Clarke and Associates are the best US immigration lawyers in New York. Call 1-844-GOT-VISA today. Visit our offices in Long Island or Brooklyn for a consultation.

APPEALS

 

BOARD OF IMMIGRATION APPEALS (BIA Appeals)

Landmark Board of Immigration Appeals Case Won by Millicent Y. Clarke of Clarke and Associates, New York

An immigration board judge found a young Moroccan woman to be inadmissible and removable, and denied the her application for asylum and withholding of removal. She filed a timely appeal with Clarke and Associates.

Ms. Clarke established -- by credible evidence -- that the woman had suffered past persecution at the hands of her own father due to her religious beliefs and her views on women's roles in society. She had a well-founded fear of future persecution by her father because her views differed from his own.

Landmark Board of Immigration Appeals Case Won by Millicent Y. Clarke

Read the U.S. Department of Justice's Board of Immigrations Interim Decision here (PDF)

The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying immigration laws. The BIA has been given nationwide jurisdiction to hear appeals from certain decisions rendered by immigration judges (IJ) and by district directors of the Department of Homeland Security (DHS) in a wide variety of proceedings. BIA decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. Most BIA decisions are subject to judicial review in the federal courts.

Majority of appeals before the BIA involve orders of removal from an IJ, and applications for relief from removal. Other cases filed with the BIA involve motions for reopening and reconsideration of the BIA’s decisions previously rendered.

It is critical that an appeal is filed timely, as there are no exceptions for the late filing. An appeal to the BIA must be filed no later than 30 calendar days after the IJ renders an oral decision or mails a written decision. With very limited exceptions, a motion to reopen/reconsider must be filed within 90 days of the Board’s final administrative decision.

Our firm has had great success representing clients on appeal to the BIA. Recently Clarke & Associates won a number of BIA appeal cases. Among them, the BIA remanded the case to the IJ to determine whether the crime the client was convicted for was in fact a crime involving moral turpitude (CIMT). The IJ decided that it was, and our client was eligible for the 212(c) waiver. In another matter, the BIA sustained our appeal and agreed with Clarke & Associates that it would cause a lawful permanent resident (LPR) father “exceptional and extremely unusual hardship” if his daughter was to be removed from the United States, where it was established that she was a “surrogate” mother to her 3-year-old sister. Additionally, the BIA sustained our appeal and remanded the case to the IJ, where Clarke & Associates established that the client was not a recidivist, but rather suffered from kleptomania and has shown rehabilitation, and that due to her botched surgery, and severely injured United States citizen mother due to a car accident, her removal from the United States would cause “exceptional and extremely unusual hardship” to her United States citizen children. She was granted Cancellation of Removal.

 

APPEALS TO THE UNITED STATES COURT OF APPEALS

A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In May 2005, Congress enacted the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), which made a Petition for Review filed with an appropriate court of appeals the sole and exclusive means for judicial review of such orders.

An alien subject to a final order of removal must first exhaust all available administrative remedies before going to the court of appeals. That means that an alien must first appeal to the Board of Immigration Appeals (BIA), before filing Petition for Review with the court of appeals. A Petition for Review must be filed no later than 30 days after the date that an administrative decision becomes final.
A challenge to a BIA or ICE decision may involve legal, constitutional, factual, and/or discretionary claims. In general, (1) legal claims assert that BIA/ICE erroneously applied or interpreted the law; (2) constitutional challenges assert that BIA/ICE violated a constitutional right; (3) factual claims assert that certain findings of fact made by BIA/ICE were erroneous; and (4) discretionary claims assert BIA/ICE reached the wrong conclusion when exercising discretion.
Whether a particular claim is reviewable in the court of appeals often requires a complicated legal analysis and is informed by evolving case law. Even where a statutory bar applies, court of appeals still have jurisdiction to review questions of law or constitutional claims. See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D) (added by REAL ID Act.) Following the REAL ID Act amendments, few, if any, issues remain reviewable via habeas corpus. Thus, it is advisable to timely file a Petition for Review to preserve petitioner’s right to seek review in the court of appeals.
Clarke & Associates represents clients in federal courts, nationwide. Through the years, we have successfully petitioned and won a number of significant cases before the United States Court of Appeals for the Second Circuit. We have won a case where the Court of Appeals agreed that the intervening case law, Blake v. Holder, was controlling in our client’s situation, and the case was sent back to the Board of Immigration Appeals, which in turn, remanded the case to the IJ, where the client was able to apply for Adjustment of Status. In another successful case, the Court of Appeals sustained our appeal where Clarke & Associates was able to establish that the crime the client was convicted for did not necessarily constitute an aggravated felony for immigration purposes. The matter was remanded to the IJ, who granted the client Cancellation of Removal.

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LOCATIONS

NEW: Brooklyn Office
4919 Church Avenue
Brooklyn, NY 11203
By Appointment Only

Main Office
11 W. Sunrise Highway
Suite 1
Freeport, NY 11520
P: (516) 536-2680
F:
 (516) 536-2618

Hours: M-F, 9:00am - 5:00pm,

Saturday 10:00am - 3:00pm     (By Appointment Only)

Free Available Parking:
Unlimited free parking on Pine St. opposite JW Dodd Middle School.
4 hrs. free parking at Municipal Lot on Church St. 2 blocks south of Sunrise Hwy & across from fire station.
Paid Parking: On Sunrise Hwy in front of building and along Church St. south of Sunrise Hwy.

Southampton Office
53 Hill Street
Southampton, NY 11968
By Appointment Only

 

         
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