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BIA Practice Manual

BIA Practice Manual
Chapter 4 - Appeals of Immigration Judge Decisions

4.6 - Appeal Briefs

(a) Filing

An appeal brief must comply with the general requirements for filing. See Chapter 3.1 (Delivery and Receipt). The appeal brief must be timely. See Chapter 4.7 (Briefing Deadlines). It should have a cover page. See Appendix E (Sample Cover Pages). The briefing notice from the Board should be stapled on top of the cover page or otherwise attached to the brief in accordance with the instructions on the briefing notice. The brief must be served on the other party. See Chapter 3.2(d) (Proof of Service). There is no fee for filing a brief.

     (1) Appeals from Immigration Judge decisions - For appeals from Immigration Judge decisions, the appeal brief must be filed directly with the Board.  8 C.F.R § 1003.3(c)(1).

     (2) Appeals from Department of Homeland Security decisions - For appeals from decisions of the Department of Homeland Security, the brief should be filed with DHS, not the Board, and in accordance with the instructions on the appeal form.

(b) Brief-Writing Guidelines

A brief advises the Board of a party’s position and arguments. A well-written brief is in any party’s best interest and is therefore of great importance to the Board. The brief should be clear, concise, well-organized, and should cite the record and legal authorities fully, fairly, and accurately.

Briefs should always recite those facts which are appropriate and germane to the adjudication of the appeal, and should cite proper legal authority, where such authority is available. See Chapter 4.6(d) (Citation). Briefs should not belabor facts or law that are not in dispute. Parties are encouraged to expressly identify in their briefs when they agree with the Immigration Judge’s recitation of facts or law.

Briefs should always be paginated. Parties must limit the body of their briefs or motions to 30 pages unless otherwise directed by the Board. In computing the length limit, headings, footnotes, and quotations count toward the limit. In addition, regardless of the descriptive heading, the page count toward the page limit includes any statement of facts and procedural history, statement of issues presented for review, standard of review, summary of the argument, argument, and conclusion. By contrast, the following items do not count toward the page limit:

  • cover page;
  • table of contents;
  • table of citations;
  • signature block;
  • certificate / proof of service;
  • addendum containing statutes, rules, regulations, or case law; and
  • supporting documentation.

Oversized briefs unnecessarily burden the Board. Motions to accept briefs that exceed the page limitation established by the Board are disfavored and will not be granted absent a showing of extraordinary and compelling circumstances. If a party files an oversized brief, the brief should be accompanied with a written motion entitled “MOTION TO EXTEND PAGE LIMIT” that generally complies with the rules and procedures for motions and filings. See Chapter 3 (Filing with the Board), Chapter 5.2 (Filing a Motion). Thus, the motion and brief need to be submitted together. If an oversized brief is filed without a motion to extend the page limit, the brief will be rejected.

Motions to extend the page limit also should include a statement of reasons for exceeding the page limitation that demonstrates extraordinary and compelling reasons. Note that stating that a case involves asylum law or complex legal issues is not sufficient. If the motion is granted, the motion and brief are incorporated into the record, and the brief is considered by the Board. If the motion is denied, the motion is retained as part of the record, but the brief is removed without consideration. In either case, the parties are notified of the Board’s decision. Motions to reconsider denials will not be considered.

(c) Format

Briefs should comport with the requirements set out in Chapter 3.3 (Documents).

     (1) Signature - Briefs should be signed by the person who prepared the brief. See Chapter 3.3(b) (Signatures). If prepared by a registered attorney or accredited representative, the EOIR ID number should also be provided. See Chapter 2.1(b)(2) (Registry Requirement).

     (2) A number - The alien registration number (“A number”) of each alien should appear on the cover page of the brief and on the bottom right corner of each page thereafter.

If an alien has more than one alien registration number assigned to him or her, then every alien registration number should appear on the cover page of the brief.

If a brief is filed in a consolidated appeal and a comprehensive listing of alien registration numbers is impractical on every page, the first page of the brief should contain the name and alien registration number of every alien included in the appeal. The alien registration number of the lead alien, followed by “et al.”, should appear as a footer on the bottom right corner of each page thereafter. See Chapter 4.10(a) (Consolidated appeals).

Unrelated proceedings should not be addressed in the same brief, unless proceedings have been consolidated by the Immigration Judge or the Board. If proceedings have been consolidated, this should be stated in the introductory portion of the brief. If proceedings have not been consolidated, a separate brief should be filed for each individual case. If a party wishes unrelated appeals to be considered together (but not consolidated), this may be requested in the introductory portion of the brief. See Chapter 4.10 (Combining and Separating Appeals).

     (3) Caption - Parties should use captions and cover pages in all filings. See Chapter 3.3(c)(6) (Cover page and caption), Appendix E (Cover Pages).

     (4) Recommended contents - The following items should be included in the brief:

  • a concise statement of facts and procedural history of the case
  • a statement of issues presented for review
  • the standard of review
  • a summary of the argument
  • the argument
  • a short conclusion stating the precise relief or remedy sought

     (5) References to parties - To avoid confusion, use of “appellant” and “appellee” is discouraged. When litigation titles are desired or necessary, the following guidelines should be followed:

  • removal proceedings:  the alien is referred to as “respondent”
  • deportation proceedings:  the alien is referred to as “respondent”
  • exclusion proceedings:  the alien is referred to as “applicant”
  • bond proceedings:  the alien is referred to as “respondent”
  • visa petition proceedings:  the sponsoring individual or entity is referred to as “petitioner” and the alien being petitioned for is referred to as “beneficiary”
  • all proceedings:  the Immigration Judge should be referred to as “the Immigration Judge”
  • all proceedings:  the Department of Homeland Security should be referred to as “DHS” or “Department of Homeland Security”

Care must be taken not to confuse DHS with the Immigration Court or the Immigration Judge. See Chapter 1.4(f) (Department of Homeland Security).

Complete names, titles, agency designations, or descriptive terms are preferred when referring to third parties.

     (6) Statement of facts - A brief’s statement of facts should be concise. If facts are not in dispute, the brief should simply and expressly adopt the facts as set forth in the decision of the Immigration Judge. If facts are in dispute or, in the party’s estimation, are insufficiently developed in the decision of the Immigration Judge, the party’s brief should set out the facts clearly and expressly identify the points of contention.

Facts, like case law, require citations. Parties should support factual assertions by citation to the record. When referring to the record, parties should follow Chapter 4.6(d) (Citation). Sweeping assertions of fact that are made without citation to their location in the record are not helpful. Likewise, facts that were not established on the record may not be introduced for the first time on appeal. Matter of Fedorenko, 19 I&N Dec. 57 (BIA 1984).

The Board admonishes all parties:  Do not misstate or misrepresent the facts or omit unfavorable facts that are relevant to the adjudication of the appeal. A brief’s accuracy and integrity are paramount to the persuasiveness of the argument and the proper adjudication of the appeal.

     (7) Footnotes - Substantive arguments should be restricted to the text of the brief. Excessive use of footnotes is discouraged.

     (8) Headings and other markers - The brief should employ headings, subheadings, and spacing to make the brief more readable. Short paragraphs with topic sentences and proper headings facilitate the coherence and cohesion of an argument.

     (9) Chronologies - A brief should contain a chronology of the facts, especially in those instances where the facts are complicated or involve several events. Chart or similar graphic representations that chronicle events are welcome.

     (10) Multiple briefs - The Board prefers that arguments in an appeal brief not incorporate by cross-reference arguments that have been made elsewhere, such as in a pretrial brief or motion brief. Whenever possible, arguments should be contained in full in the appeal brief.

(d) Citation

Parties are expected to provide complete and clear citation to all authorities, factual or legal. The Board asks all parties to comply with the citation conventions articulated here and in Appendix I (Citation Guidelines).

     (1) Board decisions (precedent) - In the past, the Board issued precedent decisions in slip opinion or “Interim Decision” form. See Chapter 1.4(d)(1)(C) (Interim Decisions). Citations to the Interim Decisions form are now greatly disfavored.

Precedent Board decisions are published in an “I&N Dec.” form. See Chapter 1.4(d) (Board Decisions). Citations to Board decisions should be made in accordance with their publication in Administrative Decisions Under Immigration & Nationality Laws of the United States. The proper citation form includes the volume number, the reporter abbreviation (“I&N Dec.”), the first page of the decision, the name of the adjudicator (BIA, A.G., etc.), and the year of the decision. Example: Matter of Gomez-Giraldo, 20 I&N Dec. 957 (BIA 1995).

All precedent decisions should be cited as “Matter of.”  The use of “In re” is not favored. Example: Matter of Yanez, 23 I&N Dec. 390 (BIA 2002), not In re Yanez, 23 I&N Dec. 390 (BIA 2002).

Citations to a specific point in a precedent decision should include the precise page number(s) on which the point appears. Example:  Matter of Artigas, 23 I&N Dec. 99, 100 (BIA 2001).

Citations to a separate opinion in a precedent decision should include a parenthetical identifying whether it is a dissent or concurrence. Example: Matter of Artigas, 23 I&N Dec. 99, 109-110 (BIA 2001) (dissent).

     (2) Board decisions (non-precedent) - Citation to non-precedent Board cases by parties not bound by the decision is discouraged. When it is necessary to refer to an unpublished decision, the reference should include the initials of the alien’s full name separated by hyphens, alien registration number (“A-Number) with all but the last three digits of the number replaced with X’s, and a parenthetical containing the abbreviation “BIA” as the adjudicating body, as well as an abbreviation of the month as part of the precise date of the decision. Because the Board uses “Matter of” as a signal for a published case, do not use “Matter of”. Example:  John Jonathan Smith, A123-456-789, BIA 12/20/2020 would become J-J-S, AXXX-XXX-789 (BIA Dec. 20, 2020).

Where an unpublished Board decision is obtained from EOIR’s FOIA Reading Room, the citation should be placed within a parenthetical containing the assigned Folder Name (also known as Title or File number assigned to Download Folder), the abbreviation “BIA” as the adjudicating body, and an abbreviation of the month as part of the precise date of the decision. As noted above, because the Board uses “Matter of” of as a signal for published or precedent case, do not use “Matter of”. Example:  Folder Name 1234567, Decision Date 10/2/2023 would become (1234567, BIA Oct. 2, 2023).

A copy of the decision should be provided whenever possible. See Chapter 1.4(d)(2) (Unpublished Decisions).

     (3) Attorney General (precedent) - When the Attorney General issues a precedent decision, the decision is published in the Administrative Decisions Under Immigration & Nationality Laws of the United States. Attorney General precedent decisions should be cited in accordance with the same rules set forth in subsections (1) and (2), above.

     (4) Department of Homeland Security (precedent) - Certain precedent decisions of the Department of Homeland Security, as well as those of the former Immigration and Naturalization Service, appear in the Administrative Decisions Under Immigration & Nationality Laws of the United States. These decisions should be cited in accordance with the same rules set forth in subsections (1) and (2), above.

     (5) Federal and state court cases - Federal and state court decisions should be cited according to standard legal convention, as identified by the latest edition of A Uniform System of Citation, commonly known as the “Blue Book.”  If the case being cited is unpublished, a copy of that case should be provided.

     (6) Statutes, rules, regulations, and other legal authorities and sources - Statutes, rules, regulations, and other standard sources of law should be cited according to standard legal convention, as identified by the latest edition of A Uniform System of Citation, commonly known as the “Blue Book.”  Sources of law or information that are peculiar to immigration law (e.g., the Foreign Affairs Manual) should be cited according to the convention of the immigration bar or cited in such a way as to make the source clear and accessible to the reader. Where citation is made to a source that is not readily available to the Board or the other party, a copy should be attached to the brief. See Chapter 3.3(e) (Source materials).

     (7) Transcript of proceedings - If an argument on appeal is based on an error in fact, procedure, or conduct that is manifested in the transcript, the Notice of Appeal or brief should provide citations to the transcript. Passages in the transcript of proceedings should be cited according to page number:  “Tr. at _____.”  Line citations are welcome, but not necessary.

Where a transcript is not prepared, the audio recording should be cited as “Hearing for” and include the alien’s name, the alien registration number (“A number”), and the date and time of the hearing. Example:  “Hearing for John Smith, A012 345 679, February 11, 2014 at 1:00 p.m.” If a party obtains a compact disk (“CD”) of a hearing that was digitally recorded, the numbered tracks of the CD should not be cited. Rather, the relevant portion of the recording should be quoted in the citing party’s brief, identifying what portion of the hearing the quotation took place (e.g., direct examination, cross-examination). See Chapter 4.2(f) (Transcription).

     (8) Decision of the Immigration Judge - If an argument on appeal is based on an error in the Immigration Judge’s decision, the decision of the Immigration Judge, whether rendered orally or in writing, should be cited as “I.J. at _____.” If the reference is to a decision other than the decision being appealed, the citation should indicate the nature of the proceeding and the date. Example: “I.J. bond decision at 5 (Jan. 3, 2023).”

     (9) Text from briefs - Text from the alien’s brief should be cited as “Applicant’s brief at _____” or “Respondent’s brief at _____”, whichever is appropriate. Text from the DHS brief should be cited as “DHS brief at _____.”

     (10) Exhibits - Exhibits designated during the hearing should be cited as they were designated by the Immigration Judge. Example: “Exh. _____.”  Exhibits accompanying an appeal, brief, or motion should identify the exhibit and what it is attached to. Example: “Motion to Reopen Exh. 2.”

     (11) Certified record - When a decision of the Board is reviewed by a federal court, the Board provides that court with a certified copy of the record before the Board. See Chapter 1.4(h) (Federal Courts). The Board does not cite to the certified record in subsequent proceedings, and neither should the parties. Parties should instead follow the citation conventions discussed in the subsections above.

(e) Consolidated Briefs

Where cases have been consolidated, one brief may be submitted on behalf of all the aliens in the consolidated proceeding, provided that every alien’s full name and alien registration number (“A number”) appear on the consolidated brief. See generally Chapters 4.6(c)(2) (A number), 4.10(a) (Consolidated appeals). A consolidated brief may not be filed if the cases have not been consolidated by the Board or an Immigration Judge.

(f) Response Briefs

When the appealing party files an appeal brief, the other party may file a “response brief,” in accordance with the briefing schedule issued by the Board. See Chapter 4.7 (Briefing Deadlines).

If the appealing party fails to file a brief, the other party may nonetheless file one, provided it is filed in accordance with the briefing schedule issued by the Board.

(g) Supplemental Briefs

The Board usually does not accept supplemental briefs filed outside the period granted in the briefing schedule, except as described below. 

     (1) New authorities - Whenever a party discovers new authority subsequent to filing of a brief in a particular case, the party should notify the Board of the new authority through correspondence with a cover page entitled “STATEMENT OF NEW LEGAL AUTHORITIES.”  See Appendix E (Sample Cover Pages). Such correspondence must be served upon the other party. See Chapter 3.2 (Service). It must also be limited to the citation of new authorities and may not contain any legal argument or discussion. Parties are admonished that the Board will not consider any correspondence that appears in form or substance to be a supplemental brief.

     (2) New Argument - If a party discovers new authority and wishes to file a supplemental brief, or in any way substitute for the original brief, the party should submit the brief along 329 with a “MOTION TO ACCEPT SUPPLEMENTAL BRIEF” that complies generally with the rules for motions, including service on the opposing party. See Chapter 5.2 (Filing a Motion). The motion should set forth the reason or reasons why the Board should permit the moving party to supplement the original brief. (For example, if a motion to file a supplemental brief is based on a change in the law, the moving party would identify that change and argue the significance of the new authority to the appeal.)

(h) Reply Briefs

The Board does not normally accept briefs outside the time set in the briefing schedule, including any brief filed by the appealing party in reply to the response brief of the opposing party. See subsection (f), above.

The Board may, in its discretion, consider an appealing party’s “reply brief” when the following conditions are met: (i) the brief is accompanied by a “MOTION TO ACCCEPT REPLY BRIEF,” (ii) the motion is premised upon and asserts surprise at the assertions of the other party, (iii) the brief identifies and challenges the assertions of the other party, and (iv) the motion and brief are filed with the Board within 21 days of the filing of the other party’s brief. The brief should comply generally with the rules for motions. See Chapter 5.2 (Filing a Motion). If the appeal was filed by a detained alien, see Chapter 4.7(a)(2) (Detained cases).

The Board will not suspend or delay adjudication of the appeal in anticipation of, or in response to, the filing of a reply brief.

(i) Amicus Curiae Briefs

Amicus curiae briefs are subject to the same rules as parties’ briefs. See Chapter 4.6 (Appeal Briefs), 4.7 (Briefing Deadlines). The filing of multiple coordinated briefs from different amici that raise similar points is disfavored. Rather, prospective amici should submit a joint brief along with the request to appear. See generally Chapter 2.10 (Amicus Curiae). In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.