Appeal a Denial from Immigration Court: A Practical Guide
Date of Information: 06/29/2025
Check back soon; we update these materials frequently.
If you or a loved one receives a denial from an Immigration Judge, it can be an overwhelming moment. But the process doesn't have to end there. Here's a straightforward guide to understanding how appeals to the Board of Immigration Appeals (BIA) work, including timelines, procedures, and practical tips.
Step 1: Understand the Judge's Decision
An Immigration Judge (IJ) may deny relief such as asylum, cancellation of removal, or adjustment of status. The decision may be issued:
Orally in court, in which case the appeal clock starts that same day.
In writing by mail, in which case the appeal clock starts on the date of mailing listed on the decision.
Step 2: File the Notice of Appeal (EOIR-26)
Deadline: The Notice of Appeal must be received by the BIA within 30 calendar days of the IJ's decision. This deadline is established by 8 C.F.R. § 1003.38(b) and is generally strict and jurisdictional. However, under that same regulation, if the 30th day falls on a Saturday, Sunday, or legal holiday, the deadline is extended to the next business day. There are no other substantive exceptions—the BIA has no authority to extend the deadline for mailing delays or equitable reasons, as confirmed in Matter of Liadov, 23 I&N Dec. 990 (BIA 2006).
No extensions: This deadline is strict and jurisdictional. If missed, the BIA will reject the appeal.
Filing location:
For practitioners without access to EOIR's eROP/eRegistry system, the EOIR-26 must be sent to:
Board of Immigration Appeals
Clerk's Office
5107 Leesburg Pike, Suite 2000
Falls Church, VA 22041
For practitioners with eROP access, the EOIR-26 and supporting materials must be filed electronically through the EOIR Case Portal (https://ecase.eoir.justice.gov/).
Step-by-step Process for Filing an EOIR-26 Notice of Appeal ECAS:
Log in to your eROP account using your EOIR ID and password.
Navigate to the "Appearances" tab before initiating the appeal. File an EOIR-27 (Notice of Entry of Appearance) in the system and save a copy to your computer. This will simplify the process of attaching a copy during the EOIR-26 filing.
Go to the "Cases" tab and locate the correct case or alien registration number.
Select "Upload Document" or "File Appeal" if initiating a new appeal.
Follow the prompts to upload the EOIR-26 in PDF format. You may be asked to upload a copy of the EOIR-27 here as well.
Optionally upload any supporting documentation.
Review and certify the information before submitting.
Once submitted, the system will generate a Confirmation Page. Save or print this confirmation immediately—it is your proof of timely filing.
Within minutes, the uploaded appeal should appear in the Document & Case Summary tab under that case.
Tips:
Double-check that the document is properly labeled (e.g., EOIR-26, Notice of Appeal).
Ensure the correct case is selected before uploading.
If you encounter technical difficulties, take screenshots and contact EOIR Tech Support for documentation.
(Visual walkthroughs are available at EOIR’s eROP User Guide site. You may also refer to the EOIR eRegistry and eROP training materials made available to registered attorneys.)
Step 3: Wait for the BIA's Briefing Schedule
Once the BIA receives your EOIR-26 and opens a case, it will issue a briefing schedule:
Typically gives you 21 days to submit your written brief.
You may request an extension before the due date, but must show good cause.
Step 4: Draft and File Your Appeal Brief
The appeal brief is your opportunity to explain:
Why the IJ made legal or factual errors.
What legal standards apply.
How the facts support your claim.
Standards of Review: The BIA applies different standards of review depending on the type of issue:
Questions of law and application of law to undisputed facts are reviewed de novo, meaning the BIA gives no deference to the IJ’s conclusions. See 8 C.F.R. § 1003.1(d)(3)(ii)
Findings of fact, including credibility determinations, are reviewed for clear error. The BIA will not disturb these unless it is left with a definite and firm conviction that a mistake has been made. See 8 C.F.R. § 1003.1(d)(3)(i)
Format tips:
Label each section clearly (e.g., "Statement of the Case," "Issues Presented," "Argument").
Include citations to the record and legal authorities (statutes, regulations, BIA and federal case law).
The BIA does not require a specific format, but clarity and structure matter. There is a good template here (but please note this is not a resource from Charles International Law, and we are not responsible for errors that might affect your interests.)
Step 5: Await the Decision
The BIA does not ordinarily hold hearings; it decides most cases based on the written record. However, in rare or complex cases, the BIA may schedule oral argument at its discretion. Oral arguments are usually granted only in cases that present novel issues of law, involve inconsistencies in precedent, or raise questions of exceptional importance.
A decision can take several months.
If the BIA dismisses your appeal, you may still be able to seek review in federal court (U.S. Court of Appeals).
Key Authorities
8 C.F.R. § 1003.3(c): Governs the procedures for filing briefs and sets the standard for requesting extensions of briefing deadlines.
8 C.F.R. § 1003.38: Rules governing appeals to the BIA.
8 C.F.R. § 1003.1(d)(3): Standards of review.
BIA Practice Manual: Detailed procedural guidance.
Matter of Liadov, 23 I&N Dec. 990 (BIA 2006): Strict enforcement of filing deadlines.
Final Thoughts
Navigating the BIA process requires speed, clarity, and attention to legal detail. If you’re appealing a denial, don’t wait—start the paperwork immediately and consult an experienced immigration attorney if possible. Time is not on your side, but the law still is.
Need Help with Your Immigration Appeal?
Appeals are arguably the most technical aspect of the legal system. If you're facing a denial, it is important to find an attorney who understands both immigration law and appellate litigation. If need guidance through the appeals process, we're here to help. Schedule a confidential consultation with an experienced immigration attorney who understands what’s at stake—and how to fight back.
Frequently Asked Questions About Appealing an Immigration Court Denial
What does it mean to “appeal” an Immigration Judge’s decision?
An appeal asks the Board of Immigration Appeals (BIA) to review the Immigration Judge’s decision for legal or factual error. The BIA usually reviews the written record (transcripts, exhibits, and the judge’s decision) and the parties’ legal briefs.How much time do I have to appeal?
Very little. The deadline is short and strictly enforced. If you miss it, the judge’s order generally becomes final. Talk to an attorney immediately to calculate your exact deadline and preserve your rights.How do I start an appeal?
You begin by filing a Notice of Appeal with the BIA and the filing fee or a fee-waiver request. If the appeal is accepted, the BIA issues a briefing schedule telling you when your written argument (brief) is due.Will filing an appeal stop my removal?
A timely, properly filed appeal usually prevents the Immigration Judge’s removal order from becoming final while the BIA has the case. Do not assume—confirm your status with counsel, especially if you have travel or check-in obligations.Can I submit new evidence to the BIA?
Appeals are mostly decided on the existing record. If you need the BIA to consider new, material evidence that could not have been presented earlier, you typically file a motion to remand (asking the BIA to send the case back to the judge) or, in some situations, a motion to reopen.What’s the difference between a motion to reconsider and a motion to reopen?
Reconsider: argues the judge or BIA made a legal or factual error based on the existing record.
Reopen: asks to consider new, previously unavailable evidence that could change the outcome.
Each has different deadlines and requirements.
What happens after I file the Notice of Appeal?
You’ll receive a scheduling order. The government may file a brief, and you’ll file yours by the deadline. The BIA can affirm, reverse, remand to the Immigration Judge, or dismiss the appeal. Most decisions are “on the papers,” without a live hearing.Can I keep working while my appeal is pending?
It depends on your underlying eligibility. Some applicants (for example, certain asylum applicants) may be able to renew work authorization while an appeal is pending. Ask your attorney to confirm your category, timing, and renewal strategy.I was granted voluntary departure—can I still appeal?
Voluntary departure comes with strict conditions and can interact negatively with appeals. Do not file anything until you speak with counsel; you could unintentionally cancel your voluntary departure or trigger penalties.What if I already missed the appeal deadline?
Options are limited but may exist in narrow circumstances (for example, certain motions tied to lack of notice or exceptional situations). Act quickly—these paths are deadline-driven and fact-specific.Can I appeal a bond (custody) decision the same way?
Custody (bond) appeals follow a separate process and timeline from removal-order appeals. If you or a loved one is detained, ask about the correct form, deadline, and standards right away.What if the BIA denies my appeal?
You may be able to file a petition for review with the appropriate U.S. Court of Appeals within a short deadline and ask the court for a stay of removal. Federal court review is complex—consult an attorney immediately.Do I need a lawyer to appeal?
You are not required to have a lawyer, but appeals are technical and deadline-driven. An experienced attorney can identify appealable errors, preserve issues, craft legal arguments, and navigate motions practice.What should I bring to my appeal consultation?
Bring the judge’s decision, all hearing notices, transcripts (if available), exhibits, your Notice of Appeal (if already filed), and any new evidence that supports reopening or remand.How long does a BIA appeal take?
Timelines vary widely based on the case type and docket. Your attorney can give you a current estimate and discuss strategies to protect your interests while you wait.
Other Helpful Resources:
See Also:
CIL Guide to the Circumvention of Lawful Pathways Rule
