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Sunday, December 22, 2013

BIA -- remember to STAY REMOVAL during Appeal

Happy Holidays to everyone -- and I hope this posting finds folks setting enjoying the season, and a warm fire. As I contemplate the thought of Christmas, I am reminded of the many clients we have that may not be with there loved ones. One method of ensuring that our friends who have been denied relief in immigration court is through a BIA appeal. However, it is very important to remember that once an appeal is filed, a stay of removal must be requested before the stay will be granted. Stays are granted as a matter of course when an appeal is filed.

What are the steps to a BIA (Board of Immigration Appeals)filing? There are several routes, however, today we speaking only of an appeal from an immigration judge's decision. Generally, you have 30 days to appeal a decision of the Court. You must note your appeal at trial. Appeals are divided into three categories: (a) procedural deficiency, (b) abuse of discretionary (defined as a misapplication of fact or denial of objection), and (c) discovery of substantive information that was not available at trial but materially effects the outcome (this is rare, but can happen in immigration cases).

To effect a good appeal, you must get a copy of the Court hearing. Generally, this is accomplished by having your attorney contact the clerk of the Court that held the hearing, and request a CD that have the audio transcript of the trial. This is important! Both (a) and (b) above require a thorough and comprehensive understanding of the issues that were raised at trial. Even if you were the trial attorney that conducted the first case, you still need to have a copy of the transcript to cite to errors or omissions.

The appeals package consists of a cover letter, the appeals request (EOIR-26), notice of appearance before the BIA (EOIR 27), filing fee, and a motion to the Board to STAY REMOVAL. This last is critical -- forget this, and your client will be sent packing long before the Board can make a decision. It is not necessary to submit a full appeals brief when you initially file, however, you must indicate on the EOIR-26 that you intend to submit a brief. The Board will send you "orange sheets" -- these are forms that show the briefing schedule and due dates for all aspects of the appeal. That will arrive about 30 days (sometimes sooner) after your filing.

A note about the stay of removal. Generally, a stay is automatically granted once the request is received. HOWEVER -- if your client is detained, he/she will REMAIN detained during the pendency of the appeal. Be sure to discuss this aspect with the client BEFORE you file. A full appeal may take over a year -- during which your client will be stuck in the pokey. This makes for very unhappy clients if they are not briefed prior to agreeing to an appeal. Once the BIA has control of the case, you may petition for a bond reconsideration -- however, it will be based on the initial bond hearing that was held before the IJ (immigration judge), so be sure to get a copy of that transcript and be ready to argue the merits of reconsideration. I have yet to see a request for bond reconsideration by BIA be granted at this stage (appeals), but it may serve to placate your client to at least try (you never know...).

In future articles I will cover strategy on how to write an appeals brief in full, covering each of the three points (a, b, and c) outlined above. Below you will find a sample stay of removal request to submit when filing your BIA appeal.



Sean R. Hanover                                                                                  DETAINED
Hanover Law, PC
888 16th St. N.W. Ste. 800
Washington, DC 20006





UNITED STATES DEPARTMENT OF JUSTICE
BOARD OF IMMIGRATION APPEALS





IN THE MATTER OF                                IN REMOVAL PROCEEDINGS

CLIENT X          

RESPONDENT                                          FILE NO.:  AXXX-XX-XXXX






MOTION TO
STAY DEPORTATION PENDING HEARING ON THE MERITS



Comes now your petitioner, through counsel, and requests this honorable tribunal
grant a stay of deportation pendant the appeal process with BIA.

1.  Mr. X requested to re-open his underlying removal order in San Antonio Texas immigration court, based on lack of notice, was denied.

2.  An appeal was properly and timely filed with BIA in accordance with EOIR procedures.

3.  A stay is appropriate given the likelihood of success on the merits, and the expenses imposed on the government to transport and retrieve Mr. X for trial on remand.

4.  For the foregoing reasons, petitioner requests BIA exercise its discretion and grant a stay pendant the appeal process.

I ask for this:
Client X

Through Counsel:

Sean R. Hanover, Esq
Principal Attorney
Hanover Law, PC
888 16th St., NW Suite 800
Fairfax, VA 2006
703-402-2723



CERTIFICATION OF SERVICE

I certify a copy of this motion was served on DHS Office of Chief Counsel at 8940 Fourwinds Drive, 5th Floor, San Antonia, TX 78239.


Sean R. Hanover, Esq


Do you need help with a BIA appeal?  MOVE QUICKLY!  Timing is very important.  Contact us immediately for a free discussion on the matter, and a review of your case.

http://www.hanoverlawpc.com
703-402-2723

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.