Introduction: An Immigration Case Is Not Always Lost on the Merits

An immigration case is not necessarily lost simply because an immigration judge denies asylum, withholding of removal, or another form of relief.

Likewise, an unfavorable decision by the Board of Immigration Appeals (BIA) does not always mean that all available legal remedies have been exhausted.

In appropriate circumstances, a noncitizen may challenge a final removal order through a petition for review before a United States Court of Appeals.

However, succeeding in federal appellate litigation requires understanding an essential distinction: the difference between substantive law and procedural law.

Substantive law determines whether an applicant qualifies for immigration relief. Procedural law establishes the rules the government must follow when deciding that question.

This distinction has become increasingly important.

Unfortunately, substantive immigration law has become increasingly unfavorable to many applicants. Recent precedential decisions issued by the BIA and the Attorney General have narrowed certain avenues of relief, displaced previously accepted interpretations, and changed how immigration judges adjudicate claims.

Immigration judges are generally required to follow binding administrative precedents, even when those decisions significantly restrict the legal arguments available to asylum applicants.

At the same time, immigration judges retain substantial authority over evidentiary rulings, hearing schedules, continuances, and credibility determinations.

These decisions can profoundly affect the outcome of a case.

Yet judicial authority is not unlimited.

An immigration judge may deny asylum under controlling substantive law. But the judge must still comply with applicable procedural requirements, respect the statutory right to counsel, provide a fundamentally fair hearing, and exercise discretion within lawful boundaries.

When these requirements are violated, procedural errors may provide grounds for relief before a federal appellate court.

Sometimes, the strongest appellate argument is not that the immigration judge should have granted asylum. It is that the judge reached the decision through a legally defective process.

This article examines the relationship between substantive and procedural immigration law, the difficulty of challenging adverse credibility determinations, and the importance of due process and abuse-of-discretion arguments in federal immigration appeals, particularly before the United States Court of Appeals for the Ninth Circuit.

1. Substantive Immigration Law: What the Applicant Must Prove

Substantive immigration law establishes the legal requirements governing eligibility for immigration benefits and relief from removal.

For example, an asylum applicant generally must demonstrate past persecution or a well-founded fear of future persecution on account of a protected ground under the Immigration and Nationality Act.

The protected grounds include race, religion, nationality, political opinion, and membership in a particular social group.

Other forms of protection, including withholding of removal and protection under the Convention Against Torture, have distinct requirements and burdens of proof.

During removal proceedings, an immigration judge must evaluate the evidence and determine whether the applicant satisfies the applicable legal requirements.

The judge may consider witness testimony, documentary evidence, country conditions, corroborating materials, and credibility.

If the applicant fails to establish eligibility, the judge may deny relief.

An appeal challenging that determination may involve questions of law, factual findings, or both.

However, factual challenges face an important limitation.

The Substantial Evidence Standard

Federal appellate courts generally review agency factual findings under the substantial evidence standard.

Under 8 U.S.C. § 1252(b)(4)(B), administrative findings of fact are conclusive unless the evidence would compel a reasonable adjudicator to reach a contrary conclusion.

This is a highly deferential standard.

A federal appellate court does not ordinarily reconsider the evidence as though it were conducting a new asylum hearing.

Even if the record could reasonably support another factual conclusion, the court generally cannot overturn the agency’s finding unless the applicable standard for reversal is satisfied.

For example, an applicant may argue that the immigration judge should have credited certain testimony or assigned greater weight to documentary evidence.

But merely disagreeing with how the judge evaluated the record does not necessarily establish reversible error.

The fact that another judge might have reached a different conclusion does not automatically make the original decision unlawful.

This is one reason substantive challenges based primarily on factual disagreement can be difficult to win in federal court.

2. Immigration Judges Must Follow Increasingly Restrictive BIA Precedents

One of the most significant challenges in modern immigration litigation is the binding nature of administrative precedent.

Under 8 C.F.R. § 1003.1(g), published precedential decisions of the BIA and Attorney General are binding on immigration judges, subject to applicable controlling law.

An immigration judge generally cannot simply disregard a binding BIA decision because the judge believes the decision is excessively restrictive or produces an unfair result.

This creates an increasingly difficult environment for individuals seeking asylum and other forms of protection.

Recent administrative precedents have narrowed certain legal interpretations, changed previously accepted approaches, and limited some avenues of relief.

In certain areas, arguments that immigration attorneys relied upon for years have been substantially restricted or displaced by new precedent.

For applicants, these developments can have serious consequences.

An asylum claim that once had a viable legal foundation may become considerably more difficult under a subsequent administrative interpretation.

An immigration judge may find the applicant’s testimony sympathetic and still conclude that controlling precedent requires denial.

The judge is not necessarily committing an error by applying unfavorable but binding law.

The problem may instead lie in the interpretation of substantive immigration law itself.

The Impact of Matter of H-A-A-V-

A significant example is Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025).

In that decision, the BIA recognized that an immigration judge may pretermit applications for asylum, withholding of removal, or protection under the Convention Against Torture without conducting a full evidentiary hearing when the applicant’s factual allegations, viewed in the light most favorable to the applicant, do not establish prima facie eligibility for protection.

This has important implications for asylum litigation.

Traditionally, immigration attorneys often relied on an individual merits hearing to develop testimony, explain relevant circumstances, examine witnesses, and present evidence supporting the applicant’s claim.

Under Matter of H-A-A-V-, an immigration judge may determine that an application is legally insufficient even if its factual allegations are accepted as true.

Consequently, some applicants may be denied relief without the full evidentiary hearing they had anticipated.

The BIA also addressed the relationship between this approach and earlier precedent, including Matter of Fefe, 20 I&N Dec. 116 (BIA 1989).

The decision illustrates how a new administrative interpretation can significantly change litigation strategy.

However, pretermission is not an unrestricted power.

A legally insufficient application must be distinguished from a case involving genuine factual disputes or material evidence that requires proper consideration.

An immigration judge cannot invoke an unfavorable precedent as a general excuse to disregard applicable procedural protections.

New BIA Decisions Can Displace Earlier Administrative Rules

Another illustration is Matter of S-S-F-M-, 29 I&N Dec. 207 (A.G. 2025), which restored earlier restrictive interpretations concerning certain asylum claims and overruled the intervening Attorney General precedent.

Developments of this kind can change the legal landscape quickly.

Attorneys must continuously reassess whether prior administrative interpretations remain controlling.

But an important distinction must be maintained.

Although an administrative precedent may supersede earlier agency precedent, it does not automatically override federal statutes, constitutional protections, Supreme Court decisions, or controlling precedent from the appropriate federal circuit.

Immigration judges are bound by applicable BIA precedent. Federal appellate courts retain independent authority to determine whether agency action complies with federal law and the Constitution.

That distinction is one reason federal judicial review remains especially important.

3. Adverse Credibility Determinations: One of the Greatest Obstacles on Appeal

Perhaps the most damaging finding an immigration judge can make in an asylum proceeding is an adverse credibility determination.

Asylum applicants frequently rely on personal testimony to establish persecution, political activities, threats, detention, or other events that occurred in their countries of origin.

In many cases, obtaining independent documentary evidence is difficult.

Persecution may have occurred without witnesses, official records may be unavailable, or the applicant may have fled the country without an opportunity to preserve documents.

As a result, the applicant’s testimony can be central to the claim.

If an immigration judge finds the applicant not credible, that finding can substantially undermine the case.

The judge may discount important testimony and conclude that the remaining evidence is insufficient to establish eligibility for protection.

Why Credibility Findings Are Difficult to Overturn

Under the REAL ID Act framework, immigration judges may evaluate credibility based on the totality of the circumstances and relevant factors, including inconsistencies, inaccuracies, omissions, demeanor, and the relationship between testimony and other evidence.

Subject to the governing statute and case law, an inconsistency need not always concern the central element of an asylum claim to be relevant to credibility.

On appeal, adverse credibility determinations are generally reviewed for substantial evidence.

This means the petitioner faces the difficult task of demonstrating that the record compels a contrary conclusion.

The Ninth Circuit addressed the totality-of-the-circumstances approach in Alam v. Garland, 11 F.4th 1133 (9th Cir. 2021).

In that decision, the en banc court rejected its earlier single-factor rule and emphasized that credibility determinations must be assessed under the statutory totality-of-the-circumstances framework.

An adverse credibility finding is therefore not necessarily invalid simply because one of several supporting reasons is flawed.

The reviewing court must examine the agency’s reasoning and the record under the applicable legal standard.

This makes credibility challenges particularly demanding.

When Credibility Findings May Be Challenged

An adverse credibility determination is not immune from judicial review.

An attorney may challenge findings based on material mischaracterizations of the record, impermissible speculation, legally defective reasoning, or conclusions unsupported by substantial evidence.

But there is another important situation.

An adverse credibility finding may be connected to a separate procedural violation.

For example, an immigration judge may improperly prevent an applicant from explaining an alleged inconsistency.

The judge may restrict material testimony, exclude corroborating evidence without complying with applicable law, or deny a continuance needed to obtain important evidence.

In these circumstances, the appellate argument may extend beyond disagreement with the credibility determination itself.

Counsel may have grounds to challenge the procedures that contributed to that determination.

The distinction is essential.

An adverse credibility finding is ordinarily reviewed for substantial evidence—not abuse of discretion. However, an independently improper procedural ruling that contributed to the finding may be subject to abuse-of-discretion review or constitutional analysis.

This is why attorneys should examine not only the final credibility finding but also how the immigration judge reached it.

4. Procedural Law: The Government Must Follow Its Own Rules

Procedural law governs how immigration proceedings must be conducted.

These requirements arise from the Fifth Amendment, the Immigration and Nationality Act, federal regulations, and applicable judicial precedent.

Under 8 U.S.C. § 1229a(b)(4), individuals in removal proceedings possess important procedural protections.

These include the privilege of representation by authorized counsel at no expense to the government, a reasonable opportunity to examine evidence, a reasonable opportunity to present evidence, and the ability to cross-examine government witnesses, subject to statutory limitations.

The statute also requires a complete record of testimony and evidence.

These safeguards are not merely technical formalities.

They protect individuals from arbitrary government decision-making.

An immigration judge may ultimately conclude that an asylum claim is legally insufficient.

But that conclusion must be reached through procedures consistent with the law.

For example, an immigration judge has authority to control the presentation of evidence. Nevertheless, that authority cannot be exercised in a manner that unlawfully prevents an applicant from presenting material aspects of the claim.

Similarly, immigration judges have discretion to establish deadlines and manage proceedings. But their discretionary decisions remain subject to applicable regulations and judicial review.

The government must follow the legal rules governing its decisions, even when the underlying substantive claim is weak.

5. Constitutional Due Process: The Right to a Full and Fair Hearing

The Fifth Amendment prohibits the federal government from depriving a person of life, liberty, or property without due process of law.

This protection extends to noncitizens in removal proceedings.

Although immigration proceedings are civil rather than criminal, they must satisfy applicable constitutional requirements.

Due process generally requires notice and a meaningful opportunity to be heard.

The opportunity must be meaningful in light of the circumstances.

Simply allowing an applicant to appear physically before an immigration judge does not necessarily establish that the proceedings were fundamentally fair.

For example, constitutional concerns may arise when an immigration judge improperly restricts testimony, prevents the applicant from presenting material evidence, or conducts proceedings in a manner that deprives the applicant of a reasonable opportunity to present the case.

The analysis depends on the nature of the challenged conduct and its consequences.

Colmenar v. INS

In Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000), the Ninth Circuit examined an asylum hearing in which the immigration judge improperly restricted the applicant’s ability to develop testimony.

The court concluded that the proceedings were fundamentally unfair and that the challenged conduct prejudiced the applicant.

The Ninth Circuit granted the petition for review and remanded for further proceedings.

This decision illustrates an important principle.

An immigration judge possesses authority to manage hearings, but that authority does not include the power to deprive an applicant of a meaningful opportunity to present the case.

The constitutional guarantee of due process remains applicable regardless of the immigration judge’s assessment of the applicant’s substantive eligibility.

6. Due Process Violations Generally Require Prejudice

One of the most important principles in immigration appellate litigation is the requirement of prejudice.

Not every procedural error constitutes a reversible constitutional violation.

In the Ninth Circuit, an ordinary procedural due process claim generally requires the petitioner to demonstrate two elements.

First, the proceedings were fundamentally unfair, preventing the applicant from reasonably presenting the case.

Second, the procedural violation caused prejudice.

Prejudice means that the error may have affected the outcome of the proceedings.

The applicant generally does not need to prove that the claim would certainly have succeeded if the violation had not occurred.

However, counsel must explain why the violation mattered.

Example: Exclusion of Material Testimony

Suppose an immigration judge prevents an asylum applicant from testifying about an important incident of political persecution.

The attorney believes the excluded testimony would have established the seriousness of the persecution and its connection to a protected ground.

A due process challenge should identify the specific testimony that was excluded, explain its relevance, and demonstrate how its exclusion may have affected the result.

Simply stating that the immigration judge acted unfairly would not be enough.

The attorney must establish the required relationship between the procedural violation and potential harm.

Example: Improperly Advanced Proceedings

Consider another situation.

An immigration judge unexpectedly advances an individual merits hearing, denies a continuance, and requires the applicant to proceed without evidence or witnesses that could reasonably have been obtained with appropriate preparation time.

The mere fact that a hearing was advanced does not automatically establish a constitutional violation.

The relevant inquiry includes the notice provided, the applicable procedural rules, the circumstances of the continuance request, and the actual effect on the applicant’s ability to present the case.

If the judge’s conduct deprived the applicant of a meaningful opportunity to submit material evidence, counsel may have a due process argument.

The attorney must ordinarily establish prejudice.

The Practical Importance of Prejudice

In Colmenar, the Ninth Circuit recognized that a petitioner need not establish certainty of a different result.

The relevant question is whether the challenged conduct potentially affected the outcome.

This standard is important because procedural violations may prevent evidence from becoming part of the record in the first place.

Nevertheless, the claimed effect cannot be merely speculative.

For an ordinary constitutional due process challenge, identifying a procedural error is only the beginning. Counsel must also establish the required prejudice.

7. The Right to Counsel: An Important Exception

The statutory right to counsel deserves separate consideration.

Under 8 U.S.C. § 1362, a noncitizen in covered immigration proceedings has the privilege of representation by authorized counsel of their choosing, at no expense to the government.

This generally does not entitle the individual to government-appointed counsel.

Nevertheless, immigration judges must respect the statutory right to representation.

Montes-Lopez v. Holder

In Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), the Ninth Circuit held that an actual denial of the statutory right to counsel does not require a separate showing of prejudice.

This differs from the ordinary approach to procedural due process claims.

The court recognized that the absence of counsel can fundamentally affect the entire proceeding.

An attorney may identify defenses, develop evidence, present legal arguments, challenge testimony, and make strategic decisions that an unrepresented individual may not understand.

Reconstructing what counsel would have accomplished can be extremely difficult.

Accordingly, under the rule established in Montes-Lopez, a petitioner who establishes an actual denial of the statutory right to counsel need not separately demonstrate that the outcome would have been different.

It is important, however, to distinguish a denial of counsel from a claim of ineffective assistance of counsel.

The latter generally involves a different legal framework and a prejudice requirement.

Nor does every denial of a continuance necessarily constitute a denial of the statutory right to counsel.

The precise nature of the violation matters.

Correctly identifying the legal right at issue can determine whether prejudice must be established.

8. Abuse of Discretion: Immigration Judges Have Limits

Immigration judges exercise substantial discretion in conducting proceedings.

They manage hearing calendars, establish filing deadlines, consider requests for continuances, and decide various procedural motions.

But discretion is not unlimited.

A decision may constitute an abuse of discretion when the adjudicator applies an incorrect legal standard, disregards legally required considerations, relies on improper factors, or reaches a conclusion that is arbitrary or irrational under the applicable framework.

The federal appellate court does not simply replace the immigration judge’s judgment with its own.

Instead, it examines whether the decision was within the legally permissible range of discretion.

Continuance Denials

A common example involves the denial of a continuance.

Under 8 C.F.R. § 1003.29, an immigration judge may grant a continuance for good cause shown.

The judge must exercise this authority consistently with the governing law.

Depending on the situation, relevant considerations may include the importance of the anticipated evidence, the applicant’s diligence, the number of prior continuances, and the inconvenience to the court.

A judge cannot necessarily justify denial solely by referring to an overloaded calendar or a general desire to complete proceedings quickly.

Pleitez-Lopez v. Barr

In Pleitez-Lopez v. Barr, 935 F.3d 716 (9th Cir. 2019), the Ninth Circuit examined the denial of a continuance.

The court concluded that the agency abused its discretion because it failed to properly analyze the relevant factors and evaluated the applicant’s conduct in an arbitrary or irrational manner.

The decision demonstrates that discretionary rulings must be grounded in the applicable legal framework.

Arizmendi-Medina v. Garland

Another important decision is Arizmendi-Medina v. Garland, 69 F.4th 1043 (9th Cir. 2023).

The case involved an asylum applicant whose application was rejected under circumstances involving an ambiguous filing deadline and a denied continuance request.

The Ninth Circuit concluded that the immigration judge abused discretion in denying the continuance and that the proceedings deprived the applicant of a full and fair opportunity to present his case.

The court granted the petition for review and remanded for further proceedings.

Importantly, the abuse-of-discretion analysis formed part of the court’s evaluation of the applicant’s due process claim.

The case illustrates how an improper discretionary ruling may also contribute to a constitutional violation.

The authority to control an immigration courtroom does not give a judge unlimited power to disregard legal standards or procedural fairness.

9. Abuse of Discretion Does Not Have the Same Prejudice Requirement as Due Process

An important distinction exists between a stand-alone abuse-of-discretion challenge and a constitutional due process claim.

For an ordinary due process claim, the petitioner generally must demonstrate fundamental unfairness and prejudice.

For a stand-alone abuse-of-discretion challenge, constitutional prejudice is not ordinarily an independent element of the legal standard.

Instead, the appellate court examines whether the agency exercised discretion lawfully.

For example, a petitioner may argue that the immigration judge denied a continuance by applying the wrong standard, failing to consider mandatory factors, or relying on legally impermissible considerations.

Such an argument is fundamentally different from alleging that the denial violated the Fifth Amendment.

Does This Mean Prejudice Is Irrelevant?

No.

Although abuse-of-discretion review does not ordinarily impose the same independent constitutional prejudice requirement, the practical consequences of the error may remain important.

Harmless-error principles may affect the availability of relief.

Moreover, the significance of the anticipated evidence, the need for additional preparation, and the effect of the challenged ruling may be relevant to whether the exercise of discretion was legally permissible.

Thus, an attorney should not argue that every abuse of discretion automatically requires reversal.

Instead, counsel should establish the improper exercise of discretion and explain why relief is warranted under the governing law.

Two Separate Legal Theories

Consider an immigration judge who improperly denies a continuance.

Counsel may argue that the judge abused discretion by failing to apply the correct legal framework.

Separately, counsel may argue that the denial rendered the proceedings fundamentally unfair and caused prejudice, thereby violating due process.

The two arguments may arise from the same events.

But they are not identical.

The first challenges the legal validity of the discretionary ruling.

The second challenges the constitutional fairness of the proceeding and ordinarily requires prejudice.

Abuse of discretion and constitutional due process are distinct grounds for appellate review. Understanding their different requirements can be critical to effective advocacy.

10. Why Procedural Arguments May Be Stronger Than Factual Challenges

The distinction between substantive law and procedural law becomes particularly important when deciding how to challenge an unfavorable immigration decision.

Suppose an immigration judge denies asylum after making an adverse credibility determination.

The attorney may argue that the applicant was truthful, that the inconsistencies were minor, and that the evidence supported the claim.

But the federal appellate court must apply the substantial evidence standard to the factual findings.

That is a difficult standard to overcome.

Now consider a different situation.

During the same proceedings, the immigration judge improperly prevents the applicant from explaining alleged inconsistencies or denies a continuance without considering the relevant legal factors.

Those rulings may present separate procedural or discretionary issues.

Instead of asking the federal appellate court simply to reconsider the factual record, counsel can challenge whether the agency complied with the rules governing the proceedings.

Depending on the circumstances, this may create a more viable appellate argument.

The attorney may challenge the credibility determination under substantial evidence review while separately presenting abuse-of-discretion or due process arguments.

The key is identifying the correct legal theory.

A factual disagreement cannot be transformed into a constitutional claim simply by calling it a due process violation.

Likewise, a procedural mistake does not automatically establish an abuse of discretion.

Nevertheless, independently reviewable legal errors can provide important avenues for appellate relief.

11. Different Legal Errors Require Different Standards of Review

Federal appellate litigation requires careful attention to standards of review.

The applicable standard may significantly affect the likelihood of obtaining relief.

Substantial Evidence

Factual findings, including adverse credibility determinations, are generally reviewed for substantial evidence.

The petitioner ordinarily must demonstrate that the record compels a contrary factual conclusion.

De Novo Review

Questions of law and constitutional due process issues generally receive de novo review.

The federal appellate court independently evaluates the legal question, subject to applicable statutory limitations and legal principles.

Abuse of Discretion

Many discretionary procedural decisions, including continuance determinations, are reviewed for abuse of discretion.

The court asks whether the agency acted within the boundaries permitted by law.

These standards are not interchangeable.

An attorney must identify which agency ruling is being challenged and apply the corresponding standard.

A brief that fails to distinguish factual errors from legal and procedural errors risks weakening otherwise valid arguments.

12. The BIA and Federal Circuit Courts Have Different Roles

The BIA is an administrative appellate body within the Department of Justice.

It reviews decisions issued by immigration judges and applies governing statutes, regulations, and administrative precedent.

The United States Courts of Appeals are independent Article III federal courts.

Their role in immigration cases includes reviewing final agency decisions under the statutory framework established by Congress.

Under 8 U.S.C. § 1252, eligible final removal orders may be challenged through petitions for review.

The appropriate circuit generally depends on where the immigration judge completed the proceedings.

For example, proceedings completed in California ordinarily fall within the geographic jurisdiction of the Ninth Circuit.

Judicial Review of BIA Interpretations

The BIA does not have unlimited authority to interpret federal law.

In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court overruled the general Chevron deference doctrine and reaffirmed the courts’ independent responsibility to determine the meaning of statutes.

The precise framework applicable to an immigration question may still depend on statutory text, delegated discretion, and controlling precedent.

Nevertheless, an administrative agency cannot conclusively determine every disputed question of federal law merely by issuing a precedential decision.

A federal appellate court may conclude that the agency applied an incorrect legal standard, exceeded its lawful authority, or violated constitutional requirements.

This judicial oversight remains particularly important when administrative interpretations have become more restrictive.

13. Preserving Procedural Errors for Appeal

Effective appellate litigation begins before the immigration judge issues a final decision.

An attorney should identify and, when appropriate, preserve significant procedural errors as they occur.

Excluded Evidence

If an immigration judge excludes evidence, counsel should explain its relevance and importance.

Where appropriate, the attorney should make an offer of proof identifying what the evidence would establish.

This may later help demonstrate that the exclusion was legally improper and prejudicial.

Continuance Requests

When requesting a continuance, counsel should identify the specific justification for additional time.

The record should explain why the continuance is necessary, what evidence or preparation is anticipated, and how the applicant has acted diligently.

A general statement that more time would be helpful may be insufficient.

Objections During Hearings

If an immigration judge improperly restricts testimony or changes hearing procedures in a manner that affects protected rights, counsel should consider raising an appropriate objection.

The attorney should explain the legal basis for the objection and the consequences of the challenged action.

Administrative Exhaustion

Issues intended for federal judicial review should generally be appropriately presented to the BIA when exhaustion is required.

Under 8 U.S.C. § 1252(d)(1), a petitioner ordinarily must exhaust administrative remedies available as of right.

In Santos-Zacaria v. Garland, 598 U.S. 411 (2023), the Supreme Court clarified that this requirement is a mandatory claim-processing rule rather than a jurisdictional requirement.

The distinction matters, but attorneys should not assume that arguments can be raised for the first time in federal court without consequences.

Preservation and exhaustion remain essential considerations.

A potentially strong appellate argument can be lost if counsel fails to develop the record or properly present the issue.

14. Petitions for Review Before the United States Courts of Appeals

After the BIA issues a final removal decision, an individual may be eligible to seek judicial review through a petition for review.

Under 8 U.S.C. § 1252(b)(1), a petition generally must be filed within 30 days of the final order of removal.

The applicable deadline and any questions regarding finality or exceptions require careful analysis.

Federal appellate proceedings differ substantially from immigration court hearings.

The court generally reviews the administrative record, written briefs, and relevant legal authorities.

In some cases, the court schedules oral argument.

The Opening Brief

The opening brief is a central part of appellate advocacy.

Counsel must identify the questions presented, establish the court’s authority to review the decision, explain the procedural history, and develop each argument under the correct standard of review.

The attorney must demonstrate why the challenged agency action constitutes reversible error.

For a substantial evidence challenge, the argument must address the record and the deferential standard applicable to factual findings.

For an abuse-of-discretion claim, counsel must explain why the agency failed to exercise discretion within lawful limits.

For a due process claim, counsel generally must establish fundamental unfairness and prejudice.

Oral Argument

Some petitions are decided without oral argument.

When oral argument is scheduled, counsel may appear before a panel of federal appellate judges to answer questions and address disputed legal issues.

Judges may focus on the applicable standard of review, the nature of the claimed error, preservation, prejudice, or the proper remedy.

In cases involving procedural due process, an important question may be whether the challenged procedure could have affected the result.

An attorney must be prepared to identify exactly what the immigration judge did wrong and why the error warrants appellate relief.

A Petition for Review Does Not Automatically Stay Removal

Filing a petition for review does not automatically stop removal.

Under 8 U.S.C. § 1252(b)(3)(B), removal generally is not stayed merely because the petition was filed.

In appropriate circumstances, counsel may need to file a separate motion requesting a judicial stay of removal.

This distinction is particularly important in detained cases.

15. Winning a Federal Appeal Does Not Necessarily Mean Winning Asylum

A favorable decision from a federal appellate court does not necessarily mean that the applicant has been granted asylum, withholding of removal, or lawful permanent residence.

The court may instead conclude that the agency committed a legal error requiring further proceedings.

For example, the Ninth Circuit may grant a petition for review and remand because an immigration judge denied the applicant a full and fair hearing.

The applicant may then receive another opportunity to present evidence and testimony before the immigration court.

Likewise, the federal appellate court may require the agency to reconsider the case under the correct legal standard.

The ultimate outcome may remain uncertain.

An applicant may prevail in federal court but subsequently receive another unfavorable decision from the immigration agency.

Nevertheless, a successful petition for review can be extraordinarily significant.

It may restore an opportunity to present evidence, develop testimony, obtain appropriate representation, or receive adjudication under the correct legal standards.

For someone facing removal to a country where they fear persecution, that opportunity may be critical.

Winning a procedural appeal may mean winning the right to a lawful adjudication, rather than winning the underlying immigration benefit.

Clients should understand this distinction when evaluating appellate litigation.

16. Why Procedural Law Is Becoming Increasingly Important

The current immigration environment presents substantial challenges for applicants and their attorneys.

Restrictive administrative precedents can narrow substantive eligibility.

Adverse credibility determinations may be extremely difficult to overturn under substantial evidence review.

And immigration judges possess considerable authority to manage proceedings and make discretionary rulings.

These realities make procedural analysis increasingly important.

An attorney must consider not only whether the applicant qualifies for relief, but also whether the government followed the law in determining eligibility.

Did the immigration judge apply the correct legal standard?

Was the applicant given a meaningful opportunity to present the case?

Did the judge properly evaluate a continuance request?

Was material evidence unlawfully excluded?

Was the statutory right to counsel respected?

Did the judge’s conduct render the proceedings fundamentally unfair?

Was discretion exercised consistently with the governing law?

These questions may identify independently reviewable errors that are distinct from the merits of the asylum claim.

Of course, procedural litigation is not a substitute for substantive legal preparation.

A weak asylum claim does not automatically become viable because the attorney alleges a procedural violation.

Similarly, a procedural error that caused no legally relevant harm may not justify reversal.

Nevertheless, procedural protections serve an essential function.

They ensure that immigration adjudication remains subject to legal standards rather than unrestricted administrative authority.

When substantive law becomes increasingly restrictive, the importance of procedural safeguards does not diminish. It grows.

17. Federal Appellate Courts as a Safeguard Against Unlawful Administrative Action

Immigration judges and the BIA exercise substantial authority over decisions affecting individuals’ lives.

Their rulings may determine whether a person remains in the United States, is separated from family members, or is removed to a country where serious harm is feared.

Such authority must remain subject to law.

Federal appellate review helps ensure that immigration agencies comply with statutory requirements, constitutional protections, and controlling judicial precedent.

The reviewing court may examine whether the agency interpreted the law correctly, supported its factual findings under the applicable standard, exercised discretion lawfully, and respected protected procedural rights.

When the agency commits reversible error, the court may grant the petition for review and order an appropriate remedy.

This does not mean that federal courts are free to disregard immigration statutes or grant relief based solely on sympathy.

Their role is to enforce the law.

But enforcing the law includes ensuring that the government follows the procedural protections established by Congress and the Constitution.

A lawful immigration decision requires more than a legally permissible result.

It must also be reached through a legally permissible process.

Conclusion: Sometimes the Procedure Is the Appeal

Immigration law is becoming increasingly challenging for many individuals seeking protection from removal.

Recent administrative precedents have narrowed certain substantive legal arguments, altered established approaches, and changed the circumstances in which some applications may be adjudicated.

Immigration judges generally must follow binding BIA precedent.

Adverse credibility determinations remain difficult to challenge because federal courts give substantial deference to supported factual findings.

But restrictive substantive law does not eliminate procedural protections.

Immigration judges must still comply with the Constitution, federal statutes, regulations, and controlling judicial precedent.

They must respect the statutory right to counsel, provide fundamentally fair proceedings, and exercise discretion within lawful limits.

When these obligations are violated, federal appellate review may provide a remedy.

The distinction between due process and abuse of discretion is particularly important.

Ordinary due process claims generally require a showing of fundamental unfairness and prejudice.

Stand-alone abuse-of-discretion claims are governed by a different legal standard and do not ordinarily require constitutional prejudice as a separate element, although harmless-error considerations may remain relevant.

A denial of the statutory right to counsel may involve yet another rule.

For immigration attorneys, effective appellate advocacy therefore requires more than disagreement with the immigration judge’s conclusions.

It requires identifying the precise legal error, selecting the correct standard of review, preserving the issue, and presenting a persuasive argument for judicial relief.

When substantive immigration law becomes increasingly unfavorable, procedural law may become one of the most important safeguards available to applicants.

Sometimes, the decisive issue before a federal court of appeals is not whether the immigration judge should have granted asylum.

It is whether the judge followed the law in reaching the decision.

And sometimes, that distinction makes all the difference.

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Ernest Goodman
Law Offices of Ernest Goodman

This post discusses a publicly available court proceeding for informational purposes and does not constitute legal advice.