Board of Immigration Appeals

Appealing an immigration judge's decision to the BIA

The judge's decision isn't the end. But the window to appeal is only 30 days, and the notice has to say exactly what the judge got wrong.

Short answer: yes, you can appeal. You file a Notice of Appeal (Form EOIR-26) with the Board of Immigration Appeals within 30 calendar days of the judge's decision. File on time and, in most cases, the removal order can't be carried out while the appeal is pending.
Do this now
  1. Find the date of the decision. If the judge ruled at the hearing, that's the date. If a written decision came later, use the date it was mailed or sent electronically.
  2. Count 30 days, or use our deadline calculator.
  3. Find out whether the appeal was reserved or waived at the end of the hearing. A waiver can end the right to appeal.
  4. Gather everything the court gave you: the decision, notices, and anything you filed.
  5. Talk to an appellate lawyer well before day 30. The notice must say why the judge was wrong, so it can't be thrown together the night before.

What is a BIA appeal?

Think of the immigration judge's decision as the first draft of your case's ending. The Board of Immigration Appeals is the editor. It doesn't hold a new hearing or hear new witnesses. It reads the record and the briefs, and decides whether the judge got the facts or the law wrong.

That's why a BIA appeal is a writing case. The record is fixed. What changes the outcome is how clearly the brief shows the Board where the judge went wrong.

How long do I have to appeal?

Thirty calendar days. The Board must receive the notice within 30 days of the judge's oral decision, or of the mailing or electronic notice of a written decision. If the last day falls on a weekend or legal holiday, the deadline moves to the next business day.

8 C.F.R. § 1003.38(b)–(c)

What goes in the notice of appeal?

More than people expect. The notice must specifically identify the findings of fact, the conclusions of law, or both, that you are challenging. A vague notice that just says "the judge was wrong" invites the Board to dismiss the appeal without reaching the merits.

8 C.F.R. §§ 1003.3(b), 1003.1(d)(2)(i)(A)

Then comes the brief

After the notice is filed, the Board sends a briefing schedule along with the hearing transcript. The brief is where the appeal is won or lost. It walks the Board through the record, the standard of review, and the law.

  • Facts: the Board reviews the judge's fact findings, including credibility, only for "clear error."
  • Law and discretion: the Board reviews questions of law, discretion and judgment fresh ("de novo").
  • No new evidence: the Board doesn't take new evidence on appeal. New evidence calls for a motion to remand or reopen instead.

Knowing which standard applies to each issue is the difference between a brief that persuades and one that just complains.

8 C.F.R. §§ 1003.3(c), 1003.1(d)(3)

Can I be deported while the appeal is pending?

Generally, no. The judge's decision isn't carried out during the time allowed to appeal, or while a timely appeal is pending, unless the appeal was waived or an exception applies. The protection depends on filing on time.

8 C.F.R. § 1003.6(a)

What if the BIA says no?

The fight can continue in federal court. A petition for review goes to the federal court of appeals for the circuit where the immigration judge completed the case. For Texas courts, that's the Fifth Circuit. It's due 30 days after the final order. Filing it does not automatically stop removal, so a separate stay request may be needed.

You may also be able to file a motion to reconsider (30 days, for errors of fact or law) or a motion to reopen (90 days, for new facts), with exceptions written into the statute.

8 U.S.C. §§ 1252(b)(1)–(3), 1229a(c)(6)–(7)

How we help

  • Notices of appeal that identify the errors with specificity
  • BIA briefs built around the record and the right standard of review
  • Motions to reopen, reconsider and remand
  • Petitions for review and stay motions in the court of appeals
  • Briefing support for the attorney who tried the case

Straight answers

How much time do I have to appeal to the BIA?

30 calendar days from the judge's oral decision, or from the mailing or electronic notice of a written decision (8 C.F.R. § 1003.38(b)). If day 30 falls on a weekend or legal holiday, it moves to the next business day.

Can I be deported while my BIA appeal is pending?

Generally not. Under 8 C.F.R. § 1003.6(a), the decision isn't carried out while a timely appeal is pending, unless the appeal was waived or an exception applies.

Can I submit new evidence to the BIA?

Generally no. The Board decides on the existing record. New evidence is usually raised through a motion to remand or a motion to reopen.

What happens if the BIA denies my appeal?

You can file a petition for review in the federal court of appeals within 30 days of the final order (8 U.S.C. § 1252(b)(1)). Depending on the case, a motion to reconsider or reopen may also be possible.

I waived appeal at the hearing. Is it over?

A waiver is serious and can end the right to appeal. Whether it was knowing and voluntary can sometimes be questioned. Talk to a lawyer quickly.

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