I have written a lot about litigating BIA appeals, but what about when the appeal is over? Of course our hope is that the BIA granted the appeal.  But if the BIA dismissed the appeal, after the initial shock, there are serious, time-sensitive decisions that need to be made. In all cases, the facts of the particular case should decide the next move. But determining your next move is often tricky and may be influenced by how aggressively the government intends to pursue removal.

What Happens After an Appeal?

1. The Order of Removal Becomes Final

When the BIA dismisses an appeal of an Immigration Judge’s decision to order a person removed and to not grant any relief from removal, the BIA’s decision makes the removal order “administratively final.” 8 CFR 1241.1(a). This just means that the order of removal (or order of deportation or exclusion in older cases) is in effect and the government can legally deport the person based on the final order.

The statute actually calls this period the “removal period.” It says for the first 90 days after the order becomes final and/or the immigrant is taken into custody, the government is obligated to try to deport the immigrant (and can’t release them on a bond).  INA 241(a)(1)(A).

2. The Deadline for Appeals and Motions to Reopen or Reconsider Begins

Circuit Court Appeals

It doesn’t make sense in every case to appeal the BIA’s decision, but it must be seriously considered.  As soon as the BIA issues its decision, the immigrant has 30 days to “petition” a Circuit Court of Appeals to review the Board’s decision.  But keep in mind – during these 30 days the government can still deport you.  While it might seem that 30 days is a lot of days, Immigration is not always going to wait 30 days to arrest the immigrant based on the final order of removal and begin trying to deport them.

If an appeal is filed, the Circuit Court can issue a “stay of removal,” which would order ICE not to deport you, but the court isn’t required to. Even if the court issues a stay of removal, DHS will not always release the immigrant from detention while the appeal is pending.  Because of this, it is important to move quickly after receiving the BIA’s decision.

While most dismissed appeals can be taken to the Circuit Court, that doesn’t mean they all should, and you should consult with an attorney to discuss whether you have a good case to take up on appeal.  You wouldn’t want to file an appeal if the Board was right and you have no legitimate argument that the BIA’s decision was mistaken.  Also, if there is absolutely no chance of success before the court, you may be wasting your money and time.  On the other hand, there might be a good reason to take your case to the Circuit Court for review. An experienced appellate attorney should be able to tell you.

If you do not file a “petition for review” in the Circuit Court within 30 days, your right to an appeal will expire.

Motions to Reopen or Reconsider

Even if an appeal is filed, there might be a reason to ask the BIA to reconsider its decision or to reopen the case so more evidence can be submitted.  Motions to reconsider must be filed within 30 days and Motions to reopen must be filed within 90 days of the BIA’s decision. You might even be able to file a late motion to reopen if there are no other options, although that is never a good idea if you can avoid it.

While the motion is pending, the BIA can issue a stay of removal, but the procedure for filing a written motion and then requesting a stay from the BIA’s hotline is difficult to navigate (and essentially impossible without an attorney).  However, there can be serious consequences to filing motions to reopen and reconsider. You should get the advice of a trusted appellate attorney before doing this.

There are also very strict limits on the types of Motions to Reopen that can be filed, the kind of evidence that must be attached, and the time limit for filing them.

Neither a motion to reopen nor a motion to reconsider will stop your removal unless the BIA issues a stay of removal. Also, if you only file a motion to reopen or reconsider and don’t appeal the BIA’s original decision, you can lose the opportunity to appeal the BIA’s original decision.

3. “Unlawful Presence” May Begin

If a person was still in lawful status while their appeal was pending (for example, if they challenged an asylum denial), the BIA’s decision will trigger the beginning of what is called “unlawful presence.”

Section 212(a)(9)(B)(ii) of the INA says that “unlawful presence” can accrue during any period when a person is present without having been admitted or paroled, or after the expiration of the period of stay authorized by the DHS Secretary.  Sometimes, a pending application for a benefit in immigration court places the person in a “period of stay” so that they’re not accruing unlawful presence.  But when the BIA issues its decision denying an appeal, that “unlawful presence” typically begins.

This is important to know, because too much unlawful presence time might make you later inadmissible. It is important talk with an attorney about “unlawful presence” as part of your overall strategy on whether to file a circuit court appeal, leave the country, or pursue other options.

Need Help With Your Appeal?

Hopefully this information has been informative. If you need legal help with your immigration appeal, we’re happy to discuss it with you. We litigate appeals in Circuit Courts all over the country. I can’t guarantee we can take your case, but I’d be glad to talk with you about it. You can contact our office using this form to set up a time to talk:

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