One of my colleagues, an immigration attorney, asked me the other day whether it is still worth it to appeal an Immigration Court decision.
If you’ve read any of the recent decisions from the Board of Immigration Appeals (BIA) (especially Matter of G-R-B-, Matter of J-E-D-C-, Matter of L. Ramirez, and Matter of DIJI, among others), you might be thinking the answer is no. When we see BIA holdings that are so unfavorable for a respondent, it is easy to feel discouraged, throw up your hands, and think there is no use spending the money and time on an appeal.
But here is the reality check I gave my colleague, and what I always give the immigration (and other trial) attorneys I work with: Immigration Judges (IJs) are human, and they are still making errors in applying the law and agency policy as it stands today. In fact, far more of the recent BIA decisions involve findings of error on the part of an IJ than a limitation or reversal of prior law.
An experienced immigration appeals lawyer can find the best argument.
I've been perfecting appeals in immigration, state, and federal cases for nearly two decades. Because I review these cases from a bird’s eye view to find the best tree in the proverbial forest of arguments, I know a thing or two about whether an appeal has any chance of success.
I recently drafted a BIA brief for an immigration attorney’s client where the IJ had refused to grant the respondent a continuance and actively invited the government’s attorney to make a motion to pretermit the case, which the IJ then granted.
When you are in the trenches of a hearing, an IJ inviting a pretermit motion from DHS feels incredibly unfair. The instinct for many lawyers is to center their appeal on that perceived bias or procedural overreach.
But my intuition — honed from my work on hundreds of appeal briefs — told me that focusing on the IJ’s “invitation” was a bad bet. I knew there was no specific law or policy expressly prohibiting an IJ from inviting that motion, and IJs have a ton of discretion in an immigration proceeding (because its an administrative, rather than adversarial court, proceeding). Lo and behold, the BIA’s recent decision in Matter of G-R-B- confirmed my instinct: that case holds that an IJ can determine sua sponte on the face of the record to pretermit so an argument about whether the IJ improperly invited DHS to make the motion was a dead end.
Find the reversible legal error.
Instead of falling into the trap of focusing on what seemed most unfair, I centered my brief on the precise legal analysis required for determining good cause for a continuance.
I was able to point out that the IJ made specific, reversible errors under the law when he refused to grant that continuance. By sidestepping the distraction of the pretermit motion and drilling down on the established “good cause” standards, we built a substantive argument that gave the client a real fighting chance on appeal (the appeal is still pending, but I’ll try to update here when we get the disposition).
Some friendly takeaways for navigating Matter of G-R-B- (among others).
If your client’s I-589 was just pretermitted, here is how you should assess the viability of an appeal:
Do not rely on procedural outrage: Arguing that the IJ overstepped based on your past experience in Immigration Court is fraught with danger. Matter of G-R-B- shows that old IJ habits can change real fast.
Look for misapplication of the law: Did the IJ fail to properly analyze the standard for a showing a prima facie asylum claim? Or a continuance? Did they ignore specific evidence in the record? That is where your best appeal argument is lurking.
Get an outside perspective: A lawyer who has mulled over the facts of a case for years is unlikely to see the best appellate argument. You need an experienced appellate mind that is seeing the information for the first time.
I can take your client’s appeal off your plate.
Behind every winning appeal is a brief that nails the legal arguments, and presents the equities in a way that favors the client. If you are dealing with a tough IJ decision and aren’t sure if an appeal is viable, get in touch. I operate as a seamless, zero-friction extension of your practice to take complex brief writing and appellate strategy entirely off your plate.
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