Do You Have A Chance At Winning Your Case On Appeal?
16 November 2021Author: NYC Immigration lawyer Alena Shautsova
NYC Immigration lawyer Alena Shautsova helps clients to fight for their Immigration benefits in the United States.
If you are thinking about an appeal, it means you received a denial of your Immigration application or petition. First, you need to know that not every denial may be appealed: sometimes, you may appeal, sometimes you have to file a motion to reopen, sometimes you need to refile the entire case. Your options, if any, will depend on the type of Immigration benefit you were seeking, and which authority made a decision on your case. Also, you may choose one option over another depending on strategy you and your lawyer may have.
For example, if you receive a denial of your adjustment of status application with USCIS (form I-485), there is no opportunity to appeal it. However, you can file a motion to reopen or refile the case. A motion to reopen may be a good and only option if refiling of the case will make you inadmissible due to failure to maintain lawful non-immigrant status. Refiling of the case may be good if you need more time to prepare new filing than the time you have to file an appeal. All these and other issues must be taken into consideration when you make your decision regarding your next step.
Now we will discuss the most important factors you need to take into consideration when you are thinking about an appeal.
Time Restrictions
As a rule, you will have only 30 days from the date an adverse decision was made in your case to file your appeal or at least a notice of appeal. During COVID time, USCIS may extend this time by 30 or 60 days, but your notice of denial will not state that. You will need to check with your attorney if you will have extra time.
Case Law
Your chances on appeal and hence your prospects of winning your case will partially depend on the case law regarding the controversy at issue. If the case law is clear and not in your favor, you may choose to forego the appeal; or you may choose to argue that the existing case law is wrong, or that it is distinguishable from your situation. Even though rare, at times, you do have good chance at changing the case law: perhaps, the case law changed in similar situations; perhaps, new policies will be more favorable towards cases like yours, and you may have a chance at winning your case...
Facts
One thing you cannot change in your case would be FACTS: what happened and how. This cannot be changed, obviously. So, if your facts do not amount to the threshold you are seeking to meet, wasting time on appeal would be just that. However, at times, we can interpret facts, we can point that not all facts were taken into consideration when the decision was made, or, for example, that adjudicator placed a lot of emphasis on a couple of negative facts, but ignored other… This is a part of attorney’s job to review your case and determine which arguments may be the strongest.
Evidence
Evidence would be anything admissible that can support your facts: documents, declarations and affidavits, photos, articles, expert reports, medical records, etc. Different evidence may have different weight: for example, a testimony under oath made to an Immigration officer will have more weight than an unsworn letter. Do you have enough evidence? Can you obtain more evidence? Was this evidence available at the time initial decision on your application was made, or, perhaps, the evidence became available only now? At times, it is possible to add new evidence at the time of an appeal: for example, the Administrative Appeals Office will consider new evidence when making a decision. At times, to introduce new evidence you will have to make a motion to remand/reopen first. What to do in a particular situation will be decided by an attorney.
Cost
Finally, you will need to take into consideration cost of the appeal as well. Appeals require a lot of preparation, and as a rule, must be complied with strict rules for filing. As such, attorneys are likely to charge heft fees for them, in addition to the government filing fees. Due to the time restrictions, most likely, you will need to come up with those fees in a relatively short period of time. You will need to make a decision if it will be affordable for you to retain an attorney for the appeal depending on your goals and value an appeal may bring to your legal situation. After all, money can be always made, but a lost opportunity may be unrecoverable.
If you need help after a denial, give us a call. We will be happy to look into your situation! Call us at 917 885 2261 or book your appointment online.