BIA Appeals

BIA Appeal: Frequently Asked Questions

1. What is a BIA appeal? A BIA appeal is a formal request for the Board of Immigration Appeals—the highest administrative body for interpreting and applying immigration laws—to review the decision made by an Immigration Judge. It is a review of the existing record rather than a new trial.
2. Did I lose my case forever? No. An appeal is your opportunity to challenge a judge’s decision if you believe a legal or factual error was made. If the appeal is successful, your case may be “remanded” (sent back) to the judge for further consideration or the decision may be overturned entirely.
3. How many days do I have to appeal? You generally have 30 calendar days from the date of the Immigration Judge’s oral decision or the mailing of a written decision to file a Notice of Appeal (Form EOIR-26) with the BIA. This is a strict deadline; if the BIA does not receive the notice by the 30th day, the judge’s order becomes final.
4. Can I stay in the U.S. while my appeal is pending? In most cases, filing a timely appeal stays (pauses) the execution of a removal order. This means you generally cannot be deported while the BIA is reviewing your case, provided the appeal was filed correctly and within the deadline.
5. Will I have to go back to court again The BIA appeal process is usually conducted entirely through written legal briefs. You will not typically appear in person before the Board. However, if the BIA sends your case back to the Immigration Judge, you will likely have to attend future court hearings.
6. Can I submit new evidence? Generally, no. The BIA only reviews the evidence that was already presented to the Immigration Judge. If new, life-changing evidence becomes available that was not previously discoverable, a “Motion to Remand” or “Motion to Reopen” must be filed instead of a standard appeal.
7. How long does a BIA appeal take? The timeline varies significantly based on the complexity of the case and the BIA’s current backlog. On average, it can take anywhere from 6 to 18 months for a decision to be reached.
8. What happens if I win the appeal? If you win, the BIA may reverse the judge’s decision or send the case back to the Immigration Court with specific instructions to correct the errors. This often gives you a second chance to seek the relief (such as asylum or cancellation of removal) that was originally denied.
9. What happens if I lose the appeal? If the BIA dismisses your appeal, the Immigration Judge’s removal order becomes final. However, you may still have the option to file a Petition for Review with the appropriate U.S. Court of Appeals within 30 days of the BIA’s decision.
10. Can I work while my appeal is pending? If you had a valid Employment Authorization Document (EAD) based on a pending application (like asylum), you may be eligible to renew your work permit while the case is on appeal.
11. Is a BIA appeal the same as asking the judge to reconsider No. A Motion to Reconsider is filed with the original Immigration Judge asking them to fix a mistake in their own decision. A BIA Appeal asks a higher court to review the judge’s work and find that they were wrong.
12. Can I be deported while my appeal is pending? As long as your appeal was filed on time, there is usually an “automatic stay” of removal. This prevents Immigration and Customs Enforcement (ICE) from deporting you until the BIA makes a final decision.
13. How much does a BIA appeal cost? The BIA charges a standard filing fee (currently $1030), unless a fee waiver is granted. This does not include the legal fees for an attorney to research and write the complex legal briefs required for a successful appeal.