03 May 2023 Case Denied: Should You Appeal or Refile?
Dear Attorney Gurfinkel:
I just received a denial from USCIS (U.S. Citizenship and Immigration Services), giving me 33 days to file an appeal. I truly think I was eligible, but I am so heartbroken. Would you advise me to file an appeal?
Very truly yours,
RD
Dear RD:
The decision on whether to appeal a denial is not always simple and straightforward. There are many facts and factors to consider, such that I would recommend that people immediately consult with an attorney on the decision rather than trying to do it on their own. Among the factors to consider are:
- WHY was the case denied? The Decision/Denial typically spells out or explains the reasons for the denial. But in some cases, the reason is erroneous, either because the officer misapplied the law or the facts or did not consider relevant evidence.
- Was the person eligible or entitled to the benefits sought? If they are not, it would be a waste of time to appeal.
- Did the person submit proper evidence showing their eligibility for the immigration benefits sought? Typically, when a person appeals, they are limited to the “record on appeal,” which is the presentation they made to the officer. A person rarely is entitled to submit additional documents or evidence on appeal. But if a person did not make a full or proper evidentiary showing to the officer, then the record on appeal would support the denial. For example, in connection with a fraud waiver, if a person submitted a bare-bone declaration and evidence that failed to show extreme hardship to a qualifying relative, appealing the denial may not help because the record shows they did not meet their burden of proof to the officer.
- Would it be faster to file a new petition or application than it would to appeal? Sometimes it could take years before an appeal is finally heard. In addition, based on the “record on appeal,” the appeal could be dismissed or denied. As a result, years were wasted. Had the person filed a new petition, application, etc., it might’ve been faster, and they could’ve had better chances of success, especially if they properly packaged the new application rather than appealing with the existing record.
- Of course, there are many factors to consider before deciding to submit a new application rather than filing an appeal, such as whether it would affect a person’s immigration status or push a person’s priority date far off into the future.
- Is it possible to bring a motion to reopen or reconsider rather than appeal or refile? This may depend on whether there is new evidence, a misapplication of the law or facts, etc.
These are only a few factors a person would need to consider in connection with the decision on whether to appeal. Of course, the best course of action is to properly package and present your case at the outset to avoid denial. That’s where having an attorney could greatly increase the chances of approval. If you get a denial, the decision on whether to appeal is complex, and you should consult with an attorney on the best course of action.
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