Appealing an Immigration Court Decision to the BIA

If you attended an immigration hearing and the judge denied your case, the next step may be to appeal to the Board of Immigration Appeals (BIA).

If you attended a merits hearing in immigration court, otherwise known as the Executive Office for Immigration Review (EOIR), and the immigration judge denied your case, you most likely have the right to an appeal.

The EOIR is an agency within the Department of Justice, responsible for adjudicating immigration cases. Accordingly, the next stop in your case will also be within the Department of Justice, namely the Board of Immigration Appeals (BIA).

By the way, the U.S. government also has a right to appeal your case, even if the judge granted it. So you may find yourself arguing your case to the BIA despite wanting it to end with the judge's decision!

Where the Appeal is Filed

The appeal must be filed with the BIA, which is located in Falls Church, Virginia. You must choose the exact address depending on your means of mailing, as follows:

If sending by hand delivery, courier, same day delivery, overnight or express delivery (including U.S. Postal Service express mail), send your appeal package to:

Board of Immigration Appeals
Office of the Chief Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, VA 22041

If sending your appeal by U.S. Postal Service (except express mail), including priority mail, certified mail, registered mail, or return receipt requested mail, send your appeal package to:

Board of Immigration Appeals
Office of the Chief Clerk
Post Office Box 8530
Falls Church, VA 22041

You will not visit the BIA in person. This appeal is done in writing, with no hearings except in rare cases. The purpose is not to give you another chance at a full presentation of your case. Instead, it is for the Board to review the correctness of the decision made by the immigration judge, based on the existing court transcripts and record.

Paperwork and Fees for Filing Your Appeal

Appeals against orders of an immigration judge must be made on Form EOIR-26 Notice of Appeal from a Decision of an Immigration Judge. You may send supporting documents with the appeal, but will have a chance even after it is filed to submit a brief -- assuming you indicated on your appeal form that you wanted to submit a brief. It's a good idea to do so -- this is where you (or more realistically, your lawyer) lays out the arguments in your favor and the laws that back it up.

The appeal must be submitted with the required fee; which, as of mid-2012, was $110 by check or money order payable to "United States Department of Justice." If you cannot afford the fee, you may seek a fee waiver using Form EOIR-26A.

Your attorney or legal representative will submit Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeal, which basically states that he or she will be representing you during the process.

In addition, you must mail a copy of the appeal to the Assistant Chief Counsel of the U.S. Immigration and Customs Enforcement of the Department of Homeland Security and complete the Certificate of Service portion of EOIR Form-26 before you file the appeal (to assure the BIA that you complied with this part of your responsibilities).

Timing of Filing Your Appeal

The appeal must be not just filed, but actually received by the BIA within 30 days from the date of the judge's order. If you received the judge's order in writing rather than in open court, your appeal must be filed and received within 30 days from the date on which the decision was mailed to you.

When your appeal arrives at the BIA, they will date stamp it, and ignore any other dates -- even if you mailed it a week ahead of time and the courier was late. Late-filed appeals will simply not be accepted. That also means you'll need to take extra care in filling out the mailing label and other materials correctly, and using the correct amount of postage.

When calculating your 30-day deadline, you must count Saturday, Sundays, and other holidays. However, if the 30th day actually falls on a Saturday, Sunday, or federal holiday, then the deadline is extended to the first business day thereafter.

What Happens After the BIA Receives Your Appeal Notice

Once your appeal is received, the BIA will send you a receipt notice, usually within two weeks. If you don't hear from the BIA within that time, contact them to find out what happened.

Next, a briefing schedule will be set (if you said you would submit a brief). You will ordinarily be given thirty days to file your opening brief. The opposing counsel will also be given thirty days to file a reply. This period can be extended to ninety days if sufficient cause is shown. After going through the submissions of both parties -- which can take months or years -- the BIA will make a decision on your appeal.

Stay in the U.S. While Your Appeal Is Pending!

Even if the immigration judge ordered you deported, you have the right to stay in the U.S. while you await a BIA decision. In fact, if you leave the U.S., your appeal will be canceled.

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