An undocumented foreigner finds himself battling deportation proceedings in an immigration court and attends an individual or merits hearing. After the court hearing is over, the Immigration Judge (IJ) will then decide what will happen with the case. Regardless of whether it is good news or bad news the foreign national wants to know if his case is over or if the decision is really finalized.
Note that whether you appear at your immigration court hearing the immigration judge can still decide your fate. In fact, if you do not appear in court the judge will still make a decision in your absence and will place you in removal proceedings and hold it against you.
How and When the Immigration Judge Makes a Decision
After the completion of an individual or merits hearing (this is where the IJ focuses only on your case and reviews the evidence), the IJ will then decide what to do with your case. Normally, this does not happen on the first day of the individual hearing especially if more than one day is required to complete all testimonies, witness presentations provided, and so forth. The IJ has the option to either issue the formal decision orally (speak out loud and clear in court) or in written form on a document. If the IJ makes the decision by speaking it out loud in court, then a summary of his or her decision will be mailed to you.
However, several applicants have expressed dissatisfaction that they never received the written summary. Before you leave the court ensure that you provide your latest mailing address to the immigration court (EOIR) in writing, if not you will not receive a copy of the written or summarized decision. (See 8 C.F.R. § 1003.37.). A written copy of the decision will be very important to have on hand if you decide to appeal your case or make a motion to reopen regarding the IJ’s decision.
Appealing the Immigration Judge’s Decision
This is where you have the chance to act. An IJ’s decision is considered final if, after the hearing and adjudication, one of two things take place:
- The undocumented foreigner in removal proceedings (of the lawyer representing him or her) waives an appeal (says that he or she does not want to appeal the decision)
- The non-citizen in proceedings (or the attorney appearing on behalf of his or her client) waives an appeal (says that his or her client does not want to appeal the decision)
- The time to make an appeal ends.
(See 8 C.F.R. § 1003.39.). An appeal is a request sent to a higher court (a court with greater authority) asking for it to examine the decision of a lower court. An appeal will most likely need to be made with the Board of Immigration Appeals (BIA). The purpose of the BIA is to evaluate decisions of immigration judges. If the immigration judge verbally decides, then the judge will possibly follow up by inquiring with something like, “Do you waive appeal?” “Do you accept this decision as final?” or some alternative of one of these questions. Accepting an immigration judge’s decision as final will have the same effect as waiving an appeal.
Note that you do not have to decide immediately whether you want to appeal. If you have doubts and you want another court to review the decision later, you must let the judge know that you reserve an appeal. If you reserve an appeal, this gives you the chance to appeal later but no later than the 30-day timeframe stipulated.
Once you receive the immigration judge’s decision via regular mail, you have thirty days to appeal from the date the IJ’s decision was made. If you depart from the U.S. after the immigration judge decides and before you make an appeal, then your departure from the country will be deemed a waiver of your appeal and the decision will become final.
Requesting that an IJ Reopen or Reconsider a Case
If, after an Immigration Judge has decided on your case and new facts and proof emerge that the IJ did not consider or think about when deciding your case, you should then request a motion to reopen. By requesting a motion to reopen you are inquiring that the IJ reopen your file and undo his previous decision.
But if in the case you believe that the IJs decision was erroneous, or you think a change in the law would make a difference in the decision made by the IJ, you can file a motion to reconsider. This motion similarly asks the IJ to rethink and revisit his decision once again this way he hopefully issues a different one.
When Your Case Has Been Finalized
An Immigration Judge’s decision will be final, and your case will primarily come to an end if you choose not to file an appeal with the BIA or either file a motion to reopen or reconsider before an immigration judge. Depending on the facts of your case you will still stand a chance in obtaining a waiver or some form of government relief even when your case might seem to be over.
If by any chance you accidentally waived appeal or did not understand what the IJ meant when he or she issued a final decision by saying your case is over while you were unrepresented by an attorney at the court hearing; contact an immigration attorney. With legal advice you will be able to either file a motion to reopen or reconsider.
Hire an Immigration Lawyer
Not understanding the final decision of an immigration judge and what will happen next can be detrimental to your future. With the help of a qualified immigration attorney, you can see what options you have available for a better future. Contact Gambacorta Law Office at (847) 443-9303.