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 could mean more proceedings are yet to come.

By , J.D.

At the end of a removal (deportation) hearing in the Immigration Court (also called the Executive Office for Immigration Review or EOIR), you might 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. For example, if you were granted U.S. lawful permanent residence, it doesn't mean you will be issued a green card just yet. In fact, if the opposing attorney, who represented the U.S. Department of Homeland Security (DHS) reserves appeal, it could mean more court proceedings are yet to come before your status is safe.

What Are the Chances the DHS Attorney Will Actually File 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.)—or at least to think about it.

But the appeal might not happen after all. The DHS attorney could 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 eventually drop the matter (or not).

That means you will have to wait a bit to find out whether the judge's decision is truly 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 United States report different practices by DHS attorneys after the IJ grants a case. At some immigration courts, an DHS attorney who reserves an appeal almost always follows through with filing it. In others, the attorneys routinely reserve appeal then don't necessarily follow through. What the DHS attorney decides also depends greatly, of course, on the law and facts concerning your case.

What's 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 in immigration court, 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 (which you'll want to double check, as described next).

Following Up After 30-Day Appeal Period

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

You would be wise to contact the DHS attorney's office directly to ask whether the government filed a B.I.A. appeal. 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.

Getting Legal Help

Even if you haven't done so before, now might be a good time to consult with an experienced immigration attorney.

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