Appealing to the Board of Immigration Appeals

The immigration legal framework is complex and is solely based on federal law. This means that state courts do not get directly involved in the immigration processes and decisions. Instead, there are a variety of federal agencies, courts and organizations in place to make these decisions.

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In accordance with the concept of due process, many immigration decisions (although not all of them) are reviewable by a higher court, office or agency. For example, the Administrative Appeals Office, or AAO, is responsible for handling the appeals for negative decisions concerning certain immigration benefits, such as certain visa petitions and applications. But the AAO doesn’t handle all appeals for immigration decisions. The decisions made by immigration judges in the Executive Office for Immigration Review (EOIR) (more commonly referred to as “immigration court)” are reviewed by the Board of Immigration Appeals.

The Board of Immigration Appeals, or BIA, is the highest administrative tribunal for applying and interpreting United States immigration laws. There are only two legal entities that are higher than the BIA: the US Court of Appeals (also called Circuit Courts) and the Supreme Court of the United States.

The BIA consists of approximately15 administrative judges with each administrative judge conducting a “paper review” of the appeals sent before him or her. This means the administrative law judge will make a decision based on the court record from the immigration court and any documents filed by the parties during the appeal, such as briefs. In most cases, the BIA will not have another courtroom proceeding or hear each side present its case. Also, usually only one administrative judge will make a decision on appeal. Only on rare occasions will a three administrative judge panel decide an appeal.

The BIA has jurisdiction to review a variety of immigration matters. However, the most common type of decision the BIA hears involves removal (also known as deportation). Other types of cases that may go before the BIA include:

• Denial of waiver of inadmissibility.
• Denial of a motion to reopen.
• Fines imposed for violations of US immigration law.
• Decisions involving visa petitions.

Besides having the BIA reconsider the unfavorable decision from the immigration judge, another major reason to appeal to the BIA is to put the immigration judge’s decision on hold. This means if the immigration judge ordered the removal of an individual, the individual may remain in the United States until the BIA makes a decision on his or her appeal. Even if leaving the United States is inevitable, having this extra time to get one’s affairs in order can be invaluable.

After an immigration judge makes his or her decision, the individual has 30 days to file an appeal with the BIA. This 30 day clocks begins with either the day the immigration judge hands down his or her oral decision or the day the immigration judge mails his or her written decision.

The individual files this appeal by completing Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge. By filing an appeal, the individual becomes the “appellant.”

The appellant must then send Form EOIR-26 directly to the BIA in Falls Church Virginia. It is not enough that the appellant mails the notice of appeal within 30 days. Rather, the BIA must receive Form EOIR-26 within 30 days. So most appellants will actually have a few days less than 30 for filing an appeal.

In addition to completing Form EOIR-26, the appellant must pay a fee of $110. The appellant may be able to avoid paying this fee if it will cause a financial hardship. However, they will need to complete Form EOIR-26A, Fee Waiver Request and send it to the BIA along with Form EOIR-26.

When completing Form EOIR-26, there are three things the appellant will need to decide. First, the appellant will need to provide the factual and/or legal basis for the appeal. Simply stating “the immigration judge was wrong” is not enough. This is where having an immigration attorney to help with the appeal can be especially beneficial.

Second, the appellant is strongly advised to submit a written brief. The brief is optional, but it provides an excellent opportunity to further explain why the immigration judge made an incorrect decision. The brief is not sent with Form EOIR-26, but is submitted later after the BIA creates a briefing schedule and tells the appellant when his or her brief is due.

Third, the individual can choose whether to request oral arguments. Oral arguments are rarely granted, but unless the appellant’s immigration attorney advises otherwise, the appellant should request oral arguments. An appellant can improve his or her chances of getting oral arguments by submitting a brief.

Yes. The US Court of Appeals may review a decision made by the BIA. If an individual loses at the immigration court and BIA levels, the individual should discuss with his or her immigration attorney whether a second appeal to the US Court of Appeals is worthwhile.

Determine whether you have grounds to appeal the BIA. A day procrastinating, delaying or merely no taking action out of fear or for any reasons brings you one step closer to having no recourse. Don’t damage your own future with inaction. Contact an immigration attorney to review your case and where it is viable, shepherd your immigration matter through the appellate process.

Call the New York immigration lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.