Assisting Employers and Immigrants Appeal USCIS’s & Immigration Courts’ Decisions

Administrative Appeal Office (AAO) – Appealing USCIS’ Decisions

Law Offices of Steven Tuan Pham, P.C.  - Houston Immigration & BIA Appeal Lawyers

Some application denial decisions from the Department of Homeland Security (DHS) is appealable by the Associate Commissioner for Examinations of the Administrative Appeal Office. These include, but are not exclusive to naturalization applications, adjustment of status applications from Indochinese applicants, revocation of previously approved applications, denial of inadmissibility applications based on previous criminal convictions 212(h) & (i), petitions for temporary workers and fiancé visas, application for advance parole by refugees, special immigrant petitions for juveniles, adjustment of status applications based on a good faith marriage (but not other family-based, I-130 petitions), and I-140 petitions.

Applicants and Petitioners have 30 days after the date of receipt of the Service's decision to file a notice of appeal. In counting the dates, to ensure timely appeal, the Houston Immigration Appeal Attorneys at Veritas legal group usually count 30 days from the date of the written decision, plus three days for mail-box rule if the decision was mailed. In cases in which applicants did not receive the denial decision or notice of the right to appeal from USCIS within the 30 days period, the Federal District Court may reinstate the 30 days period for the appeal.

Because there is only a small window to appeal the application, it is essential our Houston USCIS Appeal Lawyers have as much time as possible to prepare the brief, organize exhibit and supplements that would be necessary to file with the notice of appeal. Each application and the decision is unique; and thus, our Houston Immigration Attorneys must carefully consider each issue and perform necessary research to overcome the Service's decision. Outside the 30 days appeal period, the Petitioner must file an application to reopen or a motion to reconsider. 8 C.F.R. Section 103.3(a)(2)-(3). If the motion to reconsider or a motion to reopen met all requirements under these sections 103.3(a)(2)-(3), the motion must be treated as an appeal. Further, the decision made on the motion is appealable if the original decision was appealable. For Motion to Reopen and Reconsider for Immigration Court’s decisions, please see below.

The AAO appeal must be filed in the District office in which the decision was made. The adjudicating officer, who previously denied the original application, will have the opportunity to review and to reconsider same. If the adjudicating officer does not agree on the merit of the appeal, only then would the officer transfer the appeal to the AAO. It is important that any evidence that support the original application and/or repute the officer's original denial made part of the appeal brief. Meritorious evidence would allow the adjudicating officer reconsider the application; and if such appeal is approved by the district office, the officer would send an approval notice to Petitioner. Please contact the Houston Immigration Appeal Attorneys and the U.S. AAO Appeal Lawyers at the Law Offices of Steven Tuan Pham. for further assistance on your administrative appeal.

Board of Immigration Appeals (BIA) - Appealling Immigration Courts' Decisions

The Board of Immigration Appeals (BIA) is the appellate division of the Executive Office of Immigration Review (EOIR). The BIA has jurisdiction over the decisions of the regional Immigration Courts and to review its own decisions under Motion to Reopen and Motion to Reconsider. The appeal notice must be timely filed with the Board of Immigration Appeals, within 30 days from the date of the Immigration Court’s decision. After the notice of appeal have been filed, along other forms necessary forms, the BIA would issue a date by which the Appeal Brief is due, as well as a due date for the government’s Response to the Appeal Brief. Your Houston BIA Appeal Attorney may wish to supplement the appeal upon receiving and carefully reviewing ICE’s Attorneys’ Response. It is essential that your Houston Immigration Denial Appeal Lawyers address all issues that the government’s attorney raised and rebuttle all such arguments with law and fact.

Although most decisions by the immigration courts are appealable to the BIA, there are very few basis to appeal the court’s decisions, including:

  • The Immigration Judge’s erroneous application of law;

  • The Immigration Court misapplication of facts; and/or

  • The Immigration Judge’s abused his or her discretion.

Erroneous application of law (misapplication) refers to how the court interpret immigration and nationality law, including the Immigration & Nationality Act, The Illegal Immigrants Reform and Immigrant Responsibility Act (IIRIRA), the Patriot Act, The LIFE Act, Federal Regulations, just to name a few. Further, the court may erroneously applying precedent case law, or failed to apply controlling case law that were decided by the BIA, U.S. Federal Court of Appeals, and/or the U.S. Supreme Court. In arguing that the court misapplied certain law, irrespective of its source, the Appellant (you) need to take into considerations that every case is unique and no two cases are exactly alike. As such, your Houston BIA Appeal Attorneys and your Dallas Texas Immigration Court Appeal Lawyers must be prepared to overcome ICE’s attorneys’ objections, including siting case law that holds the opposite view (opposition opinion), and differentiate your application from such cases. Failing to prepare and anticipate the government attorneys’ objection could be detrimental to your appeal.

Misapplication of facts refers to how the court failed to consider certain evidence in which your Houston Immigration Defense Counsel seeks to introduce as evidence supporting your case. In addition, it could also means that the immigration court misapplying your case with facts of another case where there are distinctive differences and does not support the court’s decision. Again, as stated above, your Houston Removal Defense Attorneys must anticipate case law that support ICE’s government attorneys. Failing to bring these objections or case law could have adverse affect and may also hinder the ability of the Houston Immigration Appeal Attorney to successfully appealing your case with the BIA or with the AAO.

An abuse of discretion may occur when the judge deny certain applications, such as waiver, when the Respondent (person that is under removal proceeding) meets all the qualifications. It could also be an abuse of the court’s power to rule over procedural matters in the court room. One of such abuse may be an abuse of discretion by denying the Deportation and Removal Defense Attorney’s Motion for Continuance, while waiting for an I-130 Petition to be Approved, based on a good faith marriage to a U.S. citizen, and all requirements have been met. Various Federal Courts have consistently ruled that the procedural guideline in which the Immigration Judge should adjudicate the removal proceeding with 18 months is a guideline, and not law; and thus, individual merits should be considered first and foremost. Courts may also abuse discretion in certain waiver applications when and if the individual have shown that all requirements and qualifications are met, such as overwhelming evidence supporting the finding of fact. This type of abuse may also related to the court’s misapplication of facts and may also be used interchangeably, or both. Please contact the Houston Immigration Deportation Lawyers at the Law Offices of Steven Tuan Pham. to review your qualifications for a meritorious appeal.

Petition For Review With The U.S. Federal Court of Appeals

Certain denials from the BIA are reviewable by the U.S. Court of Appeals. The appeal is a “Petition for Review” of the BIA’s decision. Previously, Petitioners (Aliens Being Removed) can file a Habeas Corpus with the Court in cases where removal is imminent, such as ICE has detained the person after the BIA denial. Since 2005, new federal regulations prohibit Habeas reviews for immigration matter. As such, only appeals that are timely filed with the U.S. Court of Appeals are accepted. That is, the Petition must be filed within 30 days from the date in which the BIA denied the appeal and affirmed the Immigration Court’s decision. The notice of appeal. along with other required documents, must be filed with the court within the 30 days period. Often, the 3-days mailbox rule do apply if the BIA’s decision was mailed to Petitioner. Outside of this 30 days period, the Petitioner can only file a Motion to Reopen or a Motion to Reconsider with the BIA, and the U.S. Federal Court of Appeals would have no jurisdiction to review.

As with appeals to the BIA, the Houston Federal Court of Appeals Attorneys and the U.S. Removal and Deportation Defense Lawyer may argue that:

  • The Immigration Judge and the BIA misapplied the law;

  • The Immigration Court and the BIA erroneously applying fact; and/or

  • The Immigration Court and the BIA abused its discretion.


Immigration Appeal is often extremely difficult and the rate of success is stacked against the appealing immigrant. Please contact the Houston BIA Appeal Attorneys and the Houston AAO Appeal Lawyers for assistance. The Houston Texas Immigration Appeals Attorneys and the U.S. Immigration Appeal Lawyers at Veritas have assisted a number of clients in successfully appealing the decision of USCIS and the BIA. Not every case is the same and required information specifically applicable to your application and appeal. Please contact one of our Houston Motion to Reopen and Motion to Reconsider Attorneys and Dallas Texas Immigration Appeal Lawyers at the Law Offices of Steven Tuan Pham. at 713-517-6645 or complete our Contact Form.

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