Appealing an Immigration Judge Decision to the BIA
Appealing an Immigration Judge Decision to the BIA
If an immigration judge denies your case or orders removal, you may have the right to appeal to the Board of Immigration Appeals (BIA). Appeals are complex, deadline-driven, and focused on legal errors, not new evidence.
Legal Background
The BIA is the highest administrative body for interpreting immigration law. It reviews decisions made by immigration judges and some DHS determinations. Most appeals must be filed within 30 days of the judge's decision.
Key Deadlines and Forms
- Form EOIR-26: This is the notice of appeal to the BIA.
- 30-day deadline: The appeal must be received by the BIA within 30 days of the decision.
- Filing fee or fee waiver: A fee is required unless a waiver is granted.
Missing the deadline usually ends the right to appeal.
What the BIA Reviews
The BIA generally reviews:
- Whether the judge applied the law correctly
- Whether the judge made clearly erroneous factual findings
- Whether discretion was abused in the decision
The BIA does not typically consider new evidence. If new evidence exists, a motion to reopen may be more appropriate.
The Appeal Process
- File Form EOIR-26. Submit the form, fee, and proof of service on DHS.
- Wait for the briefing schedule. The BIA will set a deadline for a written legal brief.
- Submit the brief. This is the core of the appeal and should address legal errors with citations.
- Receive a decision. The BIA may affirm, reverse, or remand the case to the judge.
Common Pitfalls
- Missing the filing deadline. Late appeals are almost always rejected.
- Using the appeal to add new evidence. The BIA generally does not accept new facts.
- Weak legal arguments. Appeals must identify legal or factual errors, not just disagreement with the outcome.
Practical Tips
- Request the transcript. The record is essential for a strong appeal.
- Be precise. Cite the specific errors and explain how they affected the outcome.
- Do not ignore removal risks. A timely appeal generally pauses removal, but not all decisions are stayed.
When to Seek Legal Help
Appeals require legal research, careful writing, and strict compliance with BIA rules. An attorney can evaluate whether you have a viable appeal and help you meet all deadlines.
If you are considering a BIA appeal, schedule a consultation to review your options.
This post provides general information and is not legal advice. Laws can change, and your facts matter.
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