Appealing an Immigration Court Decision to the BIA

Procedural overview of filing an appeal of an immigration removal order to the Board of Immigration Appeals (B.I.A.).

If you attended a merits hearing in immigration court, also known as the Executive Office for Immigration Review (EOIR), and the immigration judge (IJ) denied your case, you most likely have the right to file an appeal. An appeal means asking a higher authority to take a look at the transcripts and record of what happened and decide whether the judge's decision was a mistake.

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 (B.I.A.).

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

Where the Appeal Must Be Filed

You will not visit the B.I.A. 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. The address for filing your appeal is:

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

This address is the same whether you file by the U.S. Postal Service, courier, overnight delivery, or some other means.

Paperwork and Fees for Filing an Appeal to the B.I.A.

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 along with this form, but will have a chance even after it is filed to submit a brief, assuming you indicate on your appeal form that you want to do so.

It's an excellent idea to submit a brief, because this is where you, or more realistically, your lawyer, will lay out the arguments in your favor and the laws that back it up. Without this, the B.I.A. might be inclined to go along with the immigration judge's decision rather than taking a close look at your case.

The appeal must, in most situations, be submitted with the required fee. As of late 2021, this is $110. (See the exceptions in Section 3.4 of the policy manual.) You can either pay electronically at the EOIR's Payment Portal, or send a check or money order payable to "United States Department of Justice" and also containing the principal applicant's full name and alien registration number ("A number").

If you cannot afford the fee, you may seek a fee waiver, using Form EOIR-26A.

Your attorney or legal representative will also 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, just before you file the appeal, 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 then confirm that you did so within the "Proof of Service" portion of EOIR Form-26.

For more about the procedural requirements of filing an appeal, download the B.I.A.'s Practice Manual; or better yet, hire an attorney to deal with these complex requirements.

Timing of Filing Your Appeal

The appeal must not only be filed, but actually received by the B.I.A. 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. Late-filed appeals will simply not be accepted.

Take extra care, therefore, 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 Saturdays, 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 B.I.A. Receives Your Appeal Notice

Once your appeal is received, the B.I.A .will send you a receipt notice, usually within two weeks. If you don't hear from it within that time, contact the B.I.A. 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 30 days to file your opening brief. The opposing counsel will also be given 30 days, in which to file a reply. This period can be extended to 90 days if sufficient cause is shown.

After going through the submissions of both parties, the BIA will make a decision on your appeal. This can take months or years, however.

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 B.I.A. decision. This is automatic for standard appeals from removal cases.

(In other types of cases, however, such as motions to reopen, such a stay is not automatic; the person must take steps to ask for it.)

In any case, if you leave the U.S. before the B.I.A.'s decision, your appeal will be canceled.

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