You are in deportation proceedings and attend an individual or merits hearing at Immigration Court. The Immigration Judge (IJ) gives a decision. No matter whether it is good news or bad news, you want to know: Is my case over? Is this decision the final decision?
The short answer: Yes and no. This article will explore how the IJ provides a decision, your role in pursuing an appeal or follow-up to the IJ’s decision, and when it is too late for further action seeking to change the decision.
(For more on the different stages and types of hearings in Immigration Court see Nolo’s articles on "Immigration Court Procedures.")
Whether you attend or not, the Immigration Judge can still decide the case. (For more on an Immigration Judge’s order if you miss your court date see, “I Was Ordered Removed in Absentia! What Can I Do?”.
After the completion of an individual or “merits” hearing (where the IJ focuses on only your case and listens to the evidence), the IJ will give a decision about the case. This may not happen on the first day of the individual hearing if more than one day is needed to complete all your testimony, witness presentations, and so on.
The IJ has a choice of either issuing the formal decision orally (spoken out loud in court) or in writing. If the Immigration Judge says the decision out loud in court, then a summary of this decision will be sent to you.
However, some applicants complain that they never receive this written summary. Make sure you have provided your latest address to the immigration court (EOIR) in writing; otherwise, you will not receive a copy of the written or summarized decision. (See 8 C.F.R. § 1003.37.)
A written copy of the decision will be especially important to have if you decide to appeal your case or make a motion regarding the decision (appeals and motions are discussed below).
For more information on this stage of the process, see Nolo’s article, “Judge’s Decision in Immigration Court: How Long It Will Take to Get.”
Here’s where you have a role to play: An IJ’s decision is considered final if one of two things happens:
(See 8 C.F.R. § 1003.39.)
An appeal is a request sent to a higher court (a court with more authority) asking it to review a lower court’s decision. You most likely would need to make your appeal from an Immigration Judge’s decision to the Board of Immigration Appeals (B.I.A.). The B.I.A.’s main job is to review decisions of immigration judges.
If the immigration judge says the opinion out loud in court, then the judge will likely follow up by asking something like, “Do you waive appeal?”, “Do you accept this decision as final?”, or some variation of one of these questions.
Accepting the immigration judge’s decision as final will have the same outcome as waiving appeal.
Know that you do not have to decide at that moment or that day whether you want to appeal. If you think you may want another court to review the decision later, you should tell the judge that you “reserve appeal.” If you reserve your appeal, then that means that you can file your appeal later (but not later than the 30 day time limit discussed below).
If you receive the immigration judge’s decision by mail, you have 30 days from the date of the decision to appeal the decision. If you leave the U.S. after the immigration judge issues the decision and before you file an appeal, then your departure from the U.S. will be considered a waiver of your appeal.
There may be a situation in which you might want to waive appeal or decide not to file an appeal even though the IJ’s decision did not go your way. For example, an appeal will cost additional money in legal fees and so forth, and you could decide that the cost just isn’t worth it. You might also decide that you simply want to return to your native country.
Also, if you are in detention, deciding to appeal your case would keep you detained, so you may decide to waive appeal simply to get out of detention (but you will have an order of deportation against you, too, so will need to leave the U.S. soon).
Another reason might be that you are no longer be eligible for the relief you were requesting (perhaps because you are no longer married to a qualifying relative). Further, there may be clear court authority against an appeal (attorney advice is essential here).
Discuss the appeal option with your attorney before the final day of your court hearing and do not make the decision of whether to waive your appeal lightly. If you say that you do not wish to appeal to the B.I.A. at the end of the proceeding, then you cannot change your mind and do so later. (See 8 C.F.R. § 1003.3(a)(1) and Matter of Shih, 20 I&N Dec. 697 (B.I.A. 1993).)
If you decide to appeal, then you (or your attorney) will have 30 days from the immigration judge’s decision in which to file with the B.I.A. (See 8 C.F.R. § 1003.38.) The notice is on a form called “Notice of Appeal from a Decision of an Immigration Judge, Form EOIR-26.”
Be sure to keep in close touch with your attorney in order to help make sure the deadline is met. If the 30 days go by with no appeal, the IJ’s decision becomes final, and your case will be transferred to the appropriate authorities to arrange your deportation.
If, after an Immigration Judge has given a decision on your case, new facts or evidence arise that the IJ did not consider or think about when deciding your case, you would want to file what’s called a “motion to reopen.” That’s just what it sounds like – you are asking the IJ to reopen the file and undo the earlier decision.
Or, if you believe the IJ made a mistake in the ruling, or a change in the law would make a difference to the decision, you would file what’s known as a “motion to reconsider.” This motion similarly asks the IJ to think over the decision once again, and hopefully issue a different one.
Again, there are very strict rules when filing either of these motions so it is very important to follow the Immigration Court Practice Manual. Once your appeal has been filed with the B.I.A., the immigration judge no longer has control over the case, and cannot hear any such motions.
More information can be found in Nolo’s articles on "Immigration Court Procedures."
The IJ’s decision will be final and your case will basically be considered over if you choose to not make an appeal to the B.I.A. or make a motion to reopen or reconsider to the Immigration Judge. A chance still exists, however, that you are still eligible for a waiver or other form of relief even if your case seems to be over, depending on the facts of your case.
If you have already accidentally waived appeal or did not understand what the IJ meant when he or she said “final decision” after your case was over, and you did not have an attorney with you at your hearing, then you should consult an attorney to consider your option to make a motion to reopen with the immigration judge.