BIA Appeals: Appealing an Immigration Judge's Decision

What can be appealed to the BIA

The Board only hears the kinds of cases listed in 8 CFR 1003.1(b). The ones people ask about most are:

• Immigration judge decisions in removal proceedings, such as findings that a person is removable and decisions granting or denying asylum, withholding of removal, cancellation of removal or other relief. By regulation, no appeal lies from the length of a voluntary departure period an immigration judge grants.
• Bond, parole and detention decisions under 8 CFR part 1236 (see our guide to bond hearings).
• Certain DHS decisions on family-based visa petitions filed under INA section 204, for example some Form I-130 denials and revocations. The rule leaves out a few petition categories, and these appeals start with DHS, not the Board.
• Other listed matters, including immigration judge decisions on Temporary Protected Status, rescission of adjustment of status, asylum-only proceedings, and certain administrative fines.

EOIR's page Appeal an Immigration Judge's Decision notes that the BIA cannot review decisions made in credible fear or reasonable fear reviews or in claimed status review proceedings.

The 2026 rule change: what to know first

On February 6, 2026, the Department of Justice published an interim final rule, Appellate Procedures for the Board of Immigration Appeals (91 FR 5267), effective March 9, 2026. It changed briefing, cut the appeal deadline for most cases from 30 to 10 days, and added a rule that most appeals of decisions issued on or after March 9, 2026 are summarily dismissed unless a majority of the permanent Board members vote en banc to hear them.

A federal court then vacated part of that rule on March 8, 2026. EOIR's Director confirmed in Policy Memorandum 26-02 (effective March 13, 2026) that the 10-day deadline was vacated and "is not in effect," so the deadline to appeal an immigration judge's decision remains 30 days. The eCFR still prints the rule's text, so reading the regulation alone can mislead. Other parts of the rule, including the default summary-dismissal provision, were also challenged in that case; anyone appealing now should check the current status of each provision with counsel before relying on it.

The deadline: 30 days, counted by receipt

An appeal starts with Form EOIR-26, the Notice of Appeal from a Decision of an Immigration Judge, filed directly with the Board, not with the immigration court or DHS. According to BIA Practice Manual chapter 3.5 and EOIR's appeal page, the form must be received by the Board no later than 30 calendar days after the immigration judge gives an oral decision or mails a written one.

• Receipt, not postmark. The Board does not follow the "mailbox rule." A filing counts on the day it arrives. For detained people, handing an appeal to facility staff or putting it in the facility's mail system does not make it timely.
• No extensions. The Practice Manual states that the Board has no authority to extend the time to file a Notice of Appeal. The narrow exceptions are an unplanned outage of EOIR's e-filing system on the last day (8 CFR 1003.3(g)(2)), the 15-day cure period after a fee waiver is rejected, and equitable tolling, which requires a separate motion showing diligence and an extraordinary circumstance.
• Weekends and holidays. If the last day falls on a Saturday, Sunday or legal holiday, the deadline moves to the next business day (8 CFR 1003.38).
• Waiver ends the right to appeal. If a party waives appeal in front of the immigration judge, or no EOIR-26 is filed in time, the immigration judge's decision becomes final.

Filing the Notice of Appeal correctly

A Notice of Appeal can be on time and still be rejected. Under 8 CFR 1003.3 and 8 CFR 1003.38, a properly filed appeal includes:

1. Specific reasons. The appeal must identify the findings of fact, conclusions of law, or both, that are being challenged, cite authority for legal questions, and, for discretionary relief, say whether the error concerns statutory eligibility or discretion. If the reasons are not stated, the Board may summarily dismiss the appeal under 8 CFR 1003.1(d)(2)(i). The Practice Manual warns that vague generalities and general assertions of error are unlikely to tell the Board the reasons for the appeal.
2. The fee or a fee waiver request. A filing fee applies unless it is waived; the waiver is requested on Form EOIR-26A with a declaration under penalty of perjury (8 CFR 1003.8). The amount is set in 8 CFR 1103.7 and is paid through the EOIR Payment Portal. Because an inflation adjustment takes effect October 1, 2026 (91 FR 54211), confirm the current amount on the official source on the day you file. No fee is required for a custody bond appeal.
3. Proof of service on DHS, unless all parties are filing electronically, in which case EOIR's system serves the filing by email.
4. Form EOIR-27 if a lawyer represents the appellant, or Form EOIR-60 if a lawyer only helped prepare the document.
5. A decision on briefing and oral argument. The form asks whether a brief will be filed and whether oral argument is requested. Saying a brief will be filed and then not filing one is itself a ground for summary dismissal.

Attorneys and accredited representatives must file electronically through the EOIR Courts & Appeals System (ECAS), and they must first register with EOIR through eRegistry to practice before the immigration courts or the Board (EOIR Policy Manual Part I, chapter 1.5). The forms are on EOIR's forms page.

The BIA decides on the written record

The Board does not hold a new trial. EOIR describes its work as a "paper review" of cases. The Board reads the record made in immigration court: the hearing transcript, the exhibits the judge admitted, the judge's decision, and the parties' briefs.

• No new evidence. Practice Manual chapter 3.8 says the Board considers only evidence admitted below and does not consider new evidence on appeal. Apart from administrative notice of commonly known facts, such as current events or official documents, the Board does not find facts (8 CFR 1003.1(d)(3)(iv)).
• Motion to remand. A party who needs new facts considered files a motion to remand, which asks the Board to send the case back to the immigration judge. Such a motion is held to the same substantive standards as a motion to reopen, and the evidence must be attached (Practice Manual chapter 4.8).
• Oral argument is rare. Under 8 CFR 1003.1(e)(7), only a three-member panel or the Board en banc may hear argument, at its discretion; it must be requested in the Notice of Appeal, and no argument is allowed in a case assigned to a single member. Practice Manual chapter 7.2 says oral argument "is rarely granted."

Because the Board decides appeals on the written record, an appeal does not normally involve travel to a hearing. That is why the work can be done for people in any state, detained or not. Carlos Maury is licensed in Florida; because immigration law is federal, he can take Board appeals for clients in all 50 states.

Briefing schedule and extensions

For appeals of immigration judge decisions issued on or after March 9, 2026, 8 CFR 1003.3(c)(1) and Practice Manual chapter 3.7 provide:

• In both detained and non-detained cases, both parties file briefs at the same time, within 20 days of the Board's order setting the schedule (and making the transcript available, when one is prepared).
• Reply briefs are not accepted unless the Board invites or orders one.
• Extensions are granted only in "exceptional circumstances" as defined in INA section 240(e)(1). Workload, travel plans and similar matters within a party's control do not qualify. If an extension is granted, the Board's policy is to add 20 days to the original deadline for both parties, and it does not grant second extensions.

For decisions issued before March 9, 2026, the Practice Manual describes the earlier schedule of 21 days per brief, sequential in non-detained cases and simultaneous in detained cases. A late brief needs a motion to accept it, and the Board has discretion over it. In practice, the brief is where most of the argument is made, so these short, fixed dates matter.

Standards of review

How much weight the Board gives the immigration judge's decision depends on the issue (8 CFR 1003.1(d)(3)):

• Facts, including credibility, are reviewed only for clear error. The Board does not re-weigh the facts from scratch.
• Questions of law, discretion and judgment may be reviewed de novo, meaning the Board decides for itself.

A good appeal is built around this line. It shows why a factual finding was clearly erroneous on the record, or why the judge applied the wrong legal standard. It is not simply a retelling of the case.

Stays of removal while the appeal is pending

Under 8 CFR 1003.6(a), an immigration judge's decision that can be appealed is not carried out during the time allowed for appeal (unless appeal is waived), and it is not carried out while a timely appeal is pending. Practice Manual chapter 5.2 explains that this automatic stay covers merits decisions but not bond or custody decisions.

There is no automatic stay for an appeal from an immigration judge's denial of a motion to reopen in absentia removal proceedings, or for a motion to reopen or reconsider a prior Board decision. In those cases a party may file a written motion for a discretionary stay (Practice Manual chapter 5.3). For a recent precedent on the order in which stays should be sought, see our article on Matter of Herrera-Nunez.

Who decides: single members, panels and precedent

Under 8 CFR 1003.1(e), cases are screened and, as a rule, assigned to a single Board member. A single member may affirm without opinion when the result below was correct and any errors were harmless or immaterial, or may issue a short order affirming, modifying or remanding. A three-member panel hears only cases that meet listed criteria, such as the need to settle inconsistent rulings, set precedent, review a clearly erroneous finding of fact, reverse the judge, or resolve a complex or novel issue.

Some decisions are designated as precedent. They bind immigration judges and DHS nationwide and are published in Administrative Decisions Under Immigration and Nationality Laws. For example, our article on Matter of C-L-R- covers a recent precedent on competency safeguards.

Possible outcomes

• Dismissed: the immigration judge's decision stands. This also covers summary dismissals for defects such as an unstated basis, an untimely filing, or a promised brief that was never filed.
• Sustained: the Board agrees there was error and may reverse or modify the decision.
• Remanded: the case goes back to the immigration judge, for example for further fact-finding. After a remand and a new decision, a new appeal may be filed.

After the BIA decides

A Board decision is final unless the Attorney General reviews it. Two paths remain, and their deadlines run at the same time:

• Motions at the Board. Under 8 CFR 1003.2, a motion to reconsider (arguing an error of law or fact in the decision) is generally due within 30 days of the Board's decision, and a motion to reopen (based on new, previously unavailable facts) is generally due within 90 days. Each is generally limited to one motion. See our guides to motions to reopen and motions to reconsider, and our article on 8 CFR 1003.2.
• Petition for review. Under INA 242(b)(1), 8 U.S.C. 1252(b)(1), a petition for review must be filed in the federal court of appeals no later than 30 days after the final order of removal. It goes to the circuit where the immigration judge completed the proceedings. Filing a motion with the Board does not pause this deadline. See our guide to judicial review and our article Judicial review: the petition for review explained.

An appeal is one stage of a larger case. Our removal defense guide covers the stages before it.

Choosing a BIA appeal lawyer

An appeal is written advocacy on a short clock, so it helps to look for a few concrete things in a BIA appeal lawyer:

• Registration and appearance. The lawyer is registered with EOIR through eRegistry, files through ECAS, and enters an appearance on Form EOIR-27.
• Deadline control. The lawyer confirms the exact decision date, which deadline applies, and that the filing will be received in time, with the fee or EOIR-26A attached.
• Record-based work. The lawyer obtains and reads the full record and transcript, and ties each argument to what is actually in it and to the right standard of review.
• A plan for what comes next. That means knowing when a motion to remand, a stay request, a motion to reopen or reconsider, or a petition for review might be needed, and what each deadline is.

No lawyer can promise a result, and you should be wary of anyone who does.

To have a former immigration judge handle your own case, from the immigration court to an appeal, see our deportation defense lawyer page.

To have a former U.S. Immigration Judge prepare your appeal to the Board or a motion after its decision, see our immigration appeals lawyer page.

How Carlos Maury Law helps

Carlos Maury is a former U.S. Immigration Judge who served at the Van Nuys Immigration Court (appointed in 2015). Learn more about the attorney. The firm reviews immigration judge decisions and the record of proceedings to identify the issues that can be raised on appeal, prepares the Notice of Appeal and brief, and advises on stays, motions and next steps. Because the Board decides appeals on the written record, this work does not depend on where in the United States the client lives or is detained.

Sources

• EOIR: Board of Immigration Appeals
• EOIR: Appeal an Immigration Judge's Decision
• 8 CFR 1003.1, 1003.2, 1003.3, 1003.6, 1003.8, 1003.38, 1103.7
• BIA Practice Manual chapters 3.5, 3.7, 3.8, 4.8, 5.2, 5.3, 7.2
• EOIR Policy Memorandum 26-02 (March 13, 2026)
• 91 FR 5267 (Feb. 6, 2026) and 91 FR 54211 (Aug. 21, 2026)
• 8 U.S.C. 1252; EOIR ECAS; EOIR Policy Manual Part I, 1.5 (eRegistry); EOIR forms