Top Federal Litigation Attorneys Handling Immigration Cases in Las Vegas, Reno, Los Angeles and Throughout The United States
Under certain circumstances, decisions made by immigration authorities can be challenged in federal district and appellate courts. Because federal courts are considered courts of “limited jurisdiction,” the range of issues they can decide are generally very narrow and limited. When a party challenges an immigration decision in federal court, the burden of proof is on the party filing the challenge. In most cases, a federal court will only reverse an administrative decision when it is found to be arbitrary, capricious or not otherwise in accordance with the law.
The three most common types of federal court litigation involve (1) appeals from a denial of a petition for an alien relative, (2) appeals from decisions of the Administrative Appeals Office (“AAO”) and (3) appeals from decisions of the Board of Immigration Appeals (“BIA”). Each is discussed below.
Appeal From Denial Of I-130 Petition
A United States citizen may file a Form I-130 with immigration authorities to sponsor a close family member such as a parent, an unmarried child under the age of 21 or a lawful spouse. The vast majority of I-130 denials involve spousal cases. In the majority of cases, the immigration authorities will deny I-130 petitions filed for a spouse if there is not enough evidence establishing a “bona fide marriage” or a determination is made that the marriage was a fraud whose sole purpose was to elude immigration laws.
If you find yourself having had an I-130 denied, you have two options. The first is to refile the petition putting forward additional evidence such as lease, mortgage, birth certificates and joint financial records intended to demonstrate the bona fides of the marriage. The second option may be to appeal to the BIA by filing a Form I-290B. However, if the BIA renders an unfavorable decision, a citizen spouse may appeal that denial in a federal district court in the jurisdiction where the petitioner lives.
An appeal from an adverse decision made by a United States Citizenship and Immigration Service (“USCIS”) Field Office must be filed within 30 days from the date of the decision. If USCIS determines that the appeal is not likely to overcome the grounds for denial, the agency will prepare a “Record of Proceedings” or “ROP.”
Essentially this is an administrative record of the appeal and the supporting documents filed by the petitioner. The agency Field Office will then send the ROP to the agency’s Office of Chief Counsel for review and potential reconsideration.
If the Office of Chief Counsel determines the decision was appropriate in the first instance, it will prepare arguments on behalf of the government for presentation to the BIA. Following that, the ROP is sent to the BIA for adjudication. The BIA will in turn issue a decision usually within 6 months. If the BIA’s decision is adverse to the petitioner, it can be appealed to a federal district court for further review.
Appeal Of Decisions Of The AAO
The AAO hears cases involving employment based immigrant petitions and non-immigrant worker petitions, denial of re-entry permit applications or revocations of approvals of immigrant visa petitions as well as some citizenship matters.
Certain immigration statutes allow a party to challenge an AAO decision directly in federal court. The difference between the AAO and the BIA is that decisions appealed from the USCIS go to the AAO while decisions made by an immigration judge go to the BIA.
Appeal Of Decision Of The BIA
The BIA reviews decisions of immigration judges and has appellate jurisdiction over family-based immigrant petitions, removal orders, applications for relief from removal, motions to reopen and requests for reconsideration of decisions previously rendered.
The BIA has the power to affirm, reverse or remand decisions made by an immigration judge. BIA decisions, however, constitute final administrative action in cases and can only be appealed to federal district or appellate courts.
Appealing A Denial Of A Citizenship Application
If an application for citizenship is denied by USCIS, the applicant can request a hearing before another immigration officer by filing a request for an administrative review within 30 days of the date the applicant is notified that citizenship application is denied. The applicant must file Form N-336 entitled “Request for a Hearing On A Decision in Naturalization Proceedings” with the local USCIS office.
If the citizenship application is again denied by USCIS after the applicant has filed a Form N-336, then that decision can be appealed directly to a federal district court. A federal judge will conduct a de novo review, meaning the judge will not rely upon any reasons provided by USCIS but instead will make his or her own findings.
Navigating the immigration system can be intimidating. The alphabet soup of agencies and forms can overwhelm even the most intelligent person. If you’ve received a negative decision from USCIS regarding an immigration application filed upon behalf of a spouse or other immediate relative, you need to explore your federal court options.
With top lawyers serving clients in Las Vegas, Reno, Los Angeles or anywhere else in the United States, The Federal Defenders, By Paul Padda Law is one phone call away.
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