Denial Of Your Immigration Case & Your Options
A denial of your application could be due to a bureaucratic mistake or due to lack of evidence on the applicant’s part. Whether you were denied at the Consulate or at your local United States Citizenship and Immigration Services (USCIS) office, a dependable immigration lawyer is who you will need to guide you through the procedures involved in filing an Appeal or Motion to Reopen/Reconsider, or for requesting supervisory review at the consular post, advisory opinions from the Visa Office, a judicial review, waivers, or for implementing other strategies to aid your immigration case.
When USCIS informs an applicant or petitioner of the denial of their application, the applicant generally has 30 days (three days added if notice was mailed) to file an appeal or a Motion to Reopen or Motion to Reconsider their decision. The decision as to the most appropriate motion to file is an important one, and sometimes choosing one over the other can prove to be critical. If you receive a denial, you have several options, and even if the decision is not appealable, you can still file a Motion:
MOTION TO REOPEN
A motion to reopen is a request for the original decision maker to review a decision. The motion must be based on factual grounds, such as the discovery of new evidence (not just something that was previously omitted) or changed circumstances, and it must state the new facts to be provided in the reopened proceedings and be supported by affidavits or other documentary evidence. Also, there are specific requirements for filing a motion to reopen a case that was denied due to abandonment. If a motion to reopen meets the requirements, the underlying case will be returned to pending status. The USCIS may review all the evidence and either approve or deny the immigration case.
MOTION TO RECONSIDER
A motion to reconsider is a request to the original decision maker to review a decision based on legal arguments. It should explain the reason the decision is wrong. These usually involve arguing that the USCIS misinterpreted or misapplied the law, disregarded or misinterpreted the facts, or a combination of both errors of fact and law. The arguments generally rely upon the supporting evidence of existing law, regulations, policy, and previous case decisions.
Appealing a denial asserts that the deciding authority made a legally incorrect determination based on the law and the submission of evidence. There must be a reason given for why the decision was erroneous. The appeal asserts that the decision was legally incorrect based on law and the evidence presented and the reason the decision was erroneously made.
Most appeals of immigration actions are heard by the U.S. Citizenship and Immigration Services’ Administrative Appeals Office (USCIS AAO). Deportation cases may go to the Board of Immigration Appeals. Alternatively, requests for reconsideration or to reopen are processed by the same authority that made the initial determination. Consular visa applicants found ineligible by the Department of State may also apply for a waiver of inadmissibility.
Contact our office and our immigration lawyers will teach you how to challenge U.S. Citizenship and Immigration Services or the State Department, at (718) 324-0404 or (845) 849-9201, use the form at the right, or email us at info@DironRuttyLLC.com.