Appeal of a Removal Order

An order of removal issued by an immigration judge or DHS officer may be challenged by appealing the decision to a higher court. The next higher court, if an immigration judge issued the order of removal, is the Board of Immigration Appeals (BIA). The BIA is a division of the U.S. Department of Justice. It is located in Falls Church, Virginia.

If the BIA upholds the removal order, then judicial review often is available from the United States Court of Appeals. Unlike the BIA, the Court of Appeals consists of independent judges appointed for life terms. Also unlike the BIA, the Court of Appeals has the authority to decide that a law passed by Congress violates the Constitution.

How long does it take to decide an appeal?
There is no time limit, and it regularly takes anywhere from six to thirty-six months depending on the court and the type of case. Cases where the noncitizen is in immigration detention receive the highest priority.

Can I remain in the United States while waiting for a decision on my appeal of an order of removal?
You have the right to remain in the U.S. during your appeal to the BIA. In fact, the BIA will dismiss your appeal if you depart the U.S. To remain in the U.S. during a petition for review to the U.S. Court of Appeals, you may request a "stay of removal." You should do this immediately if you are in immigration detention. You may also wish to request a stay even if you are not in detention. Additionally, you may wish to request a "stay of voluntary departure" if you received voluntary departure from the BIA, since this will avoid severe negative consequences for failure to voluntarily depart within the allotted time.

Besides appeals, what other options are there for challenging a decision by the immigration authorities?
Two other primary ways of challenging immigration decisions exist: motions to reopen and motions to reconsider. Unlike appeals, these requests are directed to the immigration authority that made the decision in your case (not to a higher authority). A motion to reopen presents new facts that were not available previously. Typical motions to reopen assert: new eligibility for an immigration benefit, changed conditions, or errors in the original proceedings due to ineffective assistance of counsel. A motion to reconsider argues that the immigration officer or judge overlooked a key fact or made a significant error of law. A motion to reconsider may also argue a significant change in the law.