Here's a hopefully hypothetical scenario: You apply for asylum (or some other relief) in Immigration Court and the judge denies your case. What do you do?

The losing party in Immigration Court has the right to appeal to the Board of Immigration Appeals (BIA), which is a higher court that reviews the decision of the Immigration Judge (IJ) to determine whether the IJ made a mistake. If you "win" your appeal, the BIA will explain the IJ's error and "remand" (send back) the case to the judge to issue a new decision.

Today, we'll discuss how to evaluate your chances for success on appeal, how the appeals process works, and what happens if you win or lose the appeal.

When the IJ issues a decision, he should explain his reasoning, either orally or in writing. If you understand why the IJ denied your case, you will be better able to evaluate the chances for success on appeal.

In my mind, there are two broad categories of denials: Some cases are denied based on credibility (i.e., the judge did not believe you); in other cases, the judge believed you were telling the truth, but found that you did not qualify for asylum or other relief. A third (unlucky) category of denial is where the IJ found that you were lying and also determined that even if you were telling the truth, your case would still be denied.

The first category--a credibility denial--is usually more difficult to win on appeal. That's because the BIA will never see you in person. They rely on the IJ's observations of your demeanor and responsiveness. For this reason, the Board will generally defer to the judge's credibility determination, and only reverse if there is clear error. That's not to say that the IJs have free reign. They must explain their reasoning and why they have determined that the applicant is not credible. To overcome an adverse credibility determination, you often have to parse out the IJ's findings and point to any errors between the testimony and evidence on the one had, and the judge's conclusions, on the other. This can be quite tedious, and if there are not obvious errors, the BIA will often let the judge's findings stand. While it is not impossible to get the BIA to reverse an IJ's credibility determination, such appeals are less likely to succeed.

Cases where the IJ found the applicant credible and thus accepted that her story is true, but denied relief, have a better chance for success on appeal. That's because the BIA can simply determine whether the IJ made the correct decision given the facts and the law. The Board generally does not defer to the IJ's findings in such cases, and so if you can demonstrate that the IJ did not apply the law properly, the BIA should reverse (i.e., you win). This is not to say that such a case is easy to win; only that it is usually more likely to be successful than a case where the judge found that you were not telling the truth.

In terms of the process, the first step after a case is denied is to file Form EOIR-26, the Notice of Appeal. In this form, you briefly explain the reasons for the appeal. For example:

The Immigration Judge (IJ) found that I was credible. The IJ also found that I suffered harm rising to the level of persecution. However, the IJ found that there was no nexus to a protected ground. In fact, I was kidnapped, harmed, and threatened with death in Rwanda due to my political opinion (opposition to the government), imputed political opinion (my husband's support for the opposition), and my ethnic group (Tutsi). My husband was also persecuted for similar reasons. Had the IJ properly weighed the evidence, he would have found that the harm I suffered was on account of my actual and imputed political opinion and my Tutsi ethnicity. Also, I face future persecution for these same reasons. I will submit a brief with additional detail, and I reserve the right to raise additional arguments in that brief.

Along with the form, you must include a copy of the judge's decision and the filing fee ($110) or a fee waiver. The form instructions provide the mailing address and information about payment. Many Immigration Court cases have online filing for attorneys. If so, the EOIR-26 can be filed electronically.

It is very important that you file the EOIR-26 as soon as possible after the IJ's decision. The form must be received by the BIA within 30 days of the judge's decision. If the form is received after that time, it will be rejected and the judge's decision will become final.

Once the EOIR-26 is filed, you will receive a receipt, indicating that the appeal is pending. If you have a work permit, you can renew the permit normally during the pendency of your appeal.

At some point--it may be in a few months, but more commonly, it will be in a year or two--you will receive a copy of the transcript and a briefing schedule. The transcript is a written copy of everything everyone said in Immigration Court. The briefing schedule will indicate that you have 21 days to file the brief, which is the written explanation of why the IJ's decision is incorrect. You can ask for an additional 21 days to file the brief, but you cannot generally get an extension after that time. You can see a sample brief here.

After you file your brief, the DHS (the prosecutor) can file a reply brief. In many cases, DHS does not file a reply brief. If they do, you can file a response.

After another indeterminate wait, the BIA will issue a decision. Either they will reverse the IJ and remand the case with instructions for further consideration, or they will dismiss the appeal and the judge's order will become final. In the latter case, you can file a petition for review in federal court. However, unless the federal court specifically "stays" (stops) your removal, DHS can deport you at this point. You can also no longer renew your work permit.

Finally, while it is not common, I should mention that if you win your case in Immigration Court, DHS can appeal.

BIA cases can be complex, and it is very helpful to have the assistance of a lawyer. While it is difficult to win at the BIA, it is possible, and if you feel that the Immigration Judge's decision is improper, you can appeal and seek a better result.

Originally posted on the Asylumist: