Detailed Table of Contents

28 Board of Immigration Appeals

An unsuccessful applicant may appeal to the Board of Immigration Appeals (BIA), an administrative body in Falls Church, Virginia, close to Washington, DC.  While a BIA appeal is pending, the final order of removal is stayed.

28.1 Notice of Appeal  

To appeal before the BIA, the applicant must file a Notice of Appeal and required fee ($110 as of this writing, see http://www.usdoj.gov/eoir/appealtypes.htm  for updates) with the Board of Immigration Appeals (“BIA”) so that is received within 30 days of the IJ’s decision.  This deadline is very strictly enforced.  A certificate of service must also be included with your Notice of Appeal, stating that service of the Notice was made on the Office of the Chief Counsel.  All correspondence to the BIA must include a certificate of service to the Office of the Chief Counsel.  It should also be sent by certified mail return receipt requested or via Federal Express or other overnight delivery service.

The Notice of Appeal (EOIR-26) http://www.usdoj.gov/eoir/eoirforms/2instru26.htm  is a relatively straightforward form, but the grounds of appeal must be stated sufficiently to avoid summary dismissal.  Even if the attorney does not intend to represent the applicant on appeal, she should consider assisting the applicant to fill out the Notice of Appeal.  At the time the Notice of Appeal must be submitted, there will generally be written opinion by the IJ which makes it very difficult for a new attorney on the case to file the form.  If the attorney does intend to represent the applicant on the BIA appeal, she must submit a new Notice of Appearance form, form EOIR-27 http://www.usdoj.gov/eoir/eoirforms/instru27.htm.  Filing the Notice of Appeal automatically stays the removal order until the final decision by the BIA.  
 
28.2 The Argument

BIA appeals are almost always done entirely on paper.  While it is possible to request oral argument, the BIA almost never grants it.  Several months (generally 6-18) after the Notice of Appeal has been filed, the attorney of record, or respondent if there is no attorney of record, will receive the transcript and record on appeal.  Once the attorney has received this, he has 21 days to submit a written brief.  He can request one adjournment for good cause which will give him an additional 21 days to file the brief. 

Under regulations that became effective on September 25, 2002, the BIA has limited fact-finding ability on appeal, which heightens the need for Immigration Judges to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law.¹   With the streamlining procedure which is now in place with BIA appeals, under which the majority of decision are affirmed without opinion by a single BIA member, it is important to fully understand the circumstances under which a three member panel is required and to argue zealously for a three member panel.

Information on writing BIA appeals is beyond the scope of this manual, but two excellent resources are the BIA Practice Manual which is put out by the BIA itself http://www.usdoj.gov/eoir/vll/qapracmanual/apptmtn4.htm  and the American Immigration Law Foundation’s practice advisory on BIA practice http://www.ailf.org/lac/lac_pa_091102.pdf.

^{1 See, also, Matter of S-H-, Int. Dec. 3478 (BIA 2002); Matter of Villanova-Gonzalez, 13 I. & N. Dec. 399 (BIA 1969) and Matter of Becerra-Miranda, 12 I. & N. Dec. 358 (BIA 1967, superseded.).}

This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.