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Chapter 3 - Filing with the Board

3.1 - Delivery and Receipt

  (a) Filing — Most appeals and motions adjudicated by the Board are filed directly with the Board.  Some appeals and motions, however, are filed with DHS.  See Chapters 4.2(b) (Filing), 5.2 (Filing a Motion)7.3(a) (Filing)9.3(c)(2) (Where to file), Appendix J (Filing Motions).  No appeal, motion, correspondence, or other filing intended for the Board should ever be filed with an immigration court.

          (1) Receipt rule — For appeals and motions that must be filed with the Board, the appeal or motion is not deemed “filed” until it is received at the Board.  An electronic filing that is accepted by the Board will be deemed filed on the date it was submitted.  See 8 C.F.R. § 1001.1(dd).  A paper filing that is accepted by the Board will be deemed filed on the date it was received by the Board.  Id.  A filing that is rejected by the Board as an improper filing will not be deemed filed on the date it was submitted or received.  The Board does not observe the “mailbox rule.”  Accordingly, receipt by any other entity – be it the U.S. Postal Service, commercial courier, or detention facility – does not suffice.  See Chapter 1.5(a) (Office Location), Appendix A (Directory).

          (2) Postage problems — All required postage or shipping fees must be paid by the sender before an item will be accepted by the Board.  The sender is responsible for paying the proper postage in all instances.  When using a courier or similar service, the sender is responsible for properly completing the packing slip, including the label and the billing information.  The Board therefore rejects mailings for which the required postage has not been paid or the courier billing information has not been properly completed.  See Chapter 3.1(c)(1) (Meaning of “rejected”).

          (3) Where to file — All paper filings to the Board must be sent to the following street address:

Board of Immigration Appeals

Clerk’s Office

5107 Leesburg Pike, Suite 2000

Falls Church, VA 22041

The Board no longer uses different addresses for different means of delivery.  All mail sent through the U.S. Postal Service, courier, overnight delivery, or hand-delivered items must be addressed to the street address above.  See Appendix A (Directory).

An “attention” line indicating the intended recipient, if the name or office is known, should appear at the bottom left of the envelope or at the appropriate location on the mailing label or form.  Parties must use the correct postage on all items mailed to the Board.  See subsection (2), above.  The Board will not pay postage due, and the U.S. Postal Service will return any item with insufficient postage to the sender.

Given the importance of timely filing, the Board encourages parties to use courier and overnight delivery services, whenever appropriate.  However, the failure of a courier or overnight delivery service does not excuse parties from meeting filing deadlines.  See Chapter 3.1(b)(4) (Delays in delivery).

          (4) Separate envelopes — Unrelated cases should not be sent in one envelope.  To avoid confusion, each case should either be sent separately or, if mailed as a package, in its own envelope within that package.

          (5) Faxes — 

          (A) Sent directly to the Board — The Board does not accept facsimiles (“faxes”) without prior authorization.  Unauthorized transmissions are discarded without consideration of the document or notice to the sender.  Faxes transmitted directly to the Board will be accepted only when solicited by the Board in emergencies and other compelling circumstances.  See generally Chapter 6 (Stays and Expedite Requests).  Faxes must be sent to the attention of the person at the Board who authorized the fax.

          (B) Sent through a third party — Faxes that are sent to a third party, such as a local practitioner or a local delivery agent, and then hand-delivered to the Board are acceptable under the following conditions:

  • the original document must bear an original signature
  • the original document must be available to the Board upon request
  • the fax copy must be legible
  • the filing must clearly reflect that the submission comes from the practitioner of record or the party to the proceeding, not the practitioner  receiving the fax or the agent who is delivering it
  • fax header information will not be used to identify the filing party, the nature of the submission, or the timeliness of the submission
  • the filing party is always responsible for the filing’s legibility and timeliness

          Signatures are discussed at Chapter 3.3(b) (Signatures).

          (6) Electronic filing through ECAS — Electronic filing through ECAS is mandatory for attorneys and accredited representatives appearing as practitioners of record, as well as for DHS, in every case eligible for electronic filing.  Further instructions regarding the content and formatting for electronically filed documents is available in the ECAS User Manual.

          (b) Must be “Timely” — The Board places a date stamp on all paper filings received by the Clerk’s Office.  See Appendix A (Directory).  Similarly, all electronic filings through ECAS receive a watermark and date stamp when successfully uploaded.  Absent persuasive evidence to the contrary, the Board’s date stamp is controlling in the computation of whether a filing is “timely.”  Because paper filings are date-stamped upon arrival at the Board, the Board strongly recommends that parties filing in paper should file as far in advance of the deadline as possible and, whenever possible, use overnight delivery couriers (such as Federal Express, United Parcel Service, DHL, etc.) to ensure timely receipt.  More information on electronic filing through ECAS may found in the ECAS User Manual available on EOIR’s website.

          (1) Construction of “day” — All due dates at the Board are calculated in calendar days.  Thus, unless otherwise indicated, all references to “days” in this manual refer to calendar days, not business days.

          (2) Computation of time — For purposes of computing appeal and motion deadlines, time is measured from the date of the decision (or the mailing date of the decision, if later) to the date that the appeal or motion is received by the Board.

          When counting days, the day that the decision is made (or mailed) counts as “day 0.”  The day after the date the decision is made (or mailed) counts as “day 1.” Because the Board uses calendar days to calculate deadlines, Saturdays, Sundays, and legal holidays are counted toward the computation of a deadline.  If, however, a deadline date falls on a weekend or a legal holiday, the deadline is construed to fall on the next business day.

          (3) Specific deadlines — Specific deadlines for specific types of filings are discussed elsewhere.  See Appendix C (Deadlines).

          (4) Delays in delivery — Postal or delivery delays do not affect existing deadlines, nor does the Board excuse untimeliness due to such delays, except in rare circumstances.  Parties should anticipate all Post Office and courier delays, whether the paper filing is made through first class mail, priority mail, or any overnight or other guaranteed delivery service.  Delays caused by incorrect postage or mailing error by the sending party do not affect existing deadlines.  See Chapter 3.1(a)(2) (Postage problems).

          (5) ECAS system outages — 

(A) Electronic filing — System outages may occur that make electronic filing through ECAS unavailable and may impact filing deadlines.  Planned system outages will not impact filing deadlines since these can be proactively addressed by the parties.  If EOIR determines that an unplanned outage has occurred, filing deadlines that occur on the last day for filing in a specific case will be extended until the first day of system availability that is not a Saturday, Sunday, or legal holiday.  EOIR will maintain an ECAS Outage Log that will note planned and unplanned ECAS system outages. 

(B) Electronic payment — If the EOIR Payment Portal is unavailable due to a outage which results in an untimely filing, users should explain any such outage in their motion to accept untimely filing.

          (6) Natural or manmade disasters — Natural or manmade disasters may occur that create unavoidable filing delays.  Parties wishing to file untimely documents after a disaster must file a motion asking the Board to accept untimely filing.  See Chapter 3.1(c)(3) (Untimely).  Parties must include documentary evidence to support their motion, including such evidence as affidavits and declarations under the penalty of perjury.  The Board will consider each motion on a case-by-case basis.

(7) Effect of extension requests — All deadlines must be met.  A pending extension request does not excuse a party from meeting a filing deadline.  Unopposed requests are not automatically granted.  Extensions must be affirmatively granted before a filing will be accepted past the original deadline.  See Chapters 4.5 (Appeal Deadlines), 4.7(c) (Extensions).

          (c) Defective Filings — 

          (1) Meaning of “rejected” — When the Board “rejects” a paper filing, the filing is returned to the sender with a rejection notice explaining why the filing was rejected.  Similarly, when the Board “rejects” an electronic filing through ECAS, the filer receives an electronic rejection notice explaining why the filing was rejected.  The term “rejected” means that the filing is defective, and the Board cannot consider the filing.  It is not an adjudication of the filing or a decision regarding its content.

          (2) Improperly filed — If an appeal, motion, or brief is not properly filed, it is rejected by the Clerk’s Office and returned to the party with an explanation for the rejection.  A filing that is rejected by the Board as an improper filing is not deemed filed on the date it was submitted or received.  See 8 C.F.R. § 1001.1(dd).  Parties wishing to correct the defect and refile after a rejection must do so by the original deadline, unless an extension is expressly granted by the Board.  See Chapter 4.5(b) (Extensions), 4.7(c) (Extensions), 5.3 (Motion Limits).  The most common reasons for rejecting an appeal or motion are (A) failure to pay a fee or submit a fee waiver application when a fee is required, and (B) failure to submit a proof of service on the opposing party, which is always required.  See Chapters 3.2 (Service), 3.4 (Filing Fees), Appendix F (Cert. of Service).

          (3) Untimely — If an appeal is untimely, the appeal is dismissed.  See 8 C.F.R. §§ 1003.1(d)(2)(i)(G)1003.38(b).  If a motion is untimely, the motion is denied.  See 8 C.F.R. § 1003.2(b)(2)(c)(2).  If a brief is untimely, it is rejected and returned to the party with an explanation for the rejection.  Parties wishing to refile an untimely brief must file a motion asking the Board to accept the untimely brief and attach the original submission.  See Chapter 4.7(d) (Untimely Briefs).  Parties must include documentary evidence to support their motion, including such evidence as affidavits and declarations under the penalty of perjury.

          (d) Filing Receipts — The Board issues receipts for certain filings.  Whether or not a receipt is issued, however, parties are encouraged to obtain and retain corroborative documentation of delivery, such as mail delivery receipts and courier tracking information.  (As a precaution against loss, parties should also keep copies of all items sent to the Board.)

          (1) Receipt issued — The Board routinely issues receipts only for Notices of Appeal (Form EOIR‑26), motions to reopen, and motions to reconsider.  A receipt is not an adjudication of timeliness or a determination that a filing falls within the Board’s jurisdiction, but an acknowledgment that a filing has been received by the Board.  Parties who electronically file through ECAS will receive electronic notification upon successful upload and when the filing is added to the electronic record of proceedings.  This electronic notification is not an adjudication of timeliness or a determination that filing is within the Board’s jurisdiction.

If a filing receipt is not received within approximately two weeks, parties may call the Automated Case Information Hotline or visit the online EOIR Automated Case Information System for current information on appeals or contact the Clerk’s Office for current information on appeals or motions.  See Appendix A (Directory).

          (2) Receipt not issued — A receipt is not issued for filings other than Notices of Appeals, motions to reopen, and motions to reconsider.  The Board does not provide written receipts for other motions, briefs, or memoranda.  See Chapter 4.7(b) (Processing).  However, parties who electronically file through ECAS will receive electronic notification upon successful upload and when the filing is accepted and added to the electronic record of proceeding.  Such electronic notifications are not an adjudication of timeliness or a determination on a motion or request.

          (3) Conformed copies — When a filing arrives at the Clerk’s Office, a time-and-date stamp is placed on the filing.  If a filing party desires a “conformed copy” (i.e., a copy of the filing bearing the Board’s time-and-date stamp), the original must be accompanied by an accurate copy of the filing, prominently marked “CONFORMED COPY; RETURN TO SENDER.”  The filing must also contain a self-addressed stamped envelope or comparable return delivery packaging.  The Board does not return conformed copies without a prepaid return envelope or packaging.  If a case has an eROP, ECAS users may download electronic copies of filings with watermarked time-and-date stamps through ECAS.