If an alien loses his/her case before the immigration judge, he/she has the right to appeal to the Board of Immigration Appeals (BIA). When a person appeals a decision of the immigration judge to the BIA, the goal is to convince the BIA that the immigration judge’s decision was wrong. Virtually all of the work in this kind of appeal is written.
That is why an alien who appeals to the BIA needs an attorney who is capable of finding errors, evidence that previously existed but has not been fully explored, or cases that can help the appeal, and capable of effectively delivering a winning argument. A victory at the BIA, with a few exceptions, means the alien has won his/her case. Only in rare instances can ICE appeal a decision of the BIA.
But what if an alien loses his/her appeal at the BIA?
One, if an alien loses his/her appeal before the BIA, he/she can file a motion to reconsider within 30 days of the Board’s decision. A motion to reconsider argues that there is an error of law in the Board’s decision. However, after a loss at the BIA, the better way to go is to file a motion to reopen, which must be filed within 90 days of the Board’s decision. A motion to reopen presents new evidence to the Board that was not previously available. In most cases, after one has lost at the BIA, one can take his/her case into federal court. For more information about that, see the Practice Area entitled Circuit Court Appeals (Petitions For Review).