In examining the legal landscape of immigration law, one of the most often asked questions pertains to the American immigration law question, “When is an Immigration Judge’s decision considered final?” This article will explore various issues regarding the procedures that IJs use when presenting their decisions in deportation proceedings, your part in pursuing an appeal or a further resolution to the IJ’s order, and the most important issue: when is it too late to change the outcome of the deportation
The Immigration Court Hearing
You are a defendant or respondent in a deportation/removal case and prevail in an individual or merits hearing in Immigration Court. Finally, after the Immigration Judge has heard arguments from both sides, he or she announces a decision. That is why their hope or despair depends solely on this verdict: good or bad, you are left wondering, “Is my case over? Is this decision truly final?”
The straightforward short answer to this complex question is – yes and no. This article intends to provide the reader with more information on how the Immigration Judge comes to his/her decision, the possibilities to appeal or request the reconsideration of the case, and the stage when all actions are exhausted.
The Role of Attendance
Remarkably, the Immigration Judge can conclude your matter regardless of whether you showed up at the scheduled hearing session or not. There are situations when a person cannot attend the trial but fails to defend himself/herself; in such circumstances, a judge is likely to decide the case and it is usually disadvantageous to the defendant. For those wondering if any remedies remain after such a judgment, you can explore the topic further in our article titled “Ordered Removed in Absentia: These conflicting findings were an eye opener for me; I could not help but wonder, “What Can I Do?”
The Timing of the IJ’s Decision
This process follows the conclusion of an individual or “merits” hearing where the Immigration Judge focuses on your cases and assesses the said evidence; the judge will make a decision. This may not be an instantaneous choice, particularly if there’s a need to bring several days to address all the testimonies, witnesses, and every other hearing that may be needed. However, it is not uncommon for a hearing to end only to reconvene in the future on another date or even after several weeks or months.
When the decision finally comes, the Immigration Judge may then make the marking of the formal judgment verbally, speaking out in court, or written words. If the Judge makes the determination orally in the presence of all parties and concerned individuals, a brief of this ruling will be provided to you. That being said, some undocumented people placed in deportation proceedings suggested they never got this written summary. There is a need to ensure that one has filed a written update of your current address with the immigration court (EOIR) to avoid missing the written or summarised decision (8 C. F. R. § 1003. 37).
A written copy of the decision is necessary more so if you intend to _ or file a _ relating to the IJ’s decision. The following steps are explained below Steps.
The Appeal Process
At this point, you, the struggling party, stand at the center of resistance. An Immigration Judge’s decision is considered final if, following the hearing and decision, one of two scenarios unfolds:
- A non-citizen in proceedings and/or his/her attorney uses the phrase “waives an appeal” to mean that the decision he/she received will not be taken on appeal.
- The time in which an appeal needs to be made ends (This is provided for 8 C. F. R. § 1003. 39).
An appeal, on the other hand, is a formal request presented before a higher court to resolve the decision made in the lower court. Most of the time, the appeal would be made to the Board of Immigration Appeals (B. I. A.), which deals primarily with the decisions of immigration judges.
when delivered orally in court
Of the decision when delivered orally in court the Immigration Judge will ask whether you wish to waive the appeal or have the decision given as a final one. To fail the appeal is the same thing as yielding to accept the final decision. You do not have to decide whether to appeal during a hearing but it is important to know that one may not appeal and it be stopped immediately. However, if you think you may prefer another court to review the decision in the future, the Judge may note in terms that you are “reserving appeal” which means that you may appeal within the thirty days below.
If the IT’s decision was sent to you through mail then you have the right to appeal the decision within 30 days of the date of the decision. Leaving the country of the United States before getting the appeal of the Judge and then the evaluation done is equivalent to the abandonment of the appeal process, and thus the decision will be considered finalized.
There are several things that one ought to consider when it comes to appealing or not appealing a decision.
However, if new circumstances that may have been considered during the hearing of the appeal indicate that it may not be possible to win; it will not be worthwhile to continue with the appeals since they come with extra costs such as lawyer fees. Other self-interests that make one have a certain choice include the intention to return home due to other personal reasons. Furthermore, if you are detained, an appeal on your case might keep you detained longer compared to when you file the appeal. Sometimes it is okay not to appeal because you will be released, though this comes with a deportation order (8 C. F. R. § 1003. 3(a)(1) & Matter of Shih, 20 I&N Dec. 697 (B. I. A. 1993)).
If you decide to appeal, you (or your attorney) will have a deadline of 30 days counting from the date of the IJ’s decision to file with B. I. A. The notice for this appeal is done using the “Notice of Appeal from a Decision of an Immigration Judge,” Form EOIR-26.
To meet such a deadline, it is crucial to keep your attorney briefed on what is going on with the case. The failure to appeal within the 30 days effectively concludes the IJ’s decision as finality and your case is forwarded to the appropriate authorities depending on the deportation order.
Seeking Reconsideration
In case an Immigration Judge has decided on your case, if newer evidence or facts come up that the Judge did not consider in the initial judgment, one can file a “motion to reopen.” This motion is a request to the IJ to revisit your case, and potentially overturn the decision that was previously made.
However, if you think the IJ made the wrong ruling or for some reason change of law might affect the outcome, then you can file for the “motion to reconsider. ” This motion asks IJ to think it over and possibly come up with a new decision.
Both of these motions can be filed upon being bound by strict rules that are embedded in the Immigration Court Practice Manual. As said earlier, it is an imperative requirement that once the B. I. An appeal has been lodged, the IJ cannot and is not seized of entertaining such motions.
When Your Removal Case Concludes
Finally, the case rests in the hands of the Immigration Judge and is finalized; should you elect not to file an appeal to the B. I. A. or a motion to Reopen / Reconsider. Thus, in some cases, a creditor is capable of issuing a waiver or another type of legal remedy based on the specifics of your case.
If you discouraged your right to appeal or did not understand when exactly you should appeal which could be after a hearing and if you were unrepresented then seeking an attorney’s consultation is advisable. They can review your choices and help you consider filing a motion to reopen with the Immigration Judge to avail yourself of.
Every applicant seeking asylum or other relief in immigration court should understand that an Immigration Judge’s decision is the end of the road in most instances. This article has addressed the many circumstances under which the immigration judge renders an on-the-record decision, the various ways in which that decision may be appealed, and the situations in which the immigration judge might reopen or reconsider a case. Again, each case is different, and you should always seek legal advice before making decisions in immigration proceedings.
If you are facing a period of deportation proceedings or uncertainty regarding your immigration status, talk to an attorney who can help.
