Can VAWA be Appealed? Overview

“Can VAWA be appealed?” The simple answer to this question is “yes” but the legal requirements for a strong appeal are quite complicated. When you file an appeal, you are saying that ¬†United States Citizenship and Immigration Services (USCIS) or the immigration judge made a mistake. You are requesting that the Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA) take a second look at your case and agree with you.

How to File an Appeal?

The denial notice from USCIS provides information on how to file an appeal. You should mail your appeal to the address listed on the notice. If you lost your case in immigration court, you should send your appeal to the Board of Immigration Appeals (BIA). You have 30 days to file an appeal.

Can VAWA be Appealed? Should You File an Appeal?

Even though it is your right to file an appeal, this is not the only factor you should consider when you are thinking about whether to appeal a denial. Moreover, for court cases you should have reserved your right to appeal, otherwise you gave up that right. Some cases are rightly denied and other cases are mistakenly denied. You should assess your chances of winning before you spend time and money pursuing an appeal. Consult with a good immigration lawyer to help you make this decision.

Can VAWA be Appealed: Factors to Consider When Deciding Whether to File an Appeal

  1. Erroneous Decision

The most important factor to consider when deciding whether to file an appeal is whether the decision to deny your case was incorrect. To answer this question you must know the legal requirements for VAWA. A good immigration attorney is invaluable for this analysis. The lawyer will be able to apply the law to the facts of your case and see whether the decision was correct.

2. Likelihood of Success

Although no one can say for certain whether you will win your appeal, you can evaluate your chances. You should carefully review the Notice of Decision or the order from the immigration judge. So, although “can VAWA be appealed?” is a great question. “what are my chances?” is an equally important question.

3. Employment while your case is pending

It takes many years for you to get a decision on your VAWA case. You may have secured work authorization and are working at the time that you received the negative decision. If you don’t appeal, the VAWA denial decision becomes permanent and you will lose any work authorization that you gained while your VAWA case was pending. If you appeal, your case is technically still open and you can continue to renew your work permit.

4. Cost of an Appeal

It is not cheap to file an appeal because of the amount of legal work that is involved. In addition, all of the work must be done upfront because the appeal is due within 30 days. A good appellate lawyer will review your case thoroughly and submit an appellate brief, additional evidence, and immigration forms. The appellate brief requires numerous hours of legal research and writing. This is the lawyer’s tool to analyze your case and persuade the appellate body that your case should not have been denied. When trying to decide whether it is worth it to file an appeal, you should ask yourself “how much is a green card worth?” A green card allows you to live and work in the U.S. permanently, without limitation. When you compare how much you can make over your lifetime versus how much an attorney will charge you for an appeal, your lifetime earnings should be significantly higher than what the attorney will charge you. Although an attorney cannot guarantee that you will win your appeal, it is worth a shot if you have the right case.

5. Other Options

Sometimes an appeal is not the best option. If you did not provide sufficient evidence with your first petition, and are still married, you may be able to refile the case, rather than appeal. If you are divorced, you can refile your case, if the divorce was finalized less than two years ago. The benefit of refiling is that you do not have to prove that the first decision was incorrect. Some other options that do not require appealing include entering into a bonafide marriage with someone else, or applying for a T or U visa.

What if You Missed the Deadline for an Appeal?

USCIS gives you 30 days after service of the denial to file an appeal. You have 3 extra days if you received the decision by mail. If your appeal is late USCIS may still accept it and treat it as a Motion to Reopen or Motion to Reconsider.

The Board of Immigration Appeals has a strict 30-day deadline to file an appeal. The 30 days begins either when the court issued an oral ruling or mailed the decision. If you missed the deadline with the Board, it is very rare for this appellate body to accept your late appeal. The Board will likely dismiss your case.

You may file a Motion to Reconsider with the immigration judge, within 30 days of the denial. If you missed the 30-day appellate window with the BIA, you likely also missed the 30-day deadline for a Motion for Reconsideration. Both dates run simultaneously. Your only option then is to file a Motion to Reopen your VAWA removal case with the immigration judge, citing new facts that were either unknown or inaccessible at the time of your original hearing. Generally, a Motion to Reopen must be filed within one year of the immigration judge’s final order, but there are some exceptions.

Can VAWA be Appealed? Immigration Attorney

My name is Cheryl Fletcher and I have been an immigration attorney since 2015. I have helped countless abuse victims with their VAWA case. During a private online consultation, I’ll explain your rights and together we evaluate your chances of success. Take a step forward and eliminate the uncertainty regarding your future in America.

Cheryl-Fletcher Can VAWA be Appealed?