Appeals to BIA

The Board of Immigration Appeals, located in Falls Church, Virginia, is the highest administrative body for interpreting and applying immigration laws.  Its members include a Chairman and Vice Chairman who share responsibilities for Board management. The number of Board Members has varied over the years.  Currently, the Board is authorized up to a total of 15 board members.

More complicated cases are often decided by three member panels; however, the entire board will hear the most important cases.  The BIA has broadened and accelerated its “streamlining” process, by which it summarily reviews and denies appeals from immigration judge orders.  Under this process, the BIA can summarily dismiss many appeals of IJ decisions by “Affirmance Without Opinion.”  Under the “Affirmance Without Opinion” process, the BIA dismisses an appeal without any Board Member writing an opinion, often after review by only a BIA staff attorney and a cursory review by one BIA member.

The Board exercises appellate jurisdiction over various types of actions.  These include review of immigration judges' decisions in removal cases; decisions of immigration field office directors and immigration judges on waiver applications; relative visa petition denials and approval revocations; bond, parole or detention determinations; and immigration judge decisions on rescissions of adjustment of status.  Also included in BIA review are a wide variety of applications, including fraud waivers under section 212(i) and waivers of inadmissibility under section 212(h).  The BIA's review of deportation decisions includes review over the designated country of deportation; suspension of deportation (now cancellation) applications; voluntary departure applications; registry determinations; discretionary waiver application determinations; asylum applications; and adjustment of status applications.

Only aggrieved parties have standing to appeal to the Board.  In relative visa petition cases, this means only the petitioner (or the petitioner and the beneficiary together) may file the appeal.  In removal cases, only the person ordered removed has standing to take an appeal to the BIA.  The BIA has broad authority to review both issues of fact and issues of law, to make its own independent findings of fact and to exercise its broad discretionary powers as it sees fit. Usually, however, the Board will accept an immigration judge's findings of fact, on the rationale that the trier of fact had the better opportunity to assess credibility.  The BIA generally limits its review to matters in the hearing record, and will not consider new evidence on appeal, absent exceptional circumstances.

You must file a notice of appeal on Form EOIR-26, together with the appropriate filing fee. The BIA may waive the filing fee for indigents.  Appeals from decisions of immigration judges are filed directly with the BIA, while appeals from decisions of USCIS officers are filed with the immigration officer who has jurisdiction over the case.  You must file the notice of appeal within the time periods specified in the regulations.  In deportation or removal cases, the Board must receive the notice within thirty days of the immigration judge's decision.  The notice of appeal is not considered filed until it is actually received, with a filing fee.  If the last day to file falls on a Saturday, Sunday or legal holiday, then the period in which to appeal is extended to the next business day.

You must set out the specific reasons for the appeal on the notice of appeal form.  Failure to comply with this requirement may result in a summary dismissal by the Board.  The Board may also dismiss appeals that are frivolous or filed solely for delay.  If oral argument is desired, you must request it in the notice of appeal.  The BIA then has discretion whether to grant the request.  The Board will order a transcript of the immigration court hearing and send it to the alien or his or her attorney, who will then be permitted a period of time in which to submit a brief on appeal.

Typical Appeals


Your eligibility is determined by the contents of the denial letter you received, however, the following are cases that are usually adjudicated by the BIA:

  1. Immigration Judge decisions in exclusion cases.
  2. Immigration Judge decisions in deportation cases.
  3. Immigration Judge decisions in removal proceedings.
  4. Decisions involving administrative fines and penalties.
  5. Decisions on petitions filed under Section 204 of the Immigration and Nationality Act.
  6. Decisions on requests for re-validation and revocations of approval for such cases.
  7. Decisions on applications for exercise of discretionary authority under Section 212(d)(3) in part 1212.
  8. Determinations relating to bond, parole or detention of an alien.
  9. Immigration Judge decisions in rescission of adjustment of status cases.
  10. Immigration Judge decisions in asylum proceedings.
  11. Immigration Judge decisions in Temporary Protected Status cases.
  12. Decisions on organization and attorney applications to be included on the official list of free legal services or decisions on whether to remove organizations and attorneys from the list.
  13. Immigration Judge decisions in adjustment of status cases where the case was referred on a Notice of Certification to the Immigration Court.
  14. Decisions of adjudicating officials in practitioner disciplinary proceedings.
  15. Immigration Judge decisions regarding the custody of aliens subject to a final order of removal.


Process

Notice
If you are eligible to file an appeal then you have 30 days from the date of the decision to file or 33 days if the notice was mailed to you.  But if the appeal is for a revoked immigrant petition approval then you have 15 days from the date of the decision or 18 days if the decision was mailed to you.

How to Appeal an Immigration Judge Decision

  1. Complete Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge.
  2. If you have an attorney representing you then you will need to include a Form EOIR-27.
  3. Include the applicable filing fees or fee waiver request.
  4. Complete and sign the Proof of Service.6. Mail the EOIR-26 so that it is received by the BIA within thirty calendar days of the Immigration Judge’s oral decision or within thirty calendar days of the date the decision was put in the mail if there was no oral decision.

Appeal a USCIS Officer Decision

  1. Complete Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a USCIS Officer.
  2. If you have an attorney representing you then you will need to include a Form EOIR-27.
  3. Include the applicable filing fees or fee waiver request.
  4. File the EOIR-29 directly with the USCIS office that has administrative control over the record of proceeding within thirty calendar days of receiving the decision.

Reasons for Summary Dismissal of Appeal

  1. The appellant fails to specify the reasons for the appeal.
  2. The only reason specified by the appellant for his/her appeal involves a finding of fact or conclusion of law that was conceded by him/her at a prior proceeding.
  3. The appeal is from an order that granted the appellant the relief that had been requested.
  4. The appeal is filed for an improper purpose, such as a delay or lacks an arguable basis in fact or law.
  5. The appellant states on the Form EOIR-26 that he or she will file a separate brief or statement in support of the appeal but thereafter does not file or reasonably explain their failure to do so within the window set for filing.
  6. The appeal does not fall within the BIA’s jurisdiction.
  7. The appeal falls within the jurisdiction of the Immigration Judge and not the BIA.
  8. The appeal is filed in an untimely manner or barred by an affirmative waiver of the right to appeal.
  9. The appeal does not meet statutory or regulatory criteria.
  10. The appeal is expressly prohibited by a statute or regulation.

Challenge Waiver of Appeal

Usually when a party waives the right to appeal they cannot retract or undo the waiver but if a party wants to challenge the validity of a waiver of appeal then they have two methods of doing so. The first is to file a written explanation with the Immigration Judge stating why the appeal waiver was not valid.  The second method is to file a written explanation with the BIA explaining why the waiver was not valid.


FAQ

Q1. I am the beneficiary of a visa petition. Am I able to file my own appeal?
If you are the beneficiary of a visa petition but not the petitioner then you may not file an appeal. Only the visa petitioner can file an appeal or motion in a visa petition case. Only beneficiaries who are self-petitioners can file an appeal.

Q2. Where exactly do I file my appeal?
If you are attempting to appeal a decision then you need to use the Denial Notice you were sent to determine where exactly to file your appeal. When you receive your Denial Notice it will include information about your appeal rights, information about which form to use and specific filing instructions. Generally, you file your appeal with the office that made the decision or the USCIS office with jurisdictions over your case type.

Q3. Are there any available waivers for the appeal filing fee?
USCIS usually does not waive filing fees but if you were granted a waiver for your denied petition or application then you will more than likely be granted a waiver for the appeal.

Q4. Do I need to submit a brief with my appeal to the BIA?
If you are filing an appeal then you do not usually have to file a brief too unless you are specifically requested to do so. However, if you think it may help your chances of successfully appealing the decision then you can.

Q5. What if I leave the U.S. after an Immigration Judge’s decision but before I appeal to the BIA?
If you leave the U.S. before filing an appeal then you may have actually waived your right to appeal. On the other hand, if you file your appeal and then leave before a decision is made then your appeal will be withdrawn and the Immigration Judge’s decision will be put into effect.

Q6. What is meant by the term “calendar” days when used to describe when to submit the appeal by?
The term calendar day is used to imply that these are not business days but every day of the calendar.
 
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