By: Pia Dyquiangco, Esq.
The path to legalizing your immigration status in the United States can get complicated. There are some who find themselves in removal proceedings after being denied in their initial application to adjust their status. When this happens, you will have to appear in immigration court. You may represent yourself in these proceedings or you hire a competent immigration attorney to represent you in court. But what happens when you lose your case?
When you lose your case in immigration court, you have the option to appeal to the Board of Immigration Appeals or you have the option to accept the decision and depart the United States. You may request to take Voluntary Departure if that is an option made available to you by the immigration judge. You can take voluntary departure and still appeal your case. Lastly when you depart from the United States, you may reenter but you will have to submit a I-212 Waiver.
Voluntary Departure (VD)
The Immigration Judge may grant Voluntary Departure before the completion or at the conclusion of the removal proceedings. The length of time given in a voluntary departure situation depends on the following: Whether you have requested Voluntary Departure prior to or at your first initial hearing, whether you request for no other relief than VD; whether you concede that you are removable; whether you waive appeal; and when you have not been convicted of an aggravated felony. If VD is requested prior to completion of removal proceedings, then the IJ may grant up to 120 days, but should it be granted at the completion of the removal proceedings, the IJ may only grant no more than 60 days.
In order to get VD at the conclusion of your hearing, you must be physically present in the US for at least one year prior to the service of your Notice to Appear; must be a person of good moral character for 5 years; must not be deportable as a aggravated felon or terrorist; must establish ability to leave at own expense and the intent to do so; and must have the financial ability to post a $500.00 bond designated by the IJ. This bond is the amount necessary to ensure that you have the ability to depart. Remember that Voluntary Departure is Discretionary and you can receive civil penalties should you fail to depart in the time specified. Failing to depart may also cause you to be barred from applying for a number of immigration applications for 10 years.
Appealing your Case to the Board of Immigration Appeals (BIA)
You may appeal your case to the Board of Immigration Appeals. The Board of Immigration Appeals is the appellate body designed to review the decisions of the immigration court and the Department of Homeland Security.
The BIA may review final decisions made by immigration judges in removal cases except when the only sole issue is the length of time the IJ granted for Voluntary Departure and when an order in absentia is issued. When filing an appeal to the BIA it must be filed within 30 days of service of the Immigration Judge's decision. The 30 days begins immediately when the decision is issued. Remember to appeal your case in a timely manner or it may be dismissed for that reason.
Appeals to the BIA are based on legal arguments that may demonstrate why the immigration judge should have granted your case and except in rare cases, new evidence cannot be considered on appeal. If a denial is issued by the Immigration Judge there will be specific language stating how to appeal such decision to the BIA. Following such time frames and instructions are key to successfully filing your appeal.
Returning to the United States after Departure
In some instances, a person who is barred from admission may apply for readmission prior to the period of inadmissibility by submitting an I-212 Waiver. While you may apply for I-212 waiver during an adjustment proceeding or before an immigration judge, an Alien ordered removed or deported may have to apply for such a waiver at the consulate office of their home country. The reason for this is because an alien may not return to the United States after they have been ordered removed for a period of 10 years.
When in doubt hire a competent immigration attorney
Removal proceedings are complex and choosing which option to take when you lose your immigration court case may be even more difficult to handle on your own. Therefore, seek out a competent immigration attorney who may be able to assist in representing you and explain to you what options you have and the consequences that come along with choosing that option.
Wilner & O'Reilly has assisted many individuals through their removal proceedings. We have experienced lawyers that can help answer your questions. Should you find yourself in removal proceedings, call our office at 800-352-7034 or check out our website at www.wilneroreilly.com for more information. We are here to help.
Pia Marie Dyquiangco is an Associate Attorney in the Business and Transactional Division of Wilner & O'Reilly, APLC. Ms. Dyquiangco is admitted to practice in the State Bar of California and speaks tagalong and Ilocano fluently.
Contact information: 800-352-7034