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​Immigration Court Appeals: What They Are and How They Work

by Josh Effron, Esq.


Almost every area of law in the U.S. has a system set up for appealing a court's decision if one party disagrees with it.

Usually, a case starts out in a trial court or some "lower court." Here, the judge (and maybe a jury) hears arguments from both sides, looks at the evidence presented, hears witnesses (if any), and ultimately hands down a decision. If both sides accept the decision, it becomes final, and the case is over.

If, however, one party does not accept the decision, that party may appeal it to the next highest court. Appeals are generally done in writing. The court of appeals has the power to review some aspects of the original decision, but it cannot re-hear the entire case from scratch.

If the court of appeals is convinced that there was some problem with the original decision, it can either remand the case back to the lower court (with instructions that the lower court fix the problem and then render a new decision in light of that correction) or reverse the lower court's decision, in which case the decision of the court of appeals becomes the decision that counts.

If the option is available, the case may then be appealed to a second court of appeals. (This option is only available if the second court of appeals is "above" the first court of appeals. See below for more information about the meaning of "above.") If a party still doesn't like the decision it has gotten, the party may appeal the case to yet a third court of appeals. (Again, the third court of appeals has to be "above" the second court.) This can go on until there are no more courts of appeals available to hear the appeal.




In the United States, you can't find out the law by simply reading the text of a statute (a law); you have to look a bit further. Statutes are interpreted by regulations. The statute (the law) and its accompanying regulations are then interpreted by courts. When someone appeals from a lower court to a higher court, a new precedent may be set. From then on, lower courts are bound by the higher court's interpretation of that particular law (and/or its accompanying regulations), even if the lower courts happen to disagree with the higher court.

Remember, however, that higher court decisions only interpret some of any given law; decisions rarely interpret everything about a particular law. Thus, if you're in a lower court and you don't like a higher court's interpretation of the law, you can distinguish your case from the case that was before the higher court. By doing this, you can show the lower court that the higher court's decision does not apply to your particular situation. If you can successfully distinguish your case, the lower court will be free to render its own decision (although the higher court may still reverse it on appeal).


The courts are not technically bound by their own prior decisions, however. As a result, if they change their mind about a particular issue, they are free to overrule their prior decisions. Nevertheless, this happens rather infrequently. Otherwise, there would be no consistency from case to case, and no one would be sure what the law is.

To complicate matters further, not all decisions are binding on lower courts. Only decisions that are "published" in the official reports are binding. (Official reports are available in many public libraries and in most law schools' law libraries, as well as on the web.) In general, a person is not allowed to cite an "unpublished" decision when making arguments in court or on appeal.* Decisions that are "unpublished" are, however, good to look at because they may give you a general idea of how the higher courts view a particular issue. This way, if you're appealing to a higher court and this same issue comes up again, you can be fairly certain about how the higher court will rule. A good lawyer can readily locate both published and unpublished decisions.




Immigration law is exclusively federal. This means that state judges play absolutely no role in immigration law. (You may want to keep this in mind the next time you read in the newspaper that a criminal court not only sent someone to prison but also ordered the person deported. If you happen to see an article saying this, write to the paper and tell the editors that criminal court judges are usually state judges, and state judges can't order a person deported!)


Immigration cases generally start off with an immigration judge (commonly called an "IJ"). Decisions from an IJ can generally be appealed to the Board of Immigration Appeals (the "BIA"). Decisions from the BIA can usually be appealed to a federal court of appeals. The federal courts of appeals are divided into circuits, and the location of the original case determines which circuit is used. For example, cases originating in the western United States - including Alaska, Guam, and Hawaii - go to the Ninth Circuit Court of Appeals. Decisions from the court of appeals can then be appealed to the United States Supreme Court.


The U.S. Supreme Court, is, of course, above all other courts in the United States. Below the Supreme Court is the court of appeals, which is bound by all Supreme Court decisions. Below the court of appeals is the BIA, which is bound by both the Supreme Court and the court of appeals. (However, the BIA will only be bound by court of appeals decisions from your circuit. Thus, if you're in the Eighth Circuit, the BIA will not be bound by decisions of the Third Circuit.) Finally, below the BIA is the IJ, who is bound by the U.S. Supreme Court, the court of appeals for that circuit, and the BIA.

Your immigration case starts out before the IJ, who eventually renders a decision. If the decision goes against you, you are given the option to either accept the decision or appeal it to the BIA. But if the decision is in your favor, the U.S. government (which is generally trying to remove you from the United States) may choose to appeal it to the BIA.

When the IJ has handed down a decision, the judge asks both sides if they're satisfied with the decision. If one side (either you or the government) doesn't like the IJ's decision, that side may (but certainly doesn't have to) "reserve appeal." If you (or the government) choose to appeal, you'll be given thirty days to send a Form EOIR-26 ("Notice of Appeal from a Decision of an Immigration Judge") to the BIA. If the Form EOIR-26 arrives at the BIA late, you will have lost your right to appeal, and the IJ's decision will become final.

On the Form EOIR-26, you'll be asked if you want to file a written argument as part of your appeal. It is advisable to choose this option, because if you don't file any written arguments, the BIA won't really understand why you disagree with the IJ, and you'll be more likely to lose your appeal. The written argument is called a "brief" (which is often anything but brief!). Both sides (you and the government) file a brief; one side's brief shows why the IJ was right, while the other side's brief shows why the IJ was wrong. The briefs are not sent along with the Form EOIR-26. Instead, once the BIA receives the Form EOIR-26, it will send a "Briefing Schedule," which will set forth when your brief is due and when the government's brief is due.

The filing fee for an appeal is currently $110.00. This amount is paid by submitting a check or money order for exactly $110, made out to "United States Department of Justice," along with the Form EOIR-26. However, if you feel that you can't afford the $110, you can fill out and submit a Form EOIR-26A ("Fee Waiver Request") instead of a check or money order.



While it is true that the U.S. Supreme Court can hear immigration appeals coming from the federal courts of appeals, it doesn't have to hear most appeals. As with virtually every other type of case that comes to the U.S. Supreme Court on appeal, the Court has discretion to grant or deny "certiorari" when an immigration appeal comes before it. When certiorari is denied, the case goes no further, and the lower court of appeals has the final word in that case. The Supreme Court is not required to give its reasons for granting or denying certiorari. (That's the power that comes with being the Supreme Court!) Of course, when certiorari is granted, the Supreme Court will hear the case, and its decision will become the one that counts.

Every year, the Supreme Court is asked to consider thousands upon thousands of possible appeals. It grants certiorari to only a small percentage of these cases, and relatively few of the cases that the Supreme Court ends up hearing are immigration appeals. As a result, relatively few immigration appeals ever make it all the way to the U.S. Supreme Court. If, however, your case does make it there, the resulting decision may become national precedent, and courts throughout the United States may be citing your case for years to come.

* The rule that unpublished decisions aren't binding and can't be cited might be changing. In Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), the Eighth Circuit Court of Appeals held that it would follow a prior decision it had handed down, even though the prior decision was unpublished. The prior decision dealt with precisely the same issue that Anastasoff was bringing before the court. As a result, the court indicated that not following its prior (though unpublished) decision could be unconstitutional. The Anastasoff decision has caused courts throughout the country to begin questioning whether there should even be unpublished decisions.





Updated September 26, 2012

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