Immigration Appeals & Federal Court Attorney

When an immigration case has stalled, a person is being held, or an agency or judge has said no, the answer is usually a specific procedural tool with its own forum and deadline, and choosing the right one quickly is most of the battle. This page summarizes the five litigation services in this column, matches common problems to the right remedy, and explains the deadlines, the courts and what we need from you to start.

Our services in this area

Immigration mandamus. A lawsuit in U.S. district court asking a judge to order USCIS, the State Department or a consulate to decide an application that has sat unreasonably long. We measure the delay against the factors courts apply, send a pre-suit demand where useful, and litigate when the agency does not act.
Habeas corpus. A petition under 28 U.S.C. 2241 asking a federal judge to decide whether immigration detention is lawful and to order release or a fair bond hearing if it is not. We file for people held without a bond hearing, denied bond, or detained for months after a final order.
BIA appeals and motions. Appeals to the Board of Immigration Appeals from immigration judge decisions, motions to reopen and reconsider, appeals of USCIS denials to the Administrative Appeals Office, and petitions for review in the federal courts of appeals.
Immigration litigation. Suits under the Administrative Procedure Act to challenge denials, revocations and unlawful agency policies, coordinated with the underlying petition, waiver or court proceeding so that one does not undermine the other.
FOIA requests. Requests to USCIS, EOIR, CBP, ICE, the State Department and the FBI for your immigration file, court record and entry records, read with a lawyer's eye, with appeals of redactions and suits when an agency does not respond.

Which remedy fits your problem

Your case is pending well past the posted processing time. A mandamus action, usually pleaded with a claim for unreasonable delay under the Administrative Procedure Act, asks the district court to set a deadline for a decision. Green card, naturalization, asylum, work permit and consular visa cases can all qualify.
You or a family member are detained without a bond hearing, or have been held too long. A habeas corpus petition is the remedy, filed in the district where the person is held and often paired with a bond request and a bond appeal to the Board.
An immigration judge ruled against you. Appeal to the Board of Immigration Appeals or, on new facts or a clear error, move to reopen or reconsider. If the Board rules against you, a petition for review goes to the court of appeals for the circuit where the judge sat.
USCIS denied your petition or application. Options are a motion to reopen or reconsider with the deciding office, an appeal to the Administrative Appeals Office on Form I-290B, or, where the denial rests on a legal error, a lawsuit under the Administrative Procedure Act. The denial notice states which options apply.
You are not sure what the government has on file. Start with a FOIA request. The results often decide the strategy for everything else.

Deadlines

Deadlines here are short and mostly unforgiving. Most appeals, including appeals to the Board, appeals to the Administrative Appeals Office and petitions for review, must be filed within 30 days of the decision, and the Board counts receipt, not mailing. Motions to reconsider are generally due within 30 days and motions to reopen within 90 days of the final order, with exceptions for in absentia orders, changed country conditions, joint motions and ineffective assistance by prior counsel. Mandamus, habeas and FOIA have no comparable deadline, but delay weakens each. After an adverse decision, count the days from its date and call us immediately.

The courts where our clients appear

Federal cases are filed where venue lies: usually where you live, where the agency acted, or, for habeas, where the person is held. Our clients most often appear in the United States District Courts for the Eastern District of Virginia, the District of Maryland, the Southern and Eastern Districts of New York, the District of Minnesota and the District of Columbia, and on petitions for review in the Fourth, Second, Eighth and D.C. Circuits.

What we need from you

Bring every receipt notice, the decision or denial with its envelope, any Notice to Appear, hearing notice or bond order, and your A-number. For delay cases, add your inquiries to the agency and any Ombudsman or congressional case numbers. For detention cases, the family should gather the detainee's identity documents, the facility name and proof of community ties. For appeals, the full file from prior counsel lets us assess the issues before the deadline runs. Where documents are missing, a FOIA request fills the gaps.

Realistic expectations

Each tool has limits, and we explain them before you commit. Mandamus produces a decision, which can be a denial if the underlying case has a real problem, so we review the merits first. Habeas addresses custody, not the removal case itself. A timely appeal to the Board stays removal automatically, but a petition for review, a motion to reopen outside the in absentia context, a mandamus action and a habeas petition do not, so a separate stay request is filed wherever removal is a risk. Appellate and APA review are confined to the existing record and the issues already raised, and courts generally cannot review decisions the statute leaves to agency discretion. Where the government's position was not substantially justified, fees may be recoverable under the Equal Access to Justice Act.

Why Capitol Law Partners

Cagatay Ersoy, founder and managing partner of Capitol Law Partners, is a graduate of Columbia Law School who combines immigration practice with federal litigation, so the lawyer who knows your underlying case drafts the complaint, the habeas petition or the appellate brief. Our attorneys and staff work in English, Turkish, Spanish, Portuguese and French. We serve clients from our offices in Washington, DC, Herndon, Virginia, New York and Minneapolis, as part of our wider immigration law practice.

Learn more

Talk to an immigration appeals and federal court attorney

Send us the decision, the receipt notices and your A-number, and we will tell you which remedy fits, what the deadline is and what it would take to proceed. Schedule a consultation or call +1 (202) 440-2272.

Frequently Asked Questions

What is the difference between a mandamus action and an APA unreasonable-delay claim?

Both are filed in U.S. district court and ask the judge to order the agency to decide. Mandamus requires a clear duty to act that the agency has not performed; the Administrative Procedure Act lets the court compel agency action unlawfully withheld or unreasonably delayed. Courts analyze the two under the same factors, and we plead them together. Neither one tells the agency how to decide; they set a deadline for a decision.

How long does my case have to be delayed before I can sue?

There is no fixed waiting period. Courts weigh whether the agency has a rule of reason for its timing, whether Congress set a timetable, the harm to health and welfare, the effect on other applicants, the interests at stake and any improper conduct by the agency. A case that has waited well beyond the processing time the agency publishes for that form and office is a candidate, and serious harm from the delay strengthens the claim.

Will suing the government make the agency deny my case?

A court order requires a decision, not a denial, and agencies decide cases that are the subject of lawsuits in the ordinary course. The real risk lies in the underlying application: if it has a genuine weakness, forcing a decision can produce a denial sooner than waiting would have. That is why we review the merits of the application before filing and tell you plainly if litigation is the wrong tool.

What are the deadlines after an immigration judge rules against me?

A Notice of Appeal must reach the Board of Immigration Appeals within 30 calendar days of the decision, with no extension. A motion to reconsider is due within 30 days and a motion to reopen within 90 days of the final order, subject to limited exceptions. If the Board dismisses the appeal, a petition for review must be filed in the federal court of appeals within 30 days of the Board's decision.

Can I be deported while my appeal or lawsuit is pending?

A timely appeal to the Board of Immigration Appeals stays removal automatically, as does a motion to rescind an in absentia order. A petition for review, a motion to reopen in other situations, a mandamus action and a habeas petition do not stop removal by themselves, so we file a separate motion for a stay with the court or the agency whenever removal is a realistic risk.

Which court will hear my federal case?

A mandamus or APA suit is filed in a district court with proper venue, usually where you live or where the agency acted. A habeas petition is filed in the district where the person is held. A petition for review goes to the court of appeals for the circuit where the immigration judge completed the case. Our clients most often appear in the federal courts of Virginia, Maryland, New York, Minnesota and the District of Columbia.

Should I file a FOIA request before doing anything else?

Often, yes. Your USCIS file, your immigration court record and your CBP entry records show what the government believes about your history, including prior applications, statements at the border and old orders you may not know about. The request is a routine records request handled by the agency's FOIA office, and USCIS gives faster handling to people with a scheduled court hearing. Read carefully, the results shape the strategy for every other remedy.

Do I need to live near one of your offices?

No. Appeals to the Board of Immigration Appeals and the Administrative Appeals Office, motions to reopen and FOIA requests are paper filings that we handle for clients anywhere. Federal lawsuits must be filed in a court with proper venue; we regularly appear in the district courts of Virginia, Maryland, New York, Minnesota and the District of Columbia and in the Fourth, Second, Eighth and D.C. Circuits, and can seek admission in other federal courts where a case requires it.