What to Expect from Your BIA Appeal

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By: Bill Henry
PublishedMay 18, 2022
6 minute read

Losing your case in a U.S. immigration court might feel like the end of the world, but it doesn’t have to be. The doors will remain temporarily open if you file an appeal with the Board of Immigration Appeals. Filing a BIA appeal may be your last chance to keep your family together in the United States. This article outlines what to expect from the BIA appeals process.

Table of Contents

  1. What is the Board of Immigration Appeals?
  2. Your BIA Appeal
  3. Reserving Your Right to Appeal
  4. Filing Your Notice of Appeal
  5. BIA Appeal Brief
  6. What Happens Next
  7. Looking at a Successful BIA Appeal
  8. Let Us Help With Your BIA Appeal

Call an Immigration Attorney Today

Winning your BIA appeal is often an uphill battle. There is too much at stake for you to fight alone. You need the assistance of a skilled immigration attorney like the ones at Robinson & Henry, PC. Call 303-688-0944 today to begin your case assessment. If you would like to speak with us in Spanish, please call 720-359-2442. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

bia appeal

What is the Board of Immigration Appeals?

Located in Falls Church, Virginia, the Board of Immigration Appeals (BIA) is an administrative appellate court within the U.S. Department of Justice.

The BIA is responsible for reviewing U.S. immigration court decisions and certain actions of U.S. Citizenship and Immigration Services, U.S. Customs and Border Patrol, and U.S. Immigration and Customs Enforcement.

Your BIA Appeal

If you believe the immigration judge mistakenly denied you asylum or ordered your deportation, you can appeal that judge’s decision to the BIA. You will need to show the BIA that the judge made mistakes about the law or the facts of your case and that those mistakes were serious enough to lead to the wrong conclusion.

Just like you, the U.S. government has the right to appeal the immigration judge’s decision. This means you could still find yourself arguing your case in front of the BIA, even if the judge granted you the relief you requested.

Scope of Review

Since 2002, most cases have been decided by a single member of the BIA as opposed to the three-member panels of the past.

However, your case can still qualify for a three-member panel under certain circumstances. Those circumstances are:

  • Settling inconsistencies among the rulings of different immigration judges
  • Establishing a precedent construing the meaning of laws, regulations, or procedures
  • Reviewing a decision by an immigration judge or the Department of Homeland Security that does not conform to the law or any applicable precedents
  • Resolving an important national controversy
  • Reviewing a clearly erroneous factual determination by an immigration judge
  • Reversing the decision of an immigration judge or DHS
  • Resolving a complex, novel, unusual, or recurring issue of law or fact

    8 Code of Federal Regulations § 1003.1

Reserving Your Right to Appeal

If the judge issues an oral decision during court proceedings, you should declare your intent to appeal the decision at that time. This is called reserving your right to appeal.

Filing Your Notice of Appeal

You have 30 days from the date of the judge’s decision to file your Notice of Appeal or Form EOIR-26.

This means the BIA in Virginia must receive the Notice of Appeal by the 30th day. Mailing it within 30 days is not enough. If your EOIR-26 has not arrived in Virginia by Day 30, the BIA will not consider your appeal. The immigration judge’s decision will then become final.

All notices of appeal must be filed in English or accompanied by a certified English translation.

What to Include with Your Notice of Appeal

  • A cover letter outlining the documents in your appeal packet
  • Notice of Appeal form (Form EOIR-26)
  • Notice of Entry of Appearance as Attorney or Representative Before the BIA (Form EOIR-27)
  • Copy of the immigration judge’s order that you are appealing
  • BIA filing fee

It typically costs $110 to submit a Notice of Appeal to the BIA. You must include this with your application in the form of a check or money order payable to the U.S. Department of Justice.

If you cannot afford to pay the fee, you can file a Fee Waiver Request and submit it with your Notice of Appeal.

Preserving Issues in Your BIA Appeal

Question 6 on Form EOIR-26 asks you to specify the reasons for your BIA appeal. The BIA will only address the issues listed in the Notice of Appeal. So be as specific as possible and include all information that is relevant to your appeal. In other words, it is better to over-include than under-include.

This is your time to explain what you believe the immigration judge got wrong and why. You only need to provide enough information to make the issue clear.

You will go into greater detail about why you are appealing in your BIA appeal brief. Let’s take a look at what kind of information you should include in your BIA appeal brief in the section below.

BIA Appeal Brief

You generally will not have to appear in person before the BIA. Question 8 on Form EOIR-26 asks whether you intend to file a separate written brief after submitting your Notice of Appeal.

If you check yes, you will receive a briefing schedule and hearing transcript.

Be aware, however: If you check “yes” and you fail to file a timely brief, your BIA appeal can be summarily dismissed.

Once you get the briefing schedule, you will likely have 21 days to file your BIA appeal brief.

What to Include in the BIA Appeal Brief

Here is a basic outline for your BIA appeal brief:
  • Cover page
  • Table of contents
  • Pagination (page numbers): The BIA has a strict 25-page limit. For briefs longer than 25 pages, you must include a motion articulating why the BIA should accept a longer brief. However, in most instances it is best to stay within the 25-page limit.
  • Introduction
  • Concise statement of facts and procedural history of your case
  • Statement of issues presented for review
  • Standard of review
  • Summary of your argument
  • Your argument
  • A short conclusion spelling out the precise relief or remedy you are seeking
Statement of Facts

It is best to frame the facts in a compelling way, although not overly dramatic. Include only relevant facts and organize them chronologically. Be sure you have a citation to support every statement of fact.

Procedural History

This will answer questions such as:

  • When and where was your first hearing?
  • Who was the judge?
  • What was the judge’s decision?
Statement of Issues

This is where you outline each argument you want the BIA to decide. These issues should be listed in the order they appear in your argument.

Standard of Review

You will need to list the standard of review for each issue presented in your BIA appeal. In administrative law, the standard of review is the level of deference that a federal court affords to a lower court ruling or a determination from an administrative agency when reviewing a case on appeal.

If you are asking the BIA to review the judge’s findings of fact, the standard of review is “clearly erroneous.” This means the BIA will not overturn the judge’s finding unless it was so clearly wrong that it must be overturned.

If you are asking the BIA to review the judge’s conclusion, the standard of review is “de novo.” This means the BIA can view your case with fresh eyes.


This is the crux of your BIA appeal brief. Make sure you do the following:

  • the issue
  • what the law says about the issue
  • apply the law to your situation
  • restate your argument in a conclusion
Certificate of Service

You must submit a certificate of service along with the forms and fees. The certificate lets the court know that you are appealing the decision.

Filing the BIA Appeal Brief

You will mail your brief to the BIA just like you mailed your notice of appeal. As with your BIA appeal, it is not enough for your brief to be postmarked by the 21st day. It must arrive at BIA headquarters in Virginia by that time.

The DHS Gets a Chance to Respond

After you have filed your brief, the Department of Homeland Security will have the opportunity to respond to your arguments in its own written brief. They will also send you a copy.

What Happens Next?

Once the BIA has received briefs from both parties, it will issue a written decision on your case. Depending on the BIA’s decision, one of two things will happen:

1. BIA Concludes the Judge Made a Mistake 

If the BIA finds that the immigration judge made a mistake in denying your case, the BIA will send the case back to the immigration judge with specific instructions to make a new ruling in your case without making the same mistakes.

2. BIA Concludes the Judge Was Correct

If the BIA does not find any errors in the immigration judge’s decision to denying your case, your deportation order will be re-issued. At that time, you will either need to leave the U.S. or file an appeal in the appropriate federal court.

A Successful BIA Appeal Case

In 1991, a 40-year-old Afghanistan native was denied asylum and withholding of deportation by an immigration judge. The man appealed the decision.

The judge found that the man’s testimony might warrant a grant of asylum if his words could be accepted as true. However, the judge stated that he had “a great deal of trouble” accepting the applicant’s story as being candid, forthright, and completely truthful. In re B—, 21 I. & N. Dec. 66 (B.I.A. May 19, 1995)

On appeal, the applicant contended that he demonstrated both past persecution and a well-founded fear of future persecution in his initial hearing. Further, he claimed, the immigration judge was unable to point to any aspect of his demeanor other than his failure to look at him while testifying.

The BIA sided with the applicant and granted his request for asylum:
“The applicant’s testimony was consistent throughout, even though he was subjected to a probing cross-examination which, as measured by pages in the transcript, was over twice as long as the direct examination. This testimony, in turn, was entirely consistent with the applicant’s detailed Request for Asylum in the United States (Form I-589), submitted 3 months before the hearing. It is also significant that the applicant’s story was not embellished during his repeated relating of events.”

In re B—, 21 I. & N. Dec. 66 (B.I.A. May 19, 1995)

Let Us Help With Your BIA Appeal

Filing a BIA appeal is typically a long, frustrating process. Fortunately, the immigration attorneys at Robinson & Henry, PC are here for the long haul. We will help you meet deadlines, formulate your argument, and gather evidence to support your claims. Call 303-688-0944 today to begin your case assessment. If you would like to speak with us in Spanish, please call 720-359-2442. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

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