Daniel M.Pell: Immigration & State and Federal Trial Practice.

Appeals and Stays of Removal While the Appeal is Pending

The BIA will consider the Appeal if the filing fees(currently $110.00) and a Notice of Appeal on the proper form are filed with the Clerk of the BIA within 30 days of the decision of the Judge. A direct appeal to the BIA following the negative decision of the Immigration Judge automatically stays the removal order until the BIA decides the person’s case. If the person wins the case, the Government can also appeal to the BIA, to appeal its loss. BIA Appeals are currently running an average of at least 6-8 months.

Bond Appeals

A person denied bond can appeal that decision to the BIA. There are no filing fees for a bond appeal, and those appeals are usually decided within two or three months. Unfortunately, sometimes the person’s case is decided before the Bond Appeal has been heard. As in the case of direct appeals(appeals that “directly”, that is, immediately follow the Immigration Judge’s decision on the merits of the person’s case), the government can also appeal, if they are dissatisfied with the amount of bond, or even that a bond was granted.

Appeals to the United States Court of Appeals

If a non-citizen has been ordered removed and deported from the United States by an Immigration Judge, and that person has appealed to the Board of Immigration Appeals, and their appeal has been denied by the BIA, then an appeal can be filed within 30 days of the BIA decision to the U.S. Court of Appeals, which sits over(presides over), has jurisdiction over where the Immigration case was decided. The Appeal must be filed within the 30 days, and is accomplished by a Petition For Review, and the proper filing fee which is currently $500.00. These Appeals require in most Circuit Courts, the separate filing of a stay of removal motion with the Court in which the person filing must prove that the person is likely to eventually win(prevail) in his/her case, and that there are no good reasons why the stay of removal should not be granted. Appeals of this nature, are complex, require legal assistance without a doubt, and are expensive in terms of legal fees. Attorney Daniel M. Pell, Esq., has undertaken many of these Court of Appeals Petitions for Review and Motions for Stay of Removal. These appeals are in almost every instance the final appeal, although technically, a person who has been ordered removed can request a final review of that order if the Supreme Court of the United States agrees to hear the case. In order to invoke the jurisdiction of the Supreme Court, a Petition for Certiorari must be filed with the Clerk of the Supreme Court, usually within 90 days of the Court of Appeals’ decision, with a separate application for stay of removal. Needless to say, such appeals are rare, and are rarely successful, but should be brought if important questions of Constitutional Law or Federal Law are involved.

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