4.11 - Withdrawing an Appeal

(a) Procedure

An appealing party may, at any time prior to the entry of a decision by the Board, voluntarily withdraw his or her appeal, with or without the consent of the opposing party. The withdrawal must be in writing and filed with the Board. The cover page to the withdrawal should be labeled “MOTION TO WITHDRAW APPEAL” and comply with the requirements for filing. See Chapter 3 (Filing with the Board), Appendix E (Sample Cover Pages).

(b) Untimely Withdrawal

If a withdrawal is not received by the Board prior to the Board’s rendering of a decision, the withdrawal will not be recognized, and the Board’s decision will become binding.

(c) Effect of Withdrawal

When an appeal is withdrawn, the decision of the Immigration Judge becomes immediately final and binding as if no appeal had ever been filed, and the alien is then subject to the Immigration Judge’s original decision. See 8 C.F.R. § 1003.4. Thus, if the alien appeals an Immigration Judge’s order of removal or deportation, and then withdraws the appeal, the DHS may at that point remove or deport the alien. If the alien appeals an Immigration Judge’s order in which the alien was granted voluntary departure, and then withdraws the appeal, the period of voluntary departure runs from the date of the Immigration Judge’s decision, not the date of the appeal’s withdrawal.

(d) Distinction from Motion to Remand

Parties should not confuse a motion to withdraw appeal with a motion to remand. The two motions are distinct from one another and have very different consequences. While a motion to withdraw appeal is filed by a party who chooses to accept the decision of the Immigration Judge, a motion to remand is filed by a party who wants the case returned to the Immigration Judge for further consideration. See Chapter 5.8 (Motion to Remand).

(e) Represented Aliens

If a represented alien wishes to withdraw an appeal, the alien’s representative should file the withdrawal. If a represented alien insists on filing the withdrawal himself or herself, the withdrawal should indicate whether it is being made with the advice and consent of the representative. The withdrawal should also be filed with Proof of Service on the alien’s representative. See Chapter 3.2(d) (Proof of Service), Appendix F (Sample Certificates of Service).