situation does not reserve his or her right to appeal the judge's decision, and the person is in the custody of ICE or BP, the agents can physically remove that person from the US immediately or as soon as possible) In essence, the person that reserves his or her right to appeal the order of the judge is requesting that a higher authority named the Board of Immigration Appeals “review” that order of the immigration judge for errors. The taking of an appeal is accomplished by filing a Notice of Appeal[EOIR-26] of the order of the immigration judge with the Board of Immigration Appeals, as long as the Notice of Appeal is received with the Board within the first 30 days after the immigration judge issued the order of deportation.
Can you imagine how unfair it would be if the order of an immigration judge could not be "appealed" (meaning checked for correctness through an appeal process)? Judges would be kings and their orders would be unchangeable!
3. Assuming that a person files a Notice of Appeal with the Board of Immigration Appeals within the first 30 days of the order of the immigration judge, and assuming further that the Board thereafter—within 1, 2 or 3 years later, more or less, denies the appeal, the ICE agents only then can begin the process to physically remove that person from the United States, but not before. This appeal level is referred to as an "administrative" appeal.
4. Except however that if the same person decides to also file an appeal (within the first 30 days) of the order of the Board of Immigration Appeals denying the appeal from the order of the immigration judge, to an even higher court (a Federal Circuit Court of Appeals of the United States) and assuming further that court also orders a "stay" of the final order of deportation of the Board, then, ICE agents are still not authorized to physically remove the person from the US until such Federal Circuit Court of Appeals, either 1, 2 or 3 years later, more or less, decides the deportation case against that person. This appeal level is referred to as a "judicial" appeal.
Therefore, an “appeal” (in the context of an order of deportation) is a formal request made by the noncitizen that has been ordered deported by an immigration judge, filed in a timely manner (within 30 days), which commences a new review adjudication process wherein that order of deportation will be reviewed by a higher level judge, or panel of judges, for the purpose of determining if that order of deportation is correct, and thereon will be affirmed, or is incorrect and thereon will be overruled, or vacated, or remanded.
Said differently, all similarly situated noncitizens have the legal right to have three (3) adjudicatory "review" levels of their cases. The first level of review takes effect in front of an immigration judge. But if the noncitizen loses the case before the immigration judge, the noncitizen has the legal right to a second level of review that takes effect in front of the Board of Immigration Appeals, and if the noncitizen again loses the case before the Board, the noncitizen has the legal right to a third level of review in front of a Federal Circuit Court of Appeals of the United States. Only the second and third adjudicatory review levels mentioned above are considered as true "appeals" because the first adjudicatory review level is considered an original review level (much more on that difference is found further below). Most noncitizens are under the erroneous belief that when an immigration judge orders deportation in a case, the noncitizen has no other defenses and therefore will be forced to leave the United States immediately. That belief is incorrect.
And how likely is it, really, that an immigration judge
would commit errors in his/her decision?
As a general background, you should not be surprised to learn the answer to this question. Here you should employ your own common life experiences in other sectors of the professions in search for the answer. For example, it should not be surprising to you that immigration judges commit errors; or that the rate of error committed by immigration judges throughout the United States varies from city to city and from courtroom to courtroom. Immigration judges (like any other judges) are humans just like the rest of us and are subject to commit the same errors, for all of the same reasons we are subject to commit errors in our own lives. Immigration judges will face difficulty in always separating their own prejudices in their life experiences when determining if a noncitizen or witness is testifying truthfully or deceivingly, or whether the noncitizen or witness is showing remorse for a wrong committed for which the nonticizen is being deported, or whether the noncitizen deserves forgiveness for the wrong committed to prevent her deportation. The task of judging in any such case is by no means an exact science because the humans that do the judging bring to their courtroom their own idiosyncrasies and life experiences to the bench. And, if they are successful in detaching themselves from those experiences when hearing the testimony of witnesses in court in most cases, it does not mean or guarantee that they will be able to always maintain that rate of success. But errors can be "legal" or "temperamental" and while they may equally result in a wrongful decision they are substantively different.
More specifically, some federal circuit judges, whom have been granted the authority by federal law to review the decisions made by administrative immigration judges on appeal, have harshly criticized some of their performances, their conduct during the deportation proceedings and even for lack of competence as judges. Significant numbers of these criticisms have been published throughout the United States: "Lawless Courts", The Nation, November 8, 2010; "'Bullying' Immigration Judge Absent, Replaced," Philadelphia Inquirer, June 2, 2006; "Lawless Courts" Lack of Accountability Allows Immigration Judges to Violate Laws, Deport US Citizens. October 22, 2010; Some Immigrants Meet Harsh Face of Justice; Complaints of Insensitive—Even Abusive—Conduct by Some U.S. Immigration Judges Have Prompted a Broad Federal Review, L.A.Times, February 12, 2006; Courts Criticize Judges' Handling of Asylum Cases, N. Y. Times, December 26, 2005, among many other published articles in the last decade. Keep in mind however that not all immigration judges fall under this category and many are well-meaning and more successful than others in detaching their personal idiosyncrasies and prejudices from influencing their time at the immigration court benches. But legal errors can also be made by immigration judges not as a result of the conduct referred to in those articles, but simply because of misapplying the right rule of law to a set of facts presented in a particular case. Hence, what is important here is to keep in mind that immigration judges will make mistakes in the performance of their duty as any other judges.That is why our administrative and judicial systems incorporate different layers of review so as to enable the parties the opportunity to catch those errors through the appeal processes. It is also referred to as "procedural due process."