What Does It Mean When the DHS Attorney Reserves Appeal After Removal Hearing?

If the opposing attorney in removal proceedings, who represented the U.S. Department of Homeland Security (DHS), reserves appeal, this may mean more proceedings are yet to come.

At the end of a removal (deportation) hearing in the Immigration Court (also called the Executive Office for Immigration Review or EOIR), you may be lucky enough to have the judge grant relief; perhaps protecting you from deportation with an approval for asylum, or cancellation of removal, or some other remedy.

That does not, unfortunately, mean that your case is definitely over. If the opposing attorney, who represented the U.S. Department of Homeland Security (DHS) reserves appeal, it may mean more proceedings are yet to come.

Reserving Appeal Is Not the Same as Actually Filing an Appeal

To reserve appeal basically means that the attorney wants the right to follow up within a certain time window, and file an appeal to the Board of Immigration Appeals (B.I.A.).

Sometimes, the DHS attorney will decide to end the matter there, and will not reserve appeal. Even reserving appeal doesn't always indicate a definite plan—the DHS attorney may consider the matter, talk to a supervisor, evaluate whether it's worth the effort of convincing the B.I.A. to overturn the judge’s grant, and and eventually drop the matter (or not).

That means you will have to wait to find out whether the judge's decision is final. The DHS attorney has 30 calendar days in which to file the appeal, which is done on Form EOIR-26, with a copy sent to you. “Calendar” days means exactly 30 days, counting weekends, not just business days.

Attorneys representing immigrants in different parts of the U.S. report different practices by DHS attorneys after the IJ grants a case. At some immigration courts, when the DHS attorney reserves an appeal, he or she almost always follows through with filing it. But it depends in large part, of course, on the law and facts concerning your case.

Your Immigration Status If the Case Goes to Appeal

If the DHS attorney does, indeed, file an actual appeal within the 30 days, then your grant of immigration status (such as asylum or cancellation of removal) will not be considered “final” and you will not be eligible for any of the benefits that come with that status.

It could be a long wait before the B.I.A. makes its decision (which is done based on the paper record; you will not be expected to attend any more hearings).

If you had an attorney representing you, you can ask the attorney, or attorneys at a local nonprofit (charitable) organization, what is “normal” in your area. But no matter what, you can’t be certain of whether the DHS attorney will appeal until you either receive a copy of that B.I.A. filing or at least 30 business days have gone by and you have received nothing.

Following Up as 30-Day Appeal Period Goes By

If 33 days (allowing for mailing time) have elapsed and you haven’t received a copy of a notice of appeal, chances are that the DHS attorney has not appealed the judge's decision and the order from the judge is now final.

You can contact the DHS attorney’s office directly to ask whether the government filed an appeal with the B.I.A.. You can also call the automated court case status hotline at 800-898-7180 to check whether an appeal has been filed. If so, the hotline will inform you that the Record of Proceedings was assembled and forwarded to the B.I.A.

If the required 30 days have gone by with no appeal, you can relax, and follow up on whatever benefits come with your newly granted or regained immigration status.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
FEATURED LISTINGS FROM NOLO
Swipe to view more
NEED IMMIGRATION HELP ?

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you