When we think about appeals, we often think about the decisions – winning and losing.
But everything hinges on getting the thing filed correctly, and on time.
While getting an appeal on file with the BIA is a somewhat basic first step, the technical issues that arise at this stage can be the most disastrous. This post will focus on appeals of orders by Immigration Judges on form EOIR-26.
Before reading further, you should note that filing on your own can lead to serious problems. This area of the law is tricky, and the BIA can be unforgiving and cold. A late appeal will be rejected, and an appeal sent to the wrong place will be treated as if it was never sent at all. You should always consult a competent immigration attorney before proceeding with an appeal. If you already filed your appeal, you should consider getting help to file your brief. We represent immigrants on appeal before the BIA and would be happy to talk with you.
HOW TO FILE AN APPEAL
The first step in filing an appeal of an IJ’s decision is the form EOIR-26 notice of appeal, which must be received by the BIA no more than 30 days after the IJ issues her decision.
If the 30th day falls on a Saturday, Sunday, or federal holiday, then the EOIR-26 is due the next weekday. The EOIR-26 form is blue.
Filling Out the Form – Parts 1 through 12
The form itself is self-explanatory, but there are several important sections. In Part 1, you have to list all respondents’ names and A numbers.
Parts 2, 3, and 4 ask if you are filing the appeal for the “respondent/applicant,” whether the immigrant is detained, and the date and place the judge’s decision was made. The location of the judge makes a big difference, because it determines what federal Circuit Court of Appeal will be able to hear the case if the BIA denies the appeal.
Part 5 asks you to indicate whether this is an appeal of a “merits” decision, a “bond” decision, or a decision denying a motion to reopen or reconsider. Note that there is no place to designate whether you are filing an “interlocutory appeal.” Interlocutory appeals are accepted in some exceptional circumstances (which we’ll post more about later). If this is an interlocutory appeal, you should write that in bold at the top of the Part 5 box.
You also have to attach a copy of the IJ’s decision or order that you’re appealing. If the decision was issued orally, you should have received a summary order that you can attach.
Part 6 is possibly the most important and often skipped part of the notice of appeal. Even though you plan to write the most persuasive brief anyone has ever written, you still have to explain why you’re appealing in Part 6. Leaving this blank could get your appeal dismissed. And don’t just write anything – you have to provide at least an outline of the reasons you are appealing. This can be important if your brief is received by the BIA late, because the Board often rejects late briefs.
At the very least, if you’ve “exhausted” the issues you plan to cover in the EOIR-26, a court of appeals may be able to review them (Although the circuits are split on that question). Your right to take a denied BIA appeal to federal court begins with your having “exhausted” all of your issues with the Board – if you did not give the BIA a chance to rule on an issue, you can’t ask the federal courts to rule on that issue (with a few exceptions).
Some practitioners limit what they write in Part 6 so as not to put the DHS on notice of the issues you plan to brief, especially when the immigrant is detained and both parties’ briefs are due on the same day. While every case is different and should be analyzed separately, I think it is usually a good idea to state clearly what you’re appealing up front. Obfuscating this point leaves you open to not exhausting an issue if your brief is late, and because you show the BIA and the DHS that you have faith in the truth of your arguments by addressing them up front.
Parts 7 and 8 are self-explanatory. Tell the Board whether you are requesting oral argument (which the BIA will likely not grant) and whether you plan to file a brief (which you always should). However, if you tell the BIA you’re going to file a brief and then don’t file a brief, your appeal can be summarily dismissed.
Don’t forget to sign the form at Part 9. The BIA will dismiss the appeal if it isn’t signed (and unless you sent it super early, it will probably be too late to fix this mistake).
Parts 10 and 11 are mandatory – you have to give the BIA both the immigrant’s address and the attorney’s address. Part 12 requires that you serve a copy of the notice of appeal and any attachments on the DHS attorney for your region. DHS maintains a contact list here, but not all of the offices are included.
Pay the Fee
Finally, you have to pay the $110.00 filing fee or file a form EOIR-26A requesting a fee waiver. Failing to do one or the other will get your appeal dismissed. Payment is with either a check or a money order.
Other Considerations
Attorneys filing an appeal on behalf of an immigrant must file an EOIR-27, even if you have represented this same party before the BIA in another matter in the past and even if you currently have other appeals for the same person pending at the BIA.
Once the notice of appeal is filed, the BIA will mail a “receipt” which is our proof that we filed it on time and that it is pending. The Board will then begin preparing the transcript and then will send a briefing schedule.
[Note: This post should not be read as legal advice about your particular case. Of course every case is different and deserves particularized advice from an immigration attorney.]