BIA Appeals
Board of Immigration Appeals Representation for CT & NY Clients
A negative immigration judge decision is not necessarily final. The Board of Immigration Appeals (BIA) provides a critical opportunity to correct legal errors, challenge unsupported credibility findings, and develop the record for federal court review. The firm handles every stage of the BIA process — from the 30-day EOIR-26 filing through full briefing — with the precision that appellate-level advocacy demands.
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BIA appeals — quick answer
An appeal from an immigration judge decision goes to the Board of Immigration Appeals (BIA) by filing Form EOIR-26 (Notice of Appeal) within 30 calendar days of the oral or written decision (8 CFR § 1003.38). This deadline is jurisdictional — there are no extensions. A timely EOIR-26 filing triggers an automatic stay of removal under 8 CFR § 1003.6(a). The BIA filing fee is $1,030 for appeals filed on or after February 1, 2026 (custody/bond appeals have no fee), waivable via Form EOIR-26A — though the BIA scrutinizes waiver requests closely. After the BIA rules, further review is available at the U.S. Court of Appeals for the Second Circuit (for CT and NY respondents) via a Petition for Review under INA § 242, also within 30 daysof the BIA's final order.
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Our Services
BIA Appeals Services We Provide
- Emergency EOIR-26 Notice of Appeal filing within the 30-day jurisdictional deadline
- Automatic stay of removal protection under 8 CFR § 1003.6(a) upon timely appeal
- Opening and reply brief drafting with full record citation and circuit-specific precedent
- BIA appeals of asylum denials, cancellation of removal, adjustment, and bond redeterminations
- Motion for extension of briefing schedule where additional time is needed
- Three-member panel en banc requests for cases warranting precedential review
- Coordination of Second Circuit Petition for Review after adverse BIA decision (INA § 242)
- Emergency stay of removal motions before the Second Circuit after BIA ruling
Our Process
How We Handle Your BIA Appeals Case
- 1
Record Review & Issue Identification
We review the complete administrative record — IJ decision, transcripts, all exhibits — to identify every preserved legal error, adverse credibility finding, and factual conclusion subject to BIA challenge.
- 2
EOIR-26 Filing Within 30 Days
We file Form EOIR-26 (Notice of Appeal) immediately to secure the jurisdictional deadline and the automatic stay of removal under 8 CFR § 1003.6(a). Time is the most critical factor at this stage.
- 3
Brief Development
We research controlling BIA and Second Circuit precedent, select the strongest issues for argument, draft a comprehensive opening brief with precise record citations, and respond to any DHS opposition.
- 4
Decision & Next Steps
After the BIA rules, we advise on next steps: acceptance of the decision, remand proceedings before the IJ, or a Petition for Review to the U.S. Court of Appeals for the Second Circuit under INA § 242.
Documents
What you'll need to file a BIA appeal
BIA appeals are entirely record-driven. The quality and completeness of the administrative record — assembled below the IJ — determines what legal issues can be raised on appeal.
- • Written IJ decision or transcript of the oral decision with the order of removal
- • Form EOIR-26 (Notice of Appeal) and Form EOIR-26A (fee waiver, if applicable)
- • Form EOIR-28 (Notice of Entry of Appearance) for the new or continuing attorney
- • Complete administrative record — Form I-589, exhibits, prior motions, and all IJ rulings
- • Transcripts of all immigration court hearings (ordered from EOIR)
- • Brief in support of appeal with Table of Authorities citing BIA and Second Circuit precedent
- • Motion for extension of briefing schedule if needed (filed promptly)
- • Updated country-conditions evidence (for asylum cases) as of the date of the appeal brief
- • Stay-of-removal motion package if Petition for Review is subsequently filed with Second Circuit
- • Motion for remand to introduce new evidence (where appropriate and procedurally proper)
Common pitfalls
Where BIA appeals are lost
Missing the 30-day jurisdictional deadline
The 30-day filing deadline under 8 CFR § 1003.38 is absolute. A late EOIR-26 is dismissed for lack of jurisdiction — the BIA has no equitable authority to excuse the delay. Acting immediately after an adverse IJ decision is non-negotiable.
Raising issues not preserved before the IJ
The BIA applies issue exhaustion: arguments not raised before the immigration judge are generally waived on appeal. Reviewing whether every viable argument was properly preserved below is the threshold analytical step before drafting the brief.
Failing to file a stay motion after a Petition for Review
Filing a Petition for Review with the Second Circuit does not stay removal under INA § 242(b)(3)(B). An emergency motion for a stay — separate from the PFR — must be filed promptly to prevent ICE from executing the removal order while federal review is pending.
Submitting new evidence on appeal
The BIA reviews the record made before the IJ — it does not take new evidence. Attempting to introduce new facts on direct appeal is procedurally improper and will be disregarded. New evidence requires a separate motion to reopen, not a BIA appeal.
Costs & fees
Filing fees for BIA appeals and federal court review
Government filing fees below. Attorney fees depend significantly on record length, number of hearings, complexity of legal issues, and whether federal court review follows. Schedule a consultation for a tailored quote.
Form EOIR-26 (BIA appeal)
$1,030
FY2026 amount under the 2025 reconciliation law, for filings on/after Feb 1, 2026. No fee for custody/bond appeals. Waivable via Form EOIR-26A — the BIA scrutinizes waiver requests closely.
Petition for Review (2d Cir.)
$600
28 U.S.C. § 1913; waivable via in forma pauperis motion
Attorney fees
Varies
Depends on record length, issue complexity, and whether Second Circuit review follows
By the numbers
The BIA receives tens of thousands of appeals each year and decides the vast majority on the written briefs alone — making brief quality the single most determinative factor in the outcome.
Per published EOIR statistics, most BIA appeals are decided by a single board member without oral argument. Only cases assigned to a three-member panel receive broader deliberation. For Connecticut and New York respondents, the Second Circuit reviewed hundreds of immigration Petitions for Review in recent years per published court statistics.
“[A] petition for review of a final order of removal ... must be filed not later than 30 days after the date of the final order of removal.”
— Immigration and Nationality Act § 242(b)(1), 8 U.S.C. § 1252(b)(1)
FAQ
BIA Appeals FAQ
What is a BIA appeal and when can I file one?
A BIA appeal is a request to the Board of Immigration Appeals (BIA/EOIR) to review a decision by an immigration judge (IJ). Under 8 CFR § 1003.38, a Notice of Appeal on Form EOIR-26 must be filed within 30 calendar days of the IJ's oral decision (or 30 days from the date a written decision is served). This deadline is jurisdictional — the BIA has no authority to accept a late filing, absent very limited exceptions. An appeal can challenge errors of law, errors of fact, and abuses of discretion. Common BIA appeals include denials of asylum, cancellation of removal, adjustment of status, and bond redeterminations.
Does filing a BIA appeal stop my removal?
Filing a timely Notice of Appeal (Form EOIR-26) with the BIA generally results in an automatic stay of removal under 8 CFR § 1003.6(a). This means that ICE cannot execute a removal order while the BIA appeal is pending. However, there are exceptions: certain criminal-alien categories may not receive an automatic stay, and the government can move to reinstate removal in some circumstances. Importantly, filing a Petition for Review with a U.S. Court of Appeals after a BIA decision does NOT automatically stay removal — a separate emergency motion for a stay must be filed with the court under INA § 242(b)(3)(B).
What is the briefing schedule for a BIA appeal?
After the BIA receives the appeal and the record is compiled, the BIA issues a briefing schedule. The appellant typically has 21 days from the date the record is forwarded to file an opening brief (8 CFR § 1003.3(c)). DHS then has 21 days to file a response brief. The appellant may file a reply brief within a shorter window. In practice, extensions are available by motion and are commonly granted for the first extension. The BIA decides most cases on the written briefs without oral argument — brief quality is therefore paramount.
What can the BIA do with my appeal?
The BIA has several options: (1) Affirm — uphold the IJ's decision, making it a final administrative order; (2) Reverse — reverse the IJ's ruling in the appellant's favor; (3) Remand — send the case back to the IJ for further proceedings, often to consider new evidence, apply a corrected legal standard, or conduct additional factfinding; or (4) Sustain — sustain the government's appeal in removal proceedings. The BIA may issue a decision through a single board member on Form I-292 (summary affirmance) or a three-member panel opinion (precedential or non-precedential) depending on the complexity and precedential value of the case.
What happens after the BIA issues its decision?
A final BIA order in a removal case may be reviewed by the appropriate U.S. Court of Appeals. Under INA § 242 (8 U.S.C. § 1252), a Petition for Review must be filed within 30 days of the BIA's final order. For noncitizens in Connecticut and New York, the reviewing court is the U.S. Court of Appeals for the Second Circuit. Filing the Petition for Review does not automatically stay removal — a separate motion for an emergency stay must be filed promptly.
What is the filing fee for Form EOIR-26 and can it be waived?
For appeals filed on or after February 1, 2026, the BIA filing fee for Form EOIR-26 is $1,030 — the $110 base fee plus a $920 fee added by the 2025 budget reconciliation law, adjusted for FY2026. Custody and bond appeals carry no fee. The fee may be waived by filing Form EOIR-26A, Application for Fee Waiver, demonstrating inability to pay — though the BIA scrutinizes waiver requests closely. The fee waiver is adjudicated by the BIA along with the Notice of Appeal. There is no fee for filing a reply brief or a motion for a briefing schedule extension. For a Petition for Review to the Second Circuit, a separate $600 filing fee applies under 28 U.S.C. § 1913, also waivable via an in forma pauperis motion. Verify current fees at justice.gov/eoir before filing.
What are the most common grounds for a successful BIA appeal?
Successful BIA appeals typically identify one or more of the following: (1) legal error — the IJ applied the wrong legal standard (e.g., wrong burden of proof, incorrect nexus analysis in asylum cases); (2) factual error — the IJ's adverse credibility finding or factual conclusions are not supported by substantial evidence; (3) due process violation — the respondent was denied a full and fair hearing; (4) failure to consider all the evidence; or (5) improper denial of a continuance or evidentiary ruling. Arguments raised for the first time on appeal (i.e., not raised before the IJ) are generally not considered by the BIA under the issue-exhaustion doctrine.
Frequently Asked Questions
BIA Appeals FAQ
Related Topics
Related Immigration Topics
- Immigration Appeals — Hub page covering BIA, AAO, and Second Circuit appeals
- Motions to Reopen — Alternative to appeal when new evidence exists or in absentia order was entered
- Deportation Defense — Trial-level removal proceedings before EOIR that BIA appeals arise from
- Asylum & Refugee — BIA and Second Circuit asylum appeal representation
- Schedule a Consultation — Speak with Attorney Musani about your BIA appeal options
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Get clear answers about your immigration case
Schedule a confidential consultation with M. Riaz Musani. Offices in West Hartford, CT and Latham, NY. Multilingual representation in five languages.