Waiver of Appeal in the United States
Waiver of Appeal in relation to Immigration Courts
(information based on the DoJ Manual)
Effect of appeal waiver
If the opportunity to appeal is knowingly and voluntarily waived, the decision of the Immigration Judge becomes final. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.39. If a party waives appeal at the conclusion of proceedings before the Immigration Judge, that party generally may not file an appeal thereafter. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.3(a)(1), Matter of Shih, 20 I&N Dec. 697 (BIA 1993). See (in this American law platform, in relation to immigration courts and judges) also 8 C.F.R. § 1003.1(d)(2)(i)(G).
Challenging a waiver of appeal
Generally, a party who waives appeal cannot retract, withdraw, or otherwise undo that waiver. If a party wishes to challenge the validity of his or her waiver of appeal, the party may do so in one of two ways: either in a timely motion filed with the Immigration Judge that explains why the appeal waiver was not valid or in an appeal filed directly with the Board of Immigration Appeals that explains why the appeal waiver was not valid. Matter of Patino, 23 I&N Dec. 74 (BIA 2001). Once an appeal is filed, jurisdiction vests with the Board, and the motion can no longer be ruled upon by the Immigration Judge. For detailed guidance on whether the Immigration Court or the Board has jurisdiction over a particular matter in which an appeal has been filed, parties should consult the Board of Immigration Appeals American Encyclopedia of Law.
Waiver of Appeal in relation to Immigration Courts
(information based on the DoJ Manual)
Effect of appeal waiver
If the opportunity to appeal is knowingly and voluntarily waived, the decision of the Immigration Judge becomes final. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.39. If a party waives appeal at the conclusion of proceedings before the Immigration Judge, that party generally may not file an appeal thereafter. See (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. § 1003.3(a)(1), Matter of Shih, 20 I&N Dec. 697 (BIA 1993). See (in this American law platform, in relation to immigration courts and judges) also 8 C.F.R. § 1003.1(d)(2)(i)(G).
Challenging a waiver of appeal
Generally, a party who waives appeal cannot retract, withdraw, or otherwise undo that waiver. If a party wishes to challenge the validity of his or her waiver of appeal, the party may do so in one of two ways: either in a timely motion filed with the Immigration Judge that explains why the appeal waiver was not valid or in an appeal filed directly with the Board of Immigration Appeals that explains why the appeal waiver was not valid. Matter of Patino, 23 I&N Dec. 74 (BIA 2001). Once an appeal is filed, jurisdiction vests with the Board, and the motion can no longer be ruled upon by the Immigration Judge. For detailed guidance on whether the Immigration Court or the Board has jurisdiction over a particular matter in which an appeal has been filed, parties should consult the Board of Immigration Appeals American Encyclopedia of Law.
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