4.4 - Filing an Appeal

(a) Rules for Filing — An appeal must be filed in accordance with the general rules for filing.  See Chapter 3.1 (Delivery and Receipt).  For the order in which documents should be filed, see Chapter 3.3(c)(1)(A) (Appeals).

          (b) Notice of Appeal — For any appeal of an immigration judge decision, a completed and executed Notice of Appeal (Form EOIR‑26) must be timely filed with the Board.  See Chapter 4.5 (Appeal Deadlines).  See also 8 C.F.R. § 1003.3(a)(1).  Parties must read carefully and comply with the instructions on the Notice of Appeal (Form EOIR‑26).

          (1) When to file — See Chapter 4.5 (Appeal Deadlines).

          (2) Where to file — For appeals of immigration judge decisions, the Notice of Appeal (Form EOIR‑26) must be filed with the Board. It may not be filed with DHS or an immigration court.  Filing an appeal of an immigration judge decision with DHS or an immigration court will not be accepted as proper filing with the Board.  See Chapter 1.6(d) (Mail and other forms of delivery).

          (3) How many to file — A single Notice of Appeal (Form EOIR‑26) must be filed for each respondent who is appealing the decision of an immigration judge, unless the appeal is from proceedings that were consolidated by the immigration judge.  See Chapters 4.3(a) (Parties to an Appeal), 4.10(a) (Consolidated Appeals).  Only the original Notice of Appeal must be filed.  Additional copies of the Notice of Appeal need not be submitted.

          (4) Completing the Notice of Appeal — For appeals of immigration judge decisions, the Notice of Appeal (Form EOIR‑26) contains instructions on how to complete the form.  Parties should be careful to complete the form accurately and completely.

          (A) A-numbers — The A-number of every person included in the appeal should appear on the form.

          (B) Important data — The party appealing should make sure the form is completed in full, including the parts of the form that request the date of the immigration judge’s oral decision or written order, and the type of proceeding (removal, deportation, exclusion, asylum, bond, denial of a motion to reopen by an immigration judge, or denial of a motion to reconsider by an immigration judge).

          (C) Brief in support of the appeal — The appealing party must indicate on the Notice of Appeal (Form EOIR‑26) whether or not a brief will be filed in support of the appeal.  If a party indicates that a brief will be filed and thereafter fails to file a brief, the appeal may be summarily dismissed.  See Chapters 4.7(e) (Decision not to File a Brief), 4.16 (Summary Dismissal).  The Board strongly encourages the filing of briefs.  See Chapter 4.6 (Appeal Briefs).

          (D) Grounds for the appeal — Space is provided on the Notice of Appeal for a concise statement to identify the grounds for the appeal.  The statement of appeal is not limited to the space on the form but may be continued on additional sheets of paper.  Any additional sheets, however, should be attached to the Notice of Appeal (Form EOIR‑26) and labeled with the name and A-number  of everyone included in the appeal.

Parties are advised that vague generalities, generic recitations of the law, and general assertions of immigration judge error are unlikely to apprise the Board of the reasons for appeal.

          (E) Summary dismissal — If neither the Notice of Appeal (Form EOIR‑26) nor the documents filed with it adequately identify the basis for the appeal, the appeal may be summarily dismissed.  See Chapter 4.16(b) (Failure to Specify Grounds for Appeal).  If a party indicates on the Notice of Appeal that a brief will be filed in support of the appeal and thereafter fails to file a brief, the appeal may be summarily dismissed.  See Chapter 4.7(e) (Decision not to File a Brief).  There are other grounds for summary dismissal.  See 8 C.F.R. § 1003.1(d)(2).  See also Chapter 4.16 (Summary Dismissal).

(5) Mistakes to avoid — 

          (A) Mixing unrelated appeals — Parties and practitioners should not “mix” unrelated appeals on one Notice of Appeal (Form EOIR-26).  Each immigration judge decision must be appealed separately.  For example, one Notice of Appeal should not combine the appeal of a bond determination and the appeal of an immigration judge decision regarding eligibility for relief.  See Chapter 7.3(a)(1) (Separate Notice of Appeal).  The appealing party should attach a copy of the decision being appealed to the Notice of Appeal.

          (B) Using the Notice of Appeal for motions — A Notice of Appeal (Form EOIR‑26) may not be used to file a motion with the Board.  See Chapter 5 (Motions before the Board).

          (C) Using the Notice of Appeal to appeal to a federal court — A Notice of Appeal (Form EOIR‑26) may not be used to challenge a decision made by the Board.  In this instance, the proper filing is a motion to reconsider with the Board or an action in the appropriate United States district or circuit court.

          (c) Proof of Service — The Certificate of Service portion of the Notice of Appeal (Form EOIR‑26) must be completed.  See Chapter 3.2(d) (Proof of Service).

          (d) Fee or Fee Waiver — The appeal must be accompanied by the appropriate filing fee, fee receipt, or a completed Fee Waiver Request (Form EOIR‑26A).  8 C.F.R. §§ 1003.3(a)(1), 1003.8.  See Chapter 3.4 (Filing Fees).

          (e) Notice of Appearance — If a party is represented by a practitioner of record or has received assistance from a practitioner with the drafting, completion, or filling in of blank spaces of a Notice of Appeal (Form EOIR-26), a Notice of Appearance (Form EOIR-27) or Notice of Limited Appearance (Form EOIR-60), respectively, must accompany the Notice of Appeal.  See Chapter 2.1 (Representation and Appearances Generally), 3.3(b) (Signatures), 4.3(c) (Representation).

          (f) Copy of Order — Parties are encouraged to include a copy of either the memorandum order of the oral decision or the written decision being appealed.

          (g) Confirmation of Receipt — The Board routinely issues receipts for Notices of Appeal (Form EOIR‑26).  The Board does not provide receipts for appellate briefs or supplemental filings, aside from any ECAS filing notifications.  See Chapter 3.1(d) (Filing Receipts).