Practice Area

Appeals Before the BIA

An appeal is not a second hearing. The Board reviews what the immigration judge did on the record that already exists — which is why the thirty days after a decision matter more than almost any other period in a case.

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Thirty days, received not sent

Form EOIR-26: The Notice of Appeal. It must be received by the Board within 30 calendar days of an oral decision or the mailing of a written one.
Fee or waiver: The filing fee, or a completed fee waiver request on Form EOIR-26A.
Reserve it in court: You must tell the judge you wish to appeal. Waiving appeal makes the decision final immediately.

Posting it on day thirty is too late.The rule is that the Board must have received the Notice of Appeal within thirty calendar days, not that you mailed it by then. Miss it and the judge’s decision becomes final.

What an appeal is

Review of a decision, not a fresh start.

If you believe the immigration judge made a legal or factual error, you can ask the Board of Immigration Appeals to review the decision. The Board can review decisions on removability, eligibility for relief, and bond.

There are decisions it cannot review. Credible fear and reasonable fear determinations are not appealable to the Board, and neither are claimed status review proceedings. If that is where your case ended, an appeal is the wrong instrument and something else has to be considered.

Because the Board reviews the record that already exists, the quality of what was built in front of the immigration judge largely determines what an appeal can achieve. Evidence that was never submitted below is generally not something the Board weighs — that is what a motion to reopen is for.

A decision of an immigration judge becomes final unless a party timely appeals it or the case is certified to the Board.

Choosing the instrument

Appeal, reconsider, or reopen. They do different jobs.

Picking the wrong one wastes the only window you have. The distinction turns on whether your argument is about the decision or about the facts.

When the argument is about the decision

Appeal to the Board — you say the judge got the law or the facts wrong. Form EOIR-26, received within 30 calendar days.
Motion to reconsider — filed with the immigration judge within 30 days of the final order. It must identify errors of law or fact with citation to authority and the record, or a change in law.
A motion to reconsider argues from the existing record. It does not introduce new evidence.

When the argument is about new facts

Motion to reopen — generally within 90 days of the final order.
It must state the new facts and be supported by affidavits or other evidentiary material.
It is granted only where that evidence is material and was not available and could not have been discovered or presented earlier.
If relief was fully explained to you and you had the chance to apply earlier, reopening on that basis will generally not be granted.

The windows

Every one of these is short.

30 calendar days — Form EOIR-26 must be received by the Board, counted from the oral decision or the mailing of a written one.
30 days — motion to reconsider, from the final administrative order.
90 days — motion to reopen based on new facts, from the final order. Some exceptions apply.
180 days — to reopen an in absentia order where the failure to appear was due to exceptional circumstances.
No deadline — to reopen an in absentia order where you did not receive proper notice, or were in federal or state custody through no fault of your own.
Immediately — tell the immigration judge you wish to appeal. Waiving it in the courtroom ends the option there and then.

How we work

Appellate work handled here, not referred out.

Strategic appellate advocacy, including appeals and post-decision relief, is part of this practice rather than something passed to another firm. Where the case was also handled here at the trial level, nobody has to learn the record twice.

Where the case comes to us after a decision by someone else, the first work is a hard read of the record: what was filed, what was not, what the judge actually said, and whether the argument you want to make is available on appeal or belongs in a motion.

An honest early answer matters more here than anywhere. If the record will not support an appeal, saying so quickly leaves time to consider what will — which often means rebuilding the evidentiary record rather than appealing. Bring the decision to a consultation as soon as you have it.

Bond decisions

Bond proceedings are separate from the main removal case, and evidence filed in one is not considered in the other unless it is filed there too. Either party may appeal a bond decision to the Board.

Common questions

Appeals, answered plainly.

Can I present new evidence on appeal?

Generally no. The Board reviews the decision on the record that was made before the immigration judge. New facts and new evidence are the territory of a motion to reopen, which has its own requirements and its own deadline.

What if I already waived my appeal in court?

Telling the judge you waive appeal makes the decision final. That does not automatically mean nothing can be done, but the available routes narrow considerably and they are time-limited. Get the record reviewed quickly rather than assuming either that it is fine or that it is hopeless.

Does filing an appeal stop me being removed?

The effect of a timely appeal on a removal order depends on the posture of your case, and it is not something to rely on from a general description. This is precisely the question to put to an attorney with your paperwork in front of them.

Is there a fee?

Yes. The Notice of Appeal must be accompanied by the appropriate filing fee or a completed fee waiver request, Form EOIR-26A. An appeal filed without either is not properly filed, and the thirty-day clock does not stop while that is sorted out.

Can the government appeal too?

Yes. Either party may appeal an immigration judge’s decision, so a favourable decision is not necessarily the end of the case either. The Department of Homeland Security has the same thirty-day window you do.

What can the Board actually review?

Certain decisions of the immigration judge, including determinations on removability, eligibility for relief, and bond. It cannot review decisions made in credible fear or reasonable fear reviews, or in claimed status review proceedings.

General information on this page reflects published guidance from the U.S. Department of Justice, Executive Office for Immigration Review at justice.gov/eoir, last updated 18 May 2026, together with the Immigration Court Practice Manual and the Board of Immigration Appeals Practice Manual. Deadlines and forms change. This page is general information, not legal advice, and it does not create an attorney-client relationship.

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