- Can you share when an appeal is appropriate?
An appeal is appropriate if there is an issue of law or fact that you believe immigration got wrong. However, it is very important to understand that when we say “immigration” that encompasses a wide variety of federal agencies. Appealing, for example, a denial on a naturalization (US citizenship) application is going to be very different from appealing a denial in immigration court for deportation or removal proceedings. Things can get very complex very quickly if we begin to discuss appeals based on visa denials at a US Consulate abroad, or a denial of a Labor Certification with the Department of Labor concerning an employment-based immigrant petition.
To keep things as simple as possible, even though there is little simplicity when it comes to immigration law, I’ll provide a factual scenario that is a very common appeal we are working on right now due to recent changes in the immigration policy. The facts on these cases tend to be very similar. The US government designated certain foreign nationals to be under a Temporary Protected Status (“TPS”). There are approximately 320,000 foreign nationals living in the U.S. with TPS. The top three groups of people with TPS are from El Salvador (195,000), Honduras (57,000), and Haiti (46,000).
However, about one year ago USCIS, with no public notice, started denying these green card petitions.
TPS holders may have already been through their legal due process in the immigration court system and many of them were issued a final order of removal. However, they are protected from being removed from the US while the TPS designation is current. While foreign nationals have their TPS, they are lawfully present in the US and are eligible for employment authorization. Additionally, they are also eligible to apply for a travel document referred to as a parole benefit for humanitarian purposes. For example, if the TPS holder has a sick family member in their home country, they can apply for permission to leave and return to the US, even though they do not have a visa and they have a final order of removal. In other words, when they exit the US they will not be self-executing the final order of removal. Better yet, when they return to the United States, they will be inspected by a US Customs official and they will be paroled into the United States.
This lawful re-entry is a critical moment in time for the TPS holder, because now he or she has a valid entry into the US which makes them eligible to adjust status as a permanent resident if there is an immediate relative, such as a US citizen wife or adult child over 21 who can petition for them. For over 20 years USCIS has accepted this factual scenario and adjusted the status of tens of thousands of TPS holders and turned them into permanent residents; many of those are now US citizens.
However, about one year ago USCIS, with no public notice, started denying these green card petitions. They began to hold that USCIS had no jurisdiction to adjust the status of TPS holders with prior orders of removal. The Immigration Court retained jurisdiction, they claimed. Also, they stated that even though someone with TPS may have been paroled back into the US, that they remained in the same status as when they originally entered the US, i.e. someone who entered the US without inspection. In other words, their parole was not a parole.
- How do you first handle/approach an appeal? What information do you need to know?
In the case above, the decision to deny the adjustment of status from USCIS is not appealable. However, a motion to reopen or reconsider is allowed. The first thing that really needs to be discovered is if the decision is appealable or does there need to be some other kind of review filed and with another agency. In this scenario, the motion to reopen or reconsider is with the local USCIS Field Office that denied the petition. Since immigration is administrative in nature, administrative relief should be pursued, and many times must be pursued before it can be removed to the federal courts.
Typically, just the time constraints of having to file in a timely manner and also the fact that immigration law can change very quickly and, therefore, at the time of filing, you must ensure that your precedent decisions are still good.
- How long do clients have to make an appeal?
Typically, we have 30 days to file an appeal or a motion to reopen or reconsider (33 days if received by mail) from the date the decision was mailed. However, if one has exhausted their administrative appeals and wants to file suit in Federal Court, one must look at the statute of limitations, which can vary between two to seven years.
- How often are decisions turned around?
This can also vary widely. USCIS may be able to turn around a motion to reconsider in less than six months. The Administrative Appeals Office can take anywhere from six months to two years. The Board of Immigration Appeals can also take anywhere from six months to two years. Federal litigation can linger however, emergency injunctions can offer more immediate relief.
- What challenges do you face when working on an appeal?
Typically, just the time constraints of having to file in a timely manner and also the fact that immigration law can change very quickly and, therefore, at the time of filing, you must ensure that your precedent decisions are still good.
- How long does this process last? Is it costly?
Again, depending on the type of appeal it can vary in the range between $2,500 - $5,000. However, those costs can skyrocket if there ends up being federal litigation. However, those fees can also be lowered if there is a class action suit where there are many plaintiffs that have suffered the same injury by an immigration agency.
- Does the process differ if you are appealing outside the US?
Only in the challenges of keeping track of the client and staying in good communication.
- How has your work changed throughout the Trump administration? Are there any changes you wish to seek/ are there any changes you are setting precedent for?
Change comes fast and furious with this administration and it has been a time where we have had to roll up our sleeves and get in the arena. It has to be a time of fearless lawyering. Our clients, their families, their businesses, their futures, even the country’s future is in the balance. They are worth it. When we see injustice, we have to fight it one case at a time. It is why we became lawyers. It has always been, and today more than ever, my privilege to represent families that love this country even though it seems the country right now does not love them back. They get up every day, go to work, provide for their families, and fight for them against the full weight of the federal government. It’s something to admire and it is absolutely the most fulfilling moment when we finally see them swearing-in as United States citizens.
Pablo S. Hurtado, Esq
Hurtado Immigration Law Firm
Immigration & Nationality Law
4461 Camino Real Way
Fort Myers, Florida 33966
(239) 362-3670
Pablo S. Hurtado, Esq. is the Founder and Owner of Hurtado Immigration Law Firm, a full-service immigration firm based in Fort Myers, Florida and serving Southwest Florida since 2011.
Mr Hurtado, a graduate of Regent University School of Law in Virginia Beach, VA, is an attorney licensed in Florida, and is an active member of the American Immigration Lawyers Association (AILA). Mr Hurtado is frequently interviewed on local news broadcasts on Univision and Telemundo due to his experience in practising immigration law. He has first-hand experience with the immigration process as he is an immigrant from Bolivia and became a US citizen in 1996. Mr Hurtado served his community as an Assistant State Attorney for two years before entering private practice. His law firm offers a full-service immigration practice ranging from investor visas to representation in immigration court. The result is a law firm focused on providing immigration legal services to individuals, their families, and their businesses.
