Immigration Appeals

I have extensive experience in federal court litigation and related areas. I have represented clients before United States Court of Appeals, federal district courts, and administrative appellate bodies, namely the Board of Immigration Appeals (“BIA”) and the Administrative Appeals Office (“AAO”).

Appeals

I handle the following types of cases in federal courts:

USCIS appeals in District Court

When USCIS denies your case, you can generally file an administrative appeal. The Administrative Appeals Office has jurisdiction on most employment-based immigrant and nonimmigrant visa petitions, fiancée Visa petitions, waiver applications. The Board of Immigration Appeals has jurisdiction over denied I-130 petitions, non-immigrant waiver applications, as well has decisions made by immigration judges. In certain kind of cases, such as applications for adjustment of status, there is not even an option to file an administrative appeal.

Many visa or green card applicants mistakenly believe that nothing can be done after their case has been denied by the USCIS, the AAO or the BIA. This is particularly true in adjustment of status (Form I-485) denial decisions made by USCIS, because there is no administrative appeal available to such decisions.

However, most USCIS decisions can be appealed in a U.S. District Court under the Administrative Procedure Act, 5 U.S.C. § 706. Under section 706, a USCIS decision can be reversed if it was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or if it was taken without observance of procedure required by law. This is a limited scope of review, where a district court will determine whether the USCIS decision was based on a consideration of all the relevant factors and whether there has been a clear error of judgment.

In a case brought under section 706, a Court will generally give deference to USCIS. However, there are many instances where this narrow “arbitrary and capricious” standard can be met, such as where:

USCIS misinterpreted a U.S. Supreme Court precedent.
USCIS had no authority to act.
Congress has directly spoken to the precise question at issue.
The USCIS decision is entirely unsupported by regulations, rulings, or administrative practice.
The USCIS interpretation of an issue conflicts with an earlier interpretation.
The Court has experience in the subject matter and does not necessarily need give deference to USCIS.

When an application for adjustment of status is denied, the government may decide to initiate deportation proceedings against the applicant, unless in the rare instances where the applicant is already in the United States on an unexpired non-immigrant Visa. If an immigrant is placed in deportation proceedings after his or her I-485 is denied, the application can be renewed with an immigration judge.

However, in many cases the adjustment of status applicant is not placed in deportation proceedings, and because there is no administrative appeal available, the denial decision becomes final, unless challenged in a federal district court under 5 U.S.C. § 706.

If your I-485 was denied, please contact me to see if you should try to appeal it to a federal court.

Supreme Court Litigation

You may challenge any adverse decisions of the U.S. Courts of Appeals to the U.S. Supreme Court. However, appeal to the Supreme Court is not automatic. You must first file a Petition for Writ of Certiorari (“cert.”) with the Supreme Court, which will only hear your appeal when it grants the petition. The U.S. Supreme Court typically only hears appeals raising significant policy implications affecting rights of numerous individuals or cases where, the U.S. Courts of Appeals reach different decisions on identical legal issues. I am admitted to practice before the U.S. Supreme Court.

Petitions for Review before U.S. Courts of Appeals

Persons who were issued orders of removal by an Immigration Judge and subsequently lost their administrative appeals before the Board of Immigration Appeals (“BIA”) may challenge the adverse decisions of the BIA by filing a petition for review to the U.S. Court of Appeals that has jurisdiction over the states where the removal proceedings were completed. For example, if your removal proceedings was completed in New York, you must file your petition for review with the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over states of New York, Connecticut and Vermont.

U.S. Courts of Appeals are divided based on geography. There are twelve (12) judicial circuits defined by geography, including the eleven (11) “numbered” circuits and the D.C. Circuit, and the Federal Circuit that only hears specialized matters. The D.C. Circuit also hears appeals from agency decisions and rulemaking. The Federal Circuit hears appeals from specialized trial courts, primarily the United States Court of International Trade and the United States Court of Federal Claims. The Federal Circuit also hears cases from the district courts in patent cases and certain other specialized matters.

Habeas Corpus Proceedings in U.S. District Courts

Persons may challenge removal orders, denial of bond, unlawful detention and other adverse decisions of the U.S. Department of Homeland Security, Immigration Judges and the BIA by filing a Petition for a Writ of Habeas Corpus in federal district court.

Mandamus Actions in U.S. District Courts

Persons may challenge delay of governmental action in adjudicating their immigration benefit applications by filing a mandamus action in federal district court. I filed many petitions for a Writ of Mandamus challenging USCIS’ inaction on clients’ immigration cases.

Class Action in U.S. District Courts

Persons may challenge unlawful governmental actions affecting numerous individuals who share similar backgrounds by filing a class action in federal district court.

Denaturalization Proceedings in U.S. District Courts

Post-9/11, the U.S. government has been actively instituting denaturalization proceedings in federal district courts against naturalized U.S. citizens whom they otherwise would not have in the past. Denaturalization proceedings were typically brought against former-Nazi members and war criminals. However, most recently, a naturalized U.S. citizen has been denaturalized for his criminal conviction that occurred after he became a citizen on the theory that he lacked good moral character before becoming a citizen for failing to provide information to the government that he committed criminal acts for which he had not been arrested.

Contact a New York Immigration Attorney if your case was denied and you want to file an Appeal.