Board of Immigration Appeals (BIA) Procedures
Critical 30-Day Deadline
About the Board of Immigration Appeals
The Board of Immigration Appeals (BIA) is the highest administrative tribunal for interpreting and applying immigration laws. The BIA reviews appeals from immigration court decisions and provides authoritative interpretations of immigration statutes and regulations.
The BIA consists of up to 21 Board Members appointed by the Attorney General. Most cases are decided by a single Board Member, but complex cases may be reviewed by a three-member panel or the full Board.
Appealable Decisions
Can Appeal to BIA
- Final orders of removal issued by immigration judges
- Denials of applications for relief (asylum, cancellation, adjustment)
- Bond determinations and custody decisions
- Denials of motions to reopen or reconsider
- Voluntary departure determinations and extensions
- Competency determinations in some cases
- Disciplinary decisions against immigration attorneys
Cannot Appeal to BIA
- Interlocutory decisions and scheduling orders
- Decisions to grant relief (DHS can appeal these)
- Administrative closure decisions (generally)
- Discovery and evidence rulings during proceedings
- Interpreter and language determinations
- Most continuance and calendar management decisions
Appeal Filing Requirements
To file a valid BIA appeal, you must:
- Form EOIR-26 filed within 30 calendar days of immigration judge's decision
- $520 filing fee (increased under H.R. 1 - 2025) or fee waiver request
- Written brief filed within 21 days after EOIR-26 (unless extension granted)
- Proper service on DHS counsel and immigration court
- Complete record of proceedings from immigration court
- Standing to appeal (party to the proceedings or affected by decision)
2025 Fee Increase
Appellate Brief Requirements
Your appellate brief must include:
- Statement of jurisdiction and appealable decision
- Issues presented for review with specific legal questions
- Statement of facts based on record evidence
- Arguments section with legal analysis and citations
- Conclusion requesting specific relief from BIA
- Certificate of service showing service on opposing counsel
- Record citations supporting all factual assertions
Brief Filing Deadlines
- Standard Deadline: 21 days after filing EOIR-26
- Extension Available: Up to 90 days total with good cause shown
- Pro Se Exception: 90-day automatic extension for self-represented appellants
BIA Appeal Process
File EOIR-26 Notice of Appeal
Submit Form EOIR-26 with filing fee within 30 days of immigration judge decision
Serve DHS Counsel
Provide copy of EOIR-26 to DHS counsel and file certificate of service
Record Transmission
Immigration court transmits complete case record to BIA within 30 days
File Appellate Brief
Submit written brief within 21 days after EOIR-26 filing (extensions possible)
DHS Response Brief
Government files response brief opposing appeal (optional but common)
BIA Review and Decision
BIA reviews record, briefs, and issues written decision
Decision Implementation
BIA decision is final unless appealed to federal circuit court
BIA Decision Types
Affirm (Affirmance)
BIA agrees with immigration judge's decision. Appeal is denied and original order stands.
Reverse (Reversal)
BIA disagrees with immigration judge. May grant relief directly or remand for further proceedings.
Remand
BIA sends case back to immigration judge for further proceedings, new hearing, or additional evidence.
Dismiss (Dismissal)
Appeal dismissed for procedural reasons (late filing, lack of jurisdiction, withdrawal).
BIA Review Standards
Legal Issues
De Novo Review:
BIA reviews legal conclusions independently without deference to immigration judge's legal determinations.
Factual Findings
Clear Error Standard:
BIA defers to immigration judge's factual findings unless clearly erroneous based on record evidence.
Common Appeal Issues
Credibility Determinations
Challenging immigration judge's adverse credibility findings in asylum and other testimony-based cases.
Legal Standard Applications
Arguing immigration judge applied incorrect legal standard for relief (extreme hardship, good moral character, etc.).
Procedural Violations
Due process violations, inadequate interpretation, denial of continuances, or other procedural errors.
Country Conditions
Disputes over current country conditions for asylum, withholding, or CAT protection cases.
Strategic Considerations
When to Appeal
- • Clear legal errors in immigration judge's decision
- • Factual findings clearly contradicted by record evidence
- • Procedural violations affecting fundamental fairness
- • Immigration judge misapplied legal standards
- • Strong likelihood of favorable BIA precedent
When Not to Appeal
- • Factual determinations well-supported by evidence
- • Clear adverse legal precedent exists
- • Alternative relief options available
- • Weak case unlikely to succeed on appeal
- • Time better spent on other legal strategies
Processing Times and Statistics
Processing Time
Success Rate
Single vs. Panel
After BIA Decision
Options After Adverse BIA Decision
- 1Federal Court Appeal: Petition for review to U.S. Court of Appeals within 30 days
- 2Motion to Reopen/Reconsider: File motion with BIA based on new evidence or legal errors
- 3Stay of Removal: Request stay pending federal court appeal or other proceedings
- 4Alternative Relief: Pursue other forms of immigration relief if available
Pro Se vs. Represented Appeals
Pro Se Challenges
Representation Benefits
Critical Filing Requirements
Essential Filing Checklist
- Form EOIR-26 filed within exactly 30 days (count weekends and holidays)
- $520 filing fee paid or fee waiver request filed simultaneously
- Proper service on DHS counsel with certificate of service
- Appellate brief filed within 21 days (or request extension in advance)
- Complete record citations for all factual assertions in brief