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Immigration Forms Completion Assistance Center (I.F.C.A.C.) (904) 672-8241

Immigration Questions & answers

MIAMI IMMIGRATION COURT QUESTIONS & ANSWERS

Q. What is the Miami Immigration Court's mailing address and telephone number?
A. The Miami Immigration Court address and telephone number is:

Immigration Court
Executive Office for Immigration Review
One River View Square
333 South Miami Avenue
Suite 700
Miami, Florida 33130

Telephone: (305) 789-4221

Q. Does the Miami Immigration Court conduct hearings in other locations?
A. Yes. As a part of the Institution Hearing Program (IHP), Judges from the Miami Immigration Court conduct hearings in various state prisons and county jails for aliens who are serving criminal sentences. For information about this program, contact the court at the above address.

Q. What are the Court's hours of operation?
A. The Miami Immigration Court is open for business Monday through Friday from 8:00 AM to 4:30 PM. The Court is closed on federal holidays (New Year's Day, Martin Luther King Jr.'s Birthday, President's Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day, and Christmas Day).

Q. Is the Court open during bad weather?
A. In extremely bad weather, you should call the court prior to your hearing. The telephone number for the Court is (305) 530-6455.

Q. Where can I use the telephone at the Court?
A. There are no public telephones available at the court.

Q. What do I do if I don't remember the date and/or time of my hearing or to get information about my case?
A. Please call 1-800-898-7180. This is an automated system in English and Spanish that allows you to obtain information about your case.

Q. Can I call the Judge about my case?
A. The Immigration Judges do not speak to respondents or attorneys about individual cases outside the courtroom. If you have a question, you may call the Legal Technician assigned to the Judge.

Q. Can I get information on my family member's/friend's case?
A. The Court will release information only to the respondent or the respondent's attorney of record. Basic information, such as the next hearing date, is available 24 hours a day, 7 days a week, on the automated telephone line at 1-800-898-7810, but you must have the Alien Registration Number to obtain information.

Q. What is an Alien Registration Number?
A. It is an eight digit number, preceded by an "A," that is assigned to you by the Department of Homeland Security. It is used as your file or case number by the Court.

Q. How do I notify the Court if I change my address or move out of state?
A. You must notify the Court of any change of address while your case is pending. The form used to notify the Court of any change of address, Form EOIR-33, can be obtained from the Immigration Court's office at One River View Square, 333 South Miami Ave., Suite 700, Miami, FL.. .

Q. Can I have my case transferred to another Court if I move out of state?
A-If you move out of state, you may request a "Change of Venue" (transfer of your case to another Court) from the Immigration Judge in Miami. Please follow the procedures in the Local Rules for requesting a Change of Venue. However, until the Immigration Judge grants your request, you are required to appear at all scheduled hearings before the Court.

Q. May I bring my children to Court with me?
A. If your children have been given a notice to appear in their own names, they must be brought to court for the first hearing. If your children have not been given a notice to appear, it is not recommended that you bring them to Court.

Q. Are food and beverages allowed in the courtrooms?
A. No.

Q. What should I wear to Court?
A. Business attire.

Q. What should I expect when I arrive at the Court building?
A. Please arrive thirty minutes prior to your scheduled hearing time. All persons entering the Court must pass through a metal detector. All packages, briefcases, purses, etc. will be x-rayed and searched as necessary. No camera or video equipment is allowed in the building. Cellular telephones and beepers must be turned off before you enter the courtroom. The building is a smoke-free facility.

Q. What documents should I bring to my hearing?
A. You should bring the notice to appear (or any charging document) and the notice of hearing, if separate. If you have any family members who have received such documents, you should bring copies of those documents also. At your initial hearing, the Immigration Judge will advise you of which papers would be beneficial in your case and ask you to bring copies to your next hearing.

Q. I don't speak/understand English. Will there be an interpreter there to translate?
A. Yes, the Court will arrange for an interpreter for your hearing in your native language.

Q. Can I request that an attorney be appointed for me? Will you assign an attorney to me since I have no money or have been unable to locate one willing to do the case?
A. Persons appearing in Immigration Court may be represented at no expense to the government. This means that you have the right to be represented, but not to have an attorney appointed. You must obtain representation on your own or with the assistance of family or friends. Each Immigration Court also maintains a List of Free Legal Service Providers, containing information on organizations willing to represent individuals in Immigration Court at little or no charge.

Q. What if I don't have a lawyer with me?
A. YOU MUST COME TO YOUR HEARING ANYWAY. You should have received a List of Free Legal Service Providers from the DHS. If you did not receive it or lost this list, the Immigration Judge will provide you with another copy.

Q. Do I have to have a lawyer?
A. No. You may elect to proceed without a lawyer if you choose to do so. However, the DHS will have an attorney present to represent them.

Q. How can I give my documents to the Court?
The Court accepts documents in person during the hours of operation or by mail. You may be directed by the Immigration Judge to file a document in person in Court. If so, you must file the document as directed. Please check the Local Rules to be sure you follow them when filing documents. All submitted documents should have your name and Alien Registration Number on them. Please keep a copy of all documents filed with the Court for your records.

Q. Will the Court accept a fax from me?
A. No.

Q. When I give my documents to the Court, can I leave Department of Homeland Securitys' (DHS) copies with you?
A. No. Copies of all documents given to the Court also must be given to the DHS attorneys. Documents filed with the Court must include a signed statement that a copy has been delivered to the DHS attorneys. They are located on the 4th and 5th Floor at 155 South Miami Avenue, Miami, Florida 33130. The telephone number for the DHS attorneys' office is (305) 400-6160.

Q. Can the Court copy documents for me?
A. No. The Court does not provide copy services to the public.

Q. Where do I pay fees for applications?
A. The Immigration Court does not accept fees for applications. All application fees are to be paid to the Department of Homeland Security office located at 7880 Biscayne Boulevard, Miami, Florida.

Q. What will happen if I do not come to my hearing?
A. You will be ordered removed and deported in your absence if you do not appear when you had notice of the hearing and the DHS can prove the charges against you. You can request that the Judge reopen your case by filing a motion to reopen. The motion to reopen must state in detail the reasons for your failure to appear and can be supported with documents. You must submit with the motion evidence that you paid the proper fee for the motion, or a request that the fee be waived. If you received notice of your hearing, a motion to reopen must be filed within 180 days after the date of the removal order and must demonstrate exceptional circumstances which caused your failure to appear. Exceptional circumstances are circumstances beyond your control, such as your own serious illness or the death of an immediate relative. If you did not receive proper notice of the hearing or were in federal or state custody, a motion to reopen can be filed at any time.

Q. What will happen at my hearing?
Whether you proceed with or without a lawyer, the Immigration Judge will advise you of your rights and the charges against you. The Judge will advise you that you will have a reasonable opportunity to examine and object to the evidence against you, to allow you to present evidence on you own behalf, and to cross examine witnesses presented by the government. If you are in the United States illegally, the Judge will advise you of any applications you can make to remain here.

Q. What will happen at the conclusion of my hearing?
A. The Immigration Judge will enter a decision in your case, which may be oral or written. If oral, it will be presented at the conclusion of your hearing. If written, it will be sent to you or your attorney in the mail. Either way, the decision will contain reasons for granting or denying any relief requested. You will have the opportunity to appeal this decision if you so choose, and the Judge will explain to you how to do so.

Q. How do I find out about the status of my case on appeal?
A. Call the Board of Immigration Appeals at (703) 305-1178.

Q. How can I get work authorization or get my work authorization renewed?
A. The Immigration Court does not issue or renew work authorizations. To get or renew your work authorization, you must apply with the Department of Homeland Security at 7880 Biscayne Boulevard, Miami, Florida.

Q. I lost my lawful permanent residence card. Can the Court replace it?
A. The Immigration Court cannot issue replacement residence cards. To replace a lost lawful permanent residence card, you must apply with the Department of Homeland Security at 7880 Biscayne Boulevard, Miami, Florida.

Q. Where do I pay a bond/get a refund of a bond?
A. All bonds are paid, or refunds should be requested through, the Department of Homeland Security, Detention and Deportation Section, 7880 Biscayne Boulevard, Miami, Florida.

A: You can call your lawyer first. If you don't have one, you may call the Government. there are several service or offices to call. You can call the Visa Services Telephone Inquiries Branch. The number is (202) 663-1225. This contains recorded information for visa applicants. After listening to one message, there is an option to speak to an officer between 8:30 A.M. and 5:00 P.M. They can usually explain what aspects of immigration law and regulation are applicable in certain cases. They can also check if a case has been returned to the State Department for an advisory opinion.

A: Once an individual is in the United States, they come under Immigration and Naturalization Service (INS) jurisdiction. You can call the INS toll free at 1-800-755-0777 or here in Washington at 202-307-1501 or 514-4330.

A: It is an opinion rendered by Visa Services when a post has a question about the interpretation of immigration law and needs the State Department to make a determination on a point of that law.

A: Visa Services does not exercise authority to change consular officers' decision on visa applications, but they can assist in finding out the status of an application. They can also suggest several different methods for getting the information addresses for letters, telexes, faxes, and, in emergency situations, cables. If you have some facts on an individual case, they can frequently explain the legal grounds for refusal and any possible avenues of relief, for example.

A: Visa Services may be able to suggest other channels.

A: An immigrant visa is the visa issued to persons wishing to live permanently in the United States. A nonimmigrant visa is the visa issued to persons with permanent residence outside the U.S. but who wish to be in the U.S. on a temporary basis, for example, tourism, medical treatment, business, temporary work, or study.

A: To become a legal permanent resident, an alien must first be admitted as an immigrant. There are two basic methods for obtaining an immigrant visa: 1) through family relationship with a U.S. citizen or legal permanent resident, or 2) through employment. Specific information is available from the Immigration and Naturalization Service in the U.S. by calling 202-514-4330.

A: An immediate relative petition can be filed by a U.S. citizen on behalf of a spouse, parent, or child. A preference petition is filed by a U.S. citizen on behalf of a son or daughter, by a legal permanent resident on behalf of a spouse, son or daughter, or child, or by an employer on behalf of an employee.

A: An alien must be sponsored by a relative or employer who files the appropriate petition with the Immigration and Naturalization Service (INS). INS approves the petition, it is forwarded to the National Visa Center in Portsmouth, New Hampshire. The National Visa Center then informs the beneficiary that an approved petition has been received and provides instructions on next steps. As soon as a visa number is available on a preference petition or as soon as U.S.C.I.S. (formerly I.N.S.) approves an immediate relative petition, the National Visa Center sends the beneficiary a packet which includes, among other things: OF-l69 (the cover letter listing the documentation necessary for the immigrant visa interview), OF-l79 (Biographic Data for Visa Purposes), and OF-l67 (Evidence Which May Be Presented to Overcome the Public Charge Provisions of the Law). The packets are available only from the National Visa Center or posts that process immigrant visas.

A: Requirements may differ slightly from post to post, but the basic requirements include: a passport, three photographs, birth and police certificates, marriage, divorce, or death certificates, proof of financial support, and medical examination. More detailed information would have to come from the National Visa Center or the processing post.

A: Persons from countries that do not have an American embassy or consulate are considered "homeless" because they cannot return to their home country to be interviewed for the immigrant visa. When the National Visa Center receives an immigrant visa approved petition on a "homeless" case, it assigns the case to an embassy or consulate that has been determined is capable of handling the additional workload. The petitioner or beneficiary will be informed by the National Visa Center of the post that was chosen.

A: Several factors influence how long the process may take. Immediate relative visas are not numerically limited by statute so, workload permitting, the post may begin processing the approved petition upon receipt. Preference visas are numerically limited; therefore, the post must wait until the priority date on the petition is available before starting to process the case. The major reason for lengthy waits, i.e. priority dates that are months or several years earlier than your inquiry, is the fact that each year many more people apply for immigrant visas than can be satisfied under the annual numerical limit set by law for preference cases. Certain categories, such as the family fourth preference, are heavily oversubscribed.

A: The priority date, in the case of a relative immigrant visa petition, is the date the petition was filed. In the case of an employer-sponsored petition, the priority date is the date the labor certification was filed with the Department of Labor. The Visa Bulletin is a monthly publication which gives the changes in availability of priority dates. (See question below for more information.) Visa Services also has a twenty-four hour recording which gives the monthly priority dates. Dial (202) 663-1541.

A: The Department of State's Bureau of Consular Affairs offers the monthly Visa Bulletin on the Internet's World Wide Web. The Internet Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the Visa section which contains the Visa Bulletin.

In addition to the Internet, the Visa Bulletin can be accessed and downloaded from the Consular Affairs electronic bulletin board. Those with a computer and modem should dial (301) 946-4400. The login is travel and the password is info.

Individuals may also obtain the Visa Bulletin by fax. From a fax phone, dial (202) 647-3000. Follow the prompts and enter in the code 1038 to have the Visa Bulletin faxed to you.

(The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (202) 663-1541. The recording is updated in the middle of each month with information on cut-off dates for the following month.)

To be placed on the Department of State's Visa Bulletin mailing list or to change an address, please write to:

Visa Bulletin
Visa Office
Department of State
Washington, D.C. 20522-0106

Only addresses within the U.S. postal system may be placed on the mailing list. Please include a recent mailing label when reporting changes or corrections of address; the Postal Service does NOT automatically notify the Visa Office of address changes. (Obtaining the Visa Bulletin by mail is a much slower option than any of the alternatives mentioned above.)

The Visa Bulletin can also be contacted by E-mail at the following address:

VISABULLET@SA1WPOA.US-STATE.GOV

(The Visa Bulletin is not distributed by E-mail, however.)

A: Each country has its own requirements for obtaining police certificates or clearances. Specific information is available from the U.S. consulate processing the case.

A: The cost of an immigrant visa is $260 (U.S.) for application and $65 (U.S.) for issuance per person, regardless of age (MAY BE CHANGED). There may also be fees to obtain required documents, for certifying or notarizing documents, and for the medical examination. The cost of the immigrant visa itself remains constant, but other fees vary from post to post. The applicant will be informed of fees by the processing post. The fees are payable in U.S. and equivalent local currency. Cash is acceptable at all posts; other methods of payment must be determined by the processing post.

A: The consul may issue an immigrant visa with a maximum validity of six months. If an applicant must delay travel to the U.S. beyond six months, he/she should contact the U.S. consulate and arrange to have the interview scheduled closer to his/her possible departure. If an immigrant visa has already been issued and circumstances force the alien to remain abroad longer, the applicant should contact the U.S. consulate and request an extension of the immigrant visa's validity. If the validity of an immigrant visa expires, a new one may be issued upon payment of the statutory application and issuance fees (U.S. $260).

A: A child born abroad of legal permanent resident parents may enter the U.S. without a visa provided the child is accompanied by a parent upon that parent's initial return to the U.S. within two years of the child's birth with documentation showing the parent-child relationship.

A: The child must have an immigrant visa to enter the U.S. The legal permanent resident parent(s) must file a preference petition with the Immigration and Naturalization Service.

file apetition at any foreign service post for the immigration of a relative? A: Authority to accept a petition rests solely with U.S.C.I.S. (formerly I.N.S.). USCIS has determined that petitions must be filed in the petitioner's place of residence. Therefore, if the petitioner resides in the U S., the petitioner must file at his/ her local USCIS office; if the petitioner resides abroad, the petitioner must file at the U.S. embassy or consulate that has jurisdiction.

A: A guest of a U.S. host can be helped by sending him/her a letter of invitation. The letter should include the invitee's name, reason for visit, period of stay in the U.S., and method of payment of expenses. If the guest is paying his/her own expenses, he/she must be prepared to show the consular officer that sufficient funds are available for the trip. If the American host is paying the expenses, an affidavit of support may be included.

A: An applicant must have a passport, valid for six months beyond duration of the proposed visit, one passport-size photograph, and proof of social, family, economic, professional or other compelling ties to a residence outside the United States to which he/she will be expected to return after the visit. It is helpful for an applicant to have a letter of invitation and support, if he/she is visiting someone in the U.S.

A: The requirements are generally the same as for a visitor visa. However, in addition to the passport, photo, and proof of ties abroad, the applicant must also have an I-20 form issued by the school he/she wishes to attend. The I-20 form is proof that the applicant has been accepted for a program of study at an accredited institution.

A: USCIS, Immigration and Citizenship Service (INS) authorizes changes of visa status when an alien is in the U.S. The local USCIS office should be contacted.

A: They should apply at the local USCIS office.

A: In certain circumstances, yes. VO does reissue A, E, G, H, L, and I visas, so long as there is the same type visa stamp already in the passport, and the date of expiration is not more than one year earlier. Journalists needing to renew their I visas may call 202-663-1213 between 2:00 P.M. and 4:00 P.M. eastern time daily.

A: The U.S. citizen must file a fiance(e) petition, Form I-129F, with the local USCIS (Formerly INS). The USCIS will forward the approved petition to a U.S. embassy or consulate abroad. The post will then contact the alien with information and eventually schedule an interview for a fiance(e) visa. The alien has 90 days from entry into the U.S. in which to marry the U.S. citizen.

A: No. After the marriage takes place, the U.S. citizen must contact Immigration and Naturalization Service to change the alien spouse's status to legal permanent resident. This information is given to the alien fiance(e) upon his/her entry to the U.S.

A: An applicant is always told the reason for denial, orally or in writing. If an applicant does not understand the reason for denial, or wishes to offer further evidence to overcome the denial, he/she should contact the post where the application was made to determine that post's reapplication policy.

A: You should know that all denials are reviewed by a senior consular officer. There is no "appeal" process per se on visa denials, but an applicant can reapply for a Nonimmigrant visa if he/she can present new evidence to overcome the previous grounds for refusal. Some high-volume posts require that a significant period of time (six months to one year) elapse before reapplication with new qualifying evidence. By law, the U.S. consul must be persuaded that the applicant has a permanent residence abroad to which he or she intends to return after a temporary stay in the U.S; otherwise, the consul must presume that the applicant is planning to remain here permanently. Since a nonimmigrant visa is not intended for someone who plans to stay permanently, the consular officer must refuse the visa.

A: This is generally done by showing evidence of family, social, employment, financial and other ties to the home country that will compel a return from the U.S. Having a permanent residence abroad is a requirement for tourist, business, student, exchange visitor and some temporary worker visas.

A: Unfortunately, there is little a U.S. sponsor can do to help an applicant qualify. The amount of money the U. S. sponsor has is not relevant; there is no way the U.S. sponsor can guarantee that the applicant will leave the U.S. at the end of his or her stay. It is up to the applicant to show that he or she meets the requirements.

A: If the form begins with the letter "I, or N, or G," it is an Immigration Service (USCIS) form and you will need to call them. The number to call to get forms from the INS is 1-800-870-FORM or 1-800-870-3676. If you are looking for a form OF-156 (Nonimmigrant Visa Application), the visa applicant should get it at a U.S. embassy or consulate overseas. If you have questions about a Packet 3 or Packet 4, you need to call the National Visa Center at 603-334-0700.

A: The mail-in period for the 2000 Diversity Visa Lottery is over. Winners will be notified by the National Visa Center. Those who are not notified can assume they were not selected and can re-enter next year.

A: You need to call the USCIS about the examination and the naturalization process.

A: You need to call the USCIS who issues green cards to legal permanent residents.

A: From the embassy or consulate of the country you are planning to visit. The booklet, Foreign Entry Requirements has information on visa/entry requirements, embassy and consulate addresses, and telephone numbers for all foreign missions in the United States. (See the FAQ entitled "Other Subjects" for information on how to obtain a copy of Foreign Entry Requirements.)

 

Source: The Department of State Bureau of Consular Affairs.

Forms of Relief From Removal

The Executive Office for Immigration Review (EOIR), an agency of the Department of Justice, oversees three components which adjudicate matters involving immigration law matters at both the trial and appellate level.  Under the Office of the Chief Immigration Judge, more than 200 Immigration Judges located in 53 Immigration Courts nationwide conduct proceedings and decide individual cases.  The agency includes the Board of Immigration Appeals (BIA), which hears appeals of Immigration Judge decisions, and the Office of the Chief Administrative Hearing Officer, which handles employment‑related immigration matters.

This fact sheet summarizes the most frequently requested forms of relief that are available to an alien who has been found to be removable.  These descriptions are not fully inclusive and do not encompass the many regulatory and court interpretations that determine actual applicability of relief in an individual case.  Also, the descriptions that follow are subject to change since Congress may legislate new laws.  Accordingly, the following summaries are intended only to assist the public’s general understanding of the types of relief from removal, and interested parties should thus refer to controlling law and regulations for a precise and complete understanding of the topics presented.

Discretionary Relief

Once an alien in proceedings is found to be removable, he or she, if eligible, may request one or more types of discretionary relief.  This section describes some types of discretionary relief that are available during a hearing; administrative relief and judicial review after a hearing is completed are discussed below.  The alien has the burden of proving that he or she is eligible for relief under the law, and usually that he or she deserves such relief as an exercise of discretion.

Voluntary Departure – Voluntary departure is the most common form of relief from removal and may be granted by Immigration Judges, as well as the Department of Homeland Security (DHS), which absorbed the functions of the former Immigration and Naturalization Service.  Voluntary departure avoids the stigma of formal removal by allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country, or another country if the individual can secure an entry there.  Immigration Judges will provide aliens information on the availability of this form of relief when taking pleadings.  It is important to note that aliens granted voluntary departure must depart within the time specified by the Immigration Judge.  Although an Immigration Judge has the discretion to set a shorter deadline, aliens granted voluntary departure prior to the completion of removal proceedings must depart within 120 days, and those granted such relief at the conclusion of removal proceedings must depart within 60 days.  In addition, in order to avoid being penalized for choosing to appeal a decision rather than depart, the BIA usually will extend an earlier grant of voluntary departure for 30 days.  As with other forms of discretionary relief, certain individuals will be found ineligible for voluntary departure, and those granted voluntary departure who fail to depart are subject to fines and a 10-year period of ineligibility for other forms of relief.

Cancellation of Removal – This form of discretionary relief is available to qualifying lawful permanent residents and qualifying non-permanent residents.  For lawful permanent residents, cancellation of removal may be granted if the individual:

  • Has been a lawful permanent resident for at least 5 years;
  • Has continuously resided in the United States for at least 7 years after having been lawfully admitted; and
  • Has not been convicted of an “aggravated felony,” a term that is more broadly defined within immigration law than the application of the term “felony” in non-immigration settings. 

Cancellation of removal for non-permanent residents may be granted if the alien:

  • Has been continuously present for at least 10 years;
  • Has been a person of good moral character during that time;
  • Has not been convicted of an offense that would make him or her removable; and
  • Demonstrates that removal would result in exceptional and extremely unusual hardship to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either U.S. citizens or lawful permanent residents. 

It is important to note that different standards are used in determining eligibility for victims of domestic violence.

Asylum – Under section 208(a) of the Immigration and Nationality Act, the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a “refugee.”  Generally, this requires that the asylum applicant demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion.  However, an alien may be ineligible for asylum under certain circumstances, including having failed to file an asylum application within an alien’s first year of arrival in the United States, being convicted of an aggravated felony, or having been found to be a danger to national security.  Similar forms of relief are Withholding of Removal and applications under the United Nations Convention Against Torture.

Adjustment of Status – This form of discretionary relief is available to change an alien’s status from a non-immigrant to a lawful permanent resident.  Aliens who have been previously admitted into the United States can apply to DHS for adjustment of status, while aliens in removal proceedings apply before an Immigration Judge.  Several conditions must be met, including that the alien is admissible for permanent residence and an immigrant visa is immediately available at the time of application.  Aliens who qualify for visas allowing an adjustment of status are often petitioned for by a spouse (or another family member) or an employer.  Certain individuals, including criminals and aliens who fail to appear for proceedings or fail to depart after a grant of voluntary departure, and those who were ordered removed may be ineligible for adjustment of status.

Administrative and Judicial Relief

Motions to Reopen or Reconsider – An alien may move to reopen or to reconsider a previous decision by filing a timely motion with an Immigration Judge or the BIA.  The central purpose of a motion to reopen is to introduce new and additional evidence that is material and that was unavailable at the original hearing.  A motion to reconsider seeks a reexamination of the decision based on alleged errors of law and facts.  Unless an exception applies, a party may file only one motion to reopen and one motion to reconsider.  With a few exceptions, a motion to reopen proceedings must be filed within 90 days of the final removal order, while a motion to reconsider must be filed within 30 days of the date of the final order.  The filing of such motions does not suspend the execution of the removal decision unless a stay is ordered by the Immigration Judge, the BIA, DHS, or the alien seeks to reopen an in absentia order (a decision made when the alien was absent at the proceeding).

Stay of Removal – A stay of removal prevents DHS from executing an order of removal, deportation, or exclusion.  Depending on the situation, a stay of removal may be automatic or discretionary.  An alien is entitled to an automatic stay of removal during the time allowed to file an appeal (unless a waiver of the right to appeal is filed), while an appeal is pending before the BIA, or while a case is before the BIA by way of certification.  Except in cases involving in absentia orders, filing a motion to reopen or reconsider will not stay the execution of any decision made in a case.  Similarly, filing a petition for review in Federal court also does not result in an automatic stay of a removal order.  Thus, a removal order can proceed unless the alien applies for and is granted a stay of execution as a discretionary form of relief by the BIA, Immigration Judge, DHS, or a Federal court.  Such a stay is temporary and is often coupled with a written motion to reopen or reconsider filed with the Immigration Court, the BIA, or an appeal to a Federal Circuit Court.

Administrative Appeal – The BIA is the highest administrative body with the authority to interpret Federal immigration laws.  The BIA has jurisdiction to hear appeals from decisions of Immigration Judges and certain decisions of DHS.  Either an alien or DHS may appeal a decision from the Immigration Judge.  In deciding cases, the BIA can dismiss or sustain the appeal, remand the case to the deciding Immigration Judge, or, in rare cases, refer the case to the Attorney General for a decision.  A precedent decision by the BIA is binding on DHS and Immigration Judges throughout the country unless the Attorney General modifies or overrules the decision.  With respect to the filing deadline, the appeal of an Immigration Judge’s decision must be received by 30 calendar days from the date it was issued by the court.  

Judicial Review – The Immigration and Nationality Act confers Federal courts jurisdiction over certain decisions appealed from the BIA.  However, subsequent laws have substantially restricted judicial review of removal orders.  An alien has 30 days from the date of a final removal decision to file a judicial appeal, which is generally filed with the Court of Appeals.  The procedures and applicability of judicial review in immigration cases are complex and governed by a number of court decisions and interpretations that, in many circumstances, are not clearly resolved.  For an understanding of how judicial review might apply in a specific case, qualified legal counsel should be consulted.

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