An unsuccessful applicant may appeal to the Board of Immigration Appeals (BIA), an administrative body in Falls Church, Virginia, close to Washington, DC. While a BIA appeal is pending, the final order of removal is stayed.
27.1 Notice of Appeal
To appeal before the Board of Immigration Appeals (“BIA”), the applicant must file a Notice of Appeal and required fee ($110 as of this writing, see www.usdoj.gov/eoir/appealtypes.htm for updates) with the BIA so that is received within 30 days of the Immigration Judge’s (“IJ’s”) decision. This deadline is very strictly enforced. A certificate of service must also be included with your Notice of Appeal, stating that service of the Notice was made on the Office of the Chief Counsel. All correspondence to the BIA must include a certificate of service to the Office of the Chief Counsel. It should also be sent by certified mail return receipt requested or via Federal Express or other overnight delivery service.
The Notice of Appeal (EOIR-26, see http://www.justice.gov/sites/default/files/pages/attachments/2015/07/24/eoir26.pdf) is a relatively straightforward form, but the grounds of appeal must be stated sufficiently to avoid summary dismissal. Even if the attorney does not intend to represent the applicant on appeal, they should consider assisting the applicant to fill out the Notice of Appeal. At the time the Notice of Appeal must be submitted, there will generally be written opinion by the IJ which makes it very difficult for a new attorney on the case to file the form. If the attorney does intend to represent the applicant on the BIA appeal, they must submit a new Notice of Appearance form (Form EOIR-27, see http://www.justice.gov/sites/default/files/pages/attachments/2015/07/24/eoir27.pdf). Filing the Notice of Appeal automatically stays the removal order until the final decision by the BIA.
27.2 The Argument
BIA appeals are almost always done entirely on paper. While it is possible to request oral argument, the BIA almost never grants it. Several (generally 6–18) months after the Notice of Appeal has been filed, the attorney of record, or respondent if there is no attorney of record, will receive the transcript and record on appeal. Once the attorney has received this, they have 21 days to submit a written brief. They can request one adjournment for good cause, which will give them an additional 21 days to file the brief.
The BIA has limited fact-finding ability on appeal, which heightens the need for IJs to include in their decisions clear and complete findings of fact that are supported by the record and are in compliance with controlling law. 1 Because the majority of IJ decisions are affirmed without opinion by a single BIA member, it is important to fully understand the circumstances under which a three-member panel is required and to argue zealously for a three-member panel.
Information on writing BIA appeals is beyond the scope of this manual, but two excellent resources are the BIA Practice Manual, which is put out by the BIA itself, and the American Immigration Law Foundation’s practice advisory on BIA practice.
- See, also, Matter of S-H-, Int. Dec. 3478 (BIA 2002); Matter of Villanova-Gonzalez, 13 I. & N. Dec. 399 (BIA 1969) and Matter of Becerra-Miranda, 12 I. & N. Dec. 358 (BIA 1967, superseded.). ↩