"I want to appeal my order of deportation by the immigration judge--What considerations should I be aware of?"
First, if you have an order of deportation by an immigration judge you are well-advised to seek competent counsel immediately. The immediacy is due to the fact that you only have 30 days for the notice of appeal (EOIR-26) to be received by the Board of Immigration Appeals (BIA). Notice we did not say mailed by but received by the BIA. You or your attorney must closely review the instructions to Form EOIR-26 and make sure the form is carefully filled out. Moreover, the form contains a space for the reasons for the appeal and you should meet with counsel to determine appropriate reasons for appealing your decision from the immigration judge.
Appeals can be tricky because there may be several distinct reasons for the appeal. There can be factual and also legal errors made in the court below. Moreover, there can be discretionary decisions made below. In addition, situations arise concerning the type of claims raised and there may changed circumstances or other ancillary issues which need to be brought up on appeal. How you present your appeal in the notice of appeal is crucial. Furthermore, because some appeals may be summarily dismissed if key issues are not set forth the preparation of the notice of appeal is key. If insufficient reasons exist for appeal, then your case can be summarily dismissed.
Appeals are also difficult because of the types of relief granted below. For example, some respondents have been granted voluntary departure. Depending on the type of voluntary departure a respondent may have waived his or her right to appeal. Even if they did not waive appeal, some people may be hesitant to appeal, believing they are giving up a chance to leave the U.S. voluntarily. Nevertheless, there are ways to preserve this right and still pursue the voluntary departure even if appealing the underlying decision denying other forms of relief below.
Once the notice of appeal is correctly filed, and fee paid or waived, then the BIA will provide you or your attorney with the written transcript of proceedings. Once a transcript is received, you and your attorney will further discuss your testimony before the immigration court. Specifically, any issues which were incorrectly decided, not preserved for appeal, or not brought up sufficiently either through testimony or evidence must be determined. It is not enough to rely on just the applications or other written materials submitted to the judge below, but the transcript must be closely reviewed and evaluated.
Once the transcript has been received, your attorney will begin preparing the appellate brief. An appellate brief is a written legal argument. Depending on the complexity of the issues, an appellate brief can be relatively short or, in certain cases, be very involved and lengthy. Your attorney must also consider and speak with you about any other ancillary considerations which go along with filing the appellate brief, such as possible motions to remand, submitting further evidence on appeal where appropriate, and the submissions of other pleadings to the BIA. Depending on the time frame, a motion to reopen in lieu of an appeal may be called for.
Be aware that many times, especially in non-detained cases, the appeals before the BIA take many months. We have seen cases which have taken longer than that. Be aware also that your attorney can check the status of your case after the appellate brief has been filed. If the government has filed a responsive brief, in appropriate cases, there is the option to request permission from the BIA to file a reply brief.
Finally, be sure you do not delay in making decisions concerning your potential appeal. Be sure that you do not waive any issues before appeal. Be sure that you or your attorney preserves the right to appeal at the conclusion of proceedings. Seek competent counsel especially to determine the next steps in the event your appeal is denied. In certain cases, you may be able to pursue a further appeal to the appropriate circuit court of appeals or afterwards even the U.S. Supreme Court.
The Modi Law Firm, PLLC represents clients in all types of immigration cases in Texas. Contact the attorneys to learn how they can help with your situation.