How to Appeal a Removal Order: The BIA Appeal Process Explained

How to Appeal a Removal Order: The BIA Appeal Process Explained

Receiving a removal order from an immigration judge is not the end of the road. Immigrants in Georgia who believe the immigration judge made an error of law or fact have the right to appeal to the Board of Immigration Appeals (BIA). Understanding the BIA appeal process, its deadlines, and the standards of review can mean the difference between remaining in the United States and deportation. At J. Lee & Associates Law Group, we represent clients in removal proceedings and BIA appeals throughout Georgia and the Southeast.

What Is the Board of Immigration Appeals?

The Board of Immigration Appeals is the highest administrative body in the U.S. immigration court system. It operates under the authority of the Attorney General and has jurisdiction to review decisions by immigration judges in removal proceedings, as well as certain USCIS and ICE decisions. The BIA is based in Falls Church, Virginia and reviews cases based on written briefs, not live testimony.

Deadline to File a BIA Appeal

This is critical: you have only 30 calendar days from the date the immigration judge issues the oral decision (or mails a written decision) to file a Notice of Appeal (Form EOIR-26) with the BIA. Missing this deadline almost always results in the appeal being dismissed without review. Unlike many court deadlines, there is very limited ability to seek extensions.

Grounds for a BIA Appeal

A successful BIA appeal must identify specific errors made by the immigration judge. Common grounds include:

• Legal errors: The immigration judge misapplied a statute, regulation, or BIA precedent decision
• Factual errors: The immigration judge made findings of fact not supported by substantial evidence in the record
• Constitutional violations: Due process violations, including denial of the right to present evidence or have counsel
• Abuse of discretion: For discretionary decisions such as asylum, cancellation of removal, or adjustment of status
• Procedural errors: Errors in handling evidence, translation problems, or denial of a continuance

The BIA reviews legal conclusions de novo (from scratch) but reviews factual findings for substantial evidence only. This means the BIA will not simply re-weigh credibility unless the immigration judge's finding was clearly erroneous.

The BIA Appeal Briefing Process

1. File Form EOIR-26 within 30 days of the removal order. Pay the $110 filing fee or request a fee waiver.
2. Request the record of proceedings and wait for the BIA briefing schedule. Briefing deadlines are typically 21 days after the record is received.
3. File your opening brief within the deadline. The brief should identify every error with legal argument and citations to the record. If the government responds, you may file a reply brief.
4. The BIA issues a decision either affirming, reversing, or remanding to the immigration judge. BIA decisions may take months to over a year. You can check your case status at ecas.eoir.justice.gov.

What Happens After a BIA Decision?

If the BIA affirms the removal order, further review is still possible:

• Federal Circuit Court of Appeals: You may petition for review of a BIA decision in the federal circuit court of appeals with jurisdiction over your state. For Georgia, that is the U.S. Court of Appeals for the Eleventh Circuit. You must file a Petition for Review within 30 days of the BIA decision.
• Motion to Reopen or Reconsider: In some circumstances, you may file a motion asking the BIA to reopen your case based on new evidence or changed country conditions (relevant in asylum cases), or to reconsider based on a legal or factual error.

Filing an Appeal Does Not Automatically Stop Deportation

Filing a BIA appeal does not automatically stay (stop) removal. You must request a stay of removal separately. The BIA may grant an administrative stay pending the appeal in appropriate cases. You can also request a stay from the federal court when filing a Petition for Review.

Contact J. Lee & Associates Law Group

If you or a family member has received a removal order in Georgia, contact us immediately. BIA appeal deadlines are strict and missing them can be fatal to your case. Call (770) 609-9396 for a free consultation. Se habla español.