Review by the Board of Immigration Appeals (“BIA”)
The Board of Immigration Appeals (BIA) is the appellate body designated to review decisions from the immigration court and, in some instances, from the Department of Homeland Security. The BIA is part of the Executive Office for Immigration Review (EOIR), and the EOIR is within the U.S. Department of Justice.
- Jurisdiction of the BIA
- Court Review of BIA or Immigration Judge Decision
- Review by the Attorney General (AG)
- Review by the AAO/Regional Commissioner
- Review by OCAHO
- Review by BALCA
The BIA has appellate jurisdiction under 8 CFR Section 1003.1(b) to hear the following matters:
- Final decisions of Immigration Judges in exclusion and deportation cases, except length of time of Voluntary Departure.
- Final decisions of Immigration Judges in removal cases, except: (a) where the sole ground is the length of time of voluntary departure; (b) when there is an in absentia order in deportation or exclusion; (c) when there is an in absentia order in removal proceedings.
- Decisions on cancellation of removal applications in removal proceedings, adjustment of status and decisions on former INA Section 212(c) applications raised in deportation and exclusion proceedings, but not decisions before the District Director.
- Decisions involving fines, penalties, and mitigation of them.
- Decisions for all preference petitions (except employment based and orphan petitions) and revalidation and revocation of those petitions. However, jurisdiction extends only to discretionary revocation and the BIA has no authority to review automatic revocation. The BIA has no authority to hear appeals of a beneficiary. It can only hear appeals of the petitioners. However, some courts have held that the beneficiary has standing to sue.
- Decisions on waivers of inadmissibility for nonimmigrants under INA section 212(d)(3).
- Determinations relating to bond and detention in removal, except for persons deemed inadmissible or subject to mandatory detention (unless application of mandatory detention is challenged) and determination relating to bond and detention in deportation but not exclusion cases.
- Determination to continue detention beyond removal period made by an immigration judge.
- Decisions relating to asylum, withholding of removal, CAT claims or Immigration Judge’s decision of Temporary Protected Status.
- Decisions by Immigration Judge relating to the LIFE Act.
- The BIA will entertain an interlocutory appeal where a significant issue is raised that affects the administration of the immigration laws.
Court Review, of BIA or IJ Decision
If the Board of Immigration Appeals (BIA) writes a reasoned decision, the Court’s review is of the BIA’s decision, not the decision of the Immigration Judge. But when the BIA summarily adopts an Immigration Judge’s decision, the Courts will review the Immigration Judge’s decision as if it were the Board’s decision.
Review is sought in the Circuit Court of Appeals having jurisdiction over the location of the Immigration Judge’s decision.
Review by the Attorney General (AG)
The AG may review a BIA decision upon request from either the BIA, the Director of Homeland Security, or the AG himself. The AG, unlike the Board, engages in de novo review on all aspects of the case.
The BIA’s decision remains binding on the DHS and IJs while certification is pending before the AG.
Review by the AAO/Regional Commissioner
The Associate Commissioner for Examinations, through the Administrative Appeals Office (AAO), has jurisdiction concerning decisions on:
- Bond breaches.
- I-140 preference petitions, except when the denial of the petition is based upon the lack of a labor certification or perm.
- Indochinese applications for adjustment of status.
- Revoking approved petitions.
- Applications for permission to reapply for admission into the US after deportation or removal.
- Applications for waiver of certain grounds of excludability INA Sections 212(h) and (i).
- E waivers.
- Petitions for temporary workers or trainee (H and L visa) and Fiances.
- Petitions for approval of schools or the decision of the IJ to withdraw the approval of schools.
- Applications for re-entry permits.
- Applications for refugee travel documents.
- Application of adjustment of status of certain diplomats.
- Application of certain LPR to non-immigrant status.
- Applications related to naturalization.
- Applications by organizations to be listed for free service.
- Amerasian petitions.
- Revocation of non-immigrant petitions.
- Orphan petitions.
- Invalidation of temporary labor certifications from Guam.
- Applications concerning temporary or permanent residence under IRCA.
- Petitions for special immigrant juveniles.
- Applications for adjustment based upon the bona fide marriage exception in INA section 245(e) concerning 2 year foreign residency. Legalization Appeals Unit (LAU) reviews legalization appeals.
Review by OCAHO
The Office of Chief Administrative Hearing Officer (OCAHO) oversees the administrative law judge (ALJ) proceedings in unfair immigration related employment practices: employer sanctions cases, and now fine proceedings.
There are no administrative appeals over unfair immigration related employment practice cases and no appeal of right over employer sanctions cases. In employer sanctions cases, the Chief Administrative Hearing Officer may conduct a review if he/she deems it appropriate even if a party has not made a request for review. Also, any party may file a request for review within 10 days of the ALJ’s decision requesting a review of legal issues.
Review by BALCA
The Board of Alien Labor Certification Appeals (BALCA) was established to review labor certification denials. It is also authorized to hear appeals of denials (to healthcare facilities) or appeals of approvals (by interested third parties) of attestations of healthcare facilities in regard to H-1A nurses.
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