The Board of Immigration Appeals (BIA) hears appeals from decisions by immigration judges.1 This contrasts with determinations made by officers from U.S. Citizenship and Immigration Services (USCIS), which must be usually appealed to the Administrative Appeals Office (AAO).
Matters that can be appealed to the BIA include, among others:
- Final removal (deportation) orders,
- Denial of asylum, and
- Withholding of removal cases.
The appeal must be requested within 30 calendar days of the date of the immigration judge’s decision.
To help you better understand Board of Immigration Appeals proceedings, our California immigration lawyers discuss the following, below:
- 1. What is the Board of Immigration Appeals?
- 2. What types of decisions can I appeal to the BIA?
- 3. What matters does the Board not review?
- 4. How do I appeal an immigration judge’s decision?
- 5. How long do I have to request an immigration appeal?
- 6. Can I represent myself before the Board of Immigration Appeals?
- 7. What do I need in order to file an appeal?
- 8. How are proceedings conducted before the BIA?
- 9. How much does it cost to appeal an immigration decision?
- 10. What if I cannot afford the filing fee?
- 11. What if I cannot afford a lawyer?
- 12. How long does an immigration appeal take?
- 13. Can I obtain a stay if I have been ordered deported?
- 14. Can I appeal further if I lose at the Board of Immigration Appeals?
1. What is the Board of Immigration Appeals?
The Board of Immigration Appeals (BIA) is the highest administrative agency for interpreting and applying immigration laws. It is part of the U.S. Department of Justice.
The BIA hears appeals from decisions by immigration judges and, in some cases, Department of Homeland Security (DHS) officials.2
It does not hear appeals of decisions made by the U.S. Citizenship and Immigration Services (USCIS), which must be usually appealed to the Administrative Appeals Office (AAO).
The Board of Immigration Appeals is located in Falls Church, Virginia, which is within the metropolitan Washington, D.C. area. However, appellants do not need to appear in person.
2. What types of decisions can I appeal to the BIA?
The Board of Immigration Appeals can review most decisions of immigration judges (other than credible fear and reasonable fear determinations).
Matters the BIA can review include, without limitation:
- Removal, deportation, and exclusion orders (with some limitations on decisions involving voluntary departure);3
- Asylum;
- Withholding of removal / deportation,
- Exclusion of aliens applying for admission to the U.S.,
- Petitions to classify the status of alien relatives for the issuance of preference immigrant visas,
- Motions to reopen and reconsider prior decisions, and
- Denial of bond or parole.
The BIA also hears appeals of Department of Homeland Security (DHS) decisions concerning:
- Family-based immigrant petitions,
- Waivers of inadmissibility,4 and
- Some DHS administrative fines and penalties.
3. What matters does the Board not review?
The Board generally does not have the authority to review decisions not rendered by immigration judges. Some common examples of matters that can’t be appealed to the BIA include:
- Direct appeals from persons removed / deported “in absentia”;5
- Credible fear determinations, whether made by an asylum officer or an immigration judge;
- Reasonable fear determinations made by an immigration judge; or
- Most visa petitions, including employment-based immigrant visa petitions & K-1 fiancé/fiancée petitions.
The Board also cannot review DHS denials of applications for adjustment of status.
These appeals are usually made to the Administrative Appeals Office or sometimes to the agency that rendered the original decision.
4. How do I appeal an immigration judge’s decision?
During the immigration court process, the immigration judge will render a decision. Both the government and the immigrant have the right to appeal it.
If the judge renders an unfavorable decision at the hearing, he or she will ask if the immigrant wishes to appeal the ruling. If the immigrant does not want to appeal, the government can begin the deportation process immediately (in a removal case).
If the immigrant thinks he or she would like to appeal the immigrant should tell the judge he or wishes to appeal. Or the immigrant can simply tell the judge that he or she wishes to reserve the right to appeal.
5. How long do I have to request an immigration appeal?
Either party may appeal the immigration judge’s decision to the BIA within 30 calendar days of the immigration judge’s decision. The Notice of Appeal (along with payment or a waiver request) must actually be RECEIVED by the BIA within this 30-day period — not just postmarked.
Because these are calendar days, and not business days, weekends and holidays count for purposes of calculating the 30-day period.
However, if the deadline falls on a weekend or a legal holiday, the due date is the next business day.
To be safe, it is best to send the Notice by overnight delivery or certified mail well in advance of the deadline.
6. Can I represent myself before the Board of Immigration Appeals?
Immigrants have the right to represent themselves during an appeal. However, appeals have strict rules that must be followed to the letter.
In addition, the BIA is bound by precedential decisions and court cases that often must be carefully researched and argued.
Most immigrants are better off, therefore, having a lawyer handle their immigration appeal.
Note additionally that the Notice of Appeal must be completed in English or the appeal will be dismissed.
7. What do I need in order to file an appeal?
If the immigrant was not represented by a lawyer during the initial immigration case, the judge will give the immigrant an informational guide which contains forms for filing an appeal.
The immigrant should also get a business card (or mailing address) from the Department of Homeland Security lawyer. The immigrant will need this address in order to serve the DHS with the Notice of Appeal and other documents.
If you hire a lawyer to handle your appeal, your lawyer can serve these papers for you. Just remember that the Notice of Appeal must be received by the BIA within 30 days so you should not delay in contacting a lawyer.
8. How are proceedings conducted before the BIA?
Generally, the BIA does not conduct courtroom proceedings. It decides appeals by a “paper review” of cases.
On rare occasions, the BIA will agree to hear oral arguments. These will usually take place at the Board’s Virginia headquarters.
9. How much does it cost to appeal an immigration decision?
The current BIA filing fee for most immigration appeals is $110.
However, there is no fee for appealing a bond or an appealable asylum request.
All Notices of Appeal must be accompanied by EITHER:
- A valid check or money order for the exact amount of the filing fee, or
- A fee waiver request (discussed below).
Checks and money orders must be drawn on a U.S. financial institution and be made out to the United States Department of Justice. If a check does not clear, the filing will be rejected. Accordingly a money order is a safer option.
Note that the filing fee does not include the services of a lawyer.
10. What if I cannot afford the filing fee?
An immigrant who cannot afford the fee can send a BIA Appeal Fee Waiver Request (Form EOIR-26A) with the Notice of Appeal.
Fee waivers are not granted automatically. The applicant must show economic hardship or incapacity. On the form, the applicant will be asked to disclose his or her monthly income and expenses.
These are representations made under pain of perjury. Lying on a fee waiver application can result in criminal prosecution.
11. What if I cannot afford a lawyer?
The U.S. Department of Justice maintains a list of pro bono legal service providers.
Pro bono lawyers are those who have committed to providing at least 50 hours per year of free legal services in the immigration courts where their offices are located.
You may also be able to find a free or low-cost lawyer through your local bar association — for example, the Los Angeles County Bar Association’s Immigration Legal Assistance Project.
Immigrants also have the right to represent themselves (though this is not recommended). For further information, see the Board of Immigration Appeals Practice Manual.
12. How long does an immigration appeal take?
Appeals to the Board of Immigration Appeals usually take between 6 months and one year. But they can take longer if the case is particularly complex or the Board has many pending appeals.
13. Can I obtain a stay if I have been ordered deported?
An alien who has been ordered deported may be able to obtain a stay while an appeal to the BIA is in process. A stay is an order that prevents DHS from executing an order of removal, deportation or exclusion.
Some stays are granted automatically while the appeal is in process. For instance, the BIA will automatically issue a stay when an immigrant appeals tan immigration judge’s decision on the merits of the case (as opposed to a procedural technicality).
In other cases, a stay is “discretionary” and must be requested by a petition.
If an alien is in physical custody and about to be deported the BIA can decide the issue immediately with an “emergency” stay request.
Otherwise, the BIA will consider a stay request during the normal course of deciding the appeal.
A “non-emergency” stay request may be supplemented by an emergency stay request if the alien reports to DHS custody for deportation while his or her case and stay request are pending.
14. Can I appeal further if I lose at the Board of Immigration Appeals?
Most BIA decisions are subject to further appeal in the United States Court of Appeals.
In California, BIA decisions are appealed to the United States Court of Appeals for the Ninth Circuit.
California has two 9th Circuit courts – one in the Los Angeles area and one in San Francisco. They are located at:
The Richard H. Chambers Courthouse
125 South Grand Avenue,
Pasadena, CA 91105
Phone: (626) 229-7250
The James R. Browning Courthouse
95 7th Street,
San Francisco, Ca 94103
Phone: (415) 355-8000
Appeals to the federal court must be filed within 30 calendar days from the date of the BIA’s decision.
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Legal references:
- 8 CFR § 1003.1.
- Same.
- 8 CFR §1003.1(b).
- See Immigration and Nationality Act (“INA”) § 212(d)(3)(A)(ii).
- A case is heard “in absentia” when the immigrant is not present due to having been deported. See INA § 240(b) and former INA § 242B.