Appeals

What You Should Know About Appeals of Immigration Decisions

If you get an unfavorable decision on your immigration case from the U.S. Citizenship and Immigration Services (USCIS), you may feel disappointed and frustrated. However, you may be eligible to file an appeal or a motion to review.

An immigration appeal requests a different authority to review the unfavorable decision. Certain USCIS decisions may be appealed to the USCIS Administrative Appeals Office (AAO) or to the Board of Immigration Appeals (BIA), which is the “highest administrative body for interpreting and applying immigration laws.”  The BIA is an office within the Department of Justice.

A motion to review differs from an appeal in that it’s a request for the same authority to review the unfavorable decision. You may be eligible to file a motion to review even if you aren’t qualified to file an immigration appeal.

In 2023, 50,779 new appeals were filed, and 35,882 were completed. However, as of the end of 2023, 113,511 immigration appeals were still pending.

Filing an immigration appeal can be a daunting process.  Keep reading to learn more about the process of immigration appeals for unfavorable immigration decisions.

Why Would I File an Immigration Appeal?

Before we jump into the process of filing an immigration appeal, let’s explore when and why you may want to file an appeal. Here are some situations that may warrant filing a notice of appeal:

• Denial of your Green Card or visa application
• Removal orders
• Denial of your refugee or asylum request or status

Also, let’s look why you (or your attorney) may consider filing an appeal in your case. Here are some common reasons:

• An immigration judge made incorrect factual determinations in your case.
• An immigration judge did not correctly apply the law to your case.
• Inconsistencies among judicial rulings exist as to the facts of your case.

You’ll need to state the reason for your appeal. Additionally, you’ll need to specify the facts being challenged and the correct legal authority that applies to your case. If you fail to state the reasons for your appeal, your case may be dismissed.

What Forms Are Needed for the Immigration Appeals Process?

Depending on your situation, you must start your appeals process by filing the correct form.

If you wish to appeal a USCIS decision, you can appeal to the AAO (which reviews USCIS denials) by completing Form I-290B, Notice of Appeal or Motion. If you wish to appeal an unfavorable decision by an immigration judge, you’ll need to complete Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge. If you wish to appeal an unfavorable decision from a Department of Homeland Security officer (such as a denied visa), then you’ll need to complete Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer.

Let’s look at each in turn.

Form I-290B, Notice of Appeal or Motion

If the USCIS denies your immigration petition or application, you may be eligible to appeal the unfavorable decision to the AAO, by filing a Form I-290B, Notice of Appeal or Motion. You’ll need to identify any factual or legal errors when filing your appeal.

Once completed, do not file your Form I-290B with the AAO.  Instead, depending on your circumstances, you’ll send your form to one of the addresses listed on the USCIS’s direct filings. Appeals sent to the AAO will be rejected.

Along with your form, you’ll send a check for six hundred seventy-five dollars ($675) made payable to the “United States Department of Homeland Security.” If you cannot afford this filing fee, you may apply for a fee waiver by including Form EOIR-26A, Fee Waiver Request, with your appeal notice. You also should include a copy of the unfavorable immigration decision along with your appeal.

You may also file a brief or any additional evidence with your form. A brief is a type of legal document filed with the appellate board that states the facts and law of your case.

You must file your notice of appeal within 30 days after you receive personal service the unfavorable immigration decision or within 33 days after the judge’s decision was mailed. The appeal is considered filed on the date of receipt by the USCIS, not the date it was mailed. If your appeal is not received by this deadline, then the immigration judge’s decision becomes final.

Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge

If an immigration judge denies your immigration petition or application, you may be eligible to appeal the unfavorable decision to the BIA, by filing a Form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge. You’ll need to identify any factual or legal errors when filing your appeal.

When the immigration judge issues their decision, they will ask you if you want to reserve (or keep) your right to appeal. If you’d like to appeal the decision, then you’ll tell the judge that you would like to reserve your right to appeal.

If you do not reserve your appeal rights, you waive (or give up) any rights to an appeal, rendering the immigration judge’s decision final.  This means that you may be removed from the United States.

If you receive the immigration judge’s decision in the mail, then you don’t have to reserve your appeal rights.  Your appeal rights are automatically preserved. However, as we further discuss below, you still need to file your notice of appeal.

However, once you state that you want to keep your appeal rights, the clock starts ticking. You must file your notice of appeal within 30 days of the judge’s oral unfavorable immigration decision or within 30 days after the judge’s decision was mailed. If your appeal is not received by this deadline, then the immigration judge’s decision becomes final.

Once you decide to appeal your case and preserve your appeal rights (where necessary), you must complete Form EOIR-26. Once completed, you’ll need to mail your notice to appeal (or deliver personally) to the:

Board of Immigration Appeals Clerk’s Office

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

Along with a check for one hundred and ten dollars ($110) made payable to the “United States Department of Justice.” If you cannot afford this filing fee, you may apply for a fee waiver by including Form EOIR-26A, Fee Waiver Request, with your appeal notice. You also should include a copy of the unfavorable immigration decision along with your appeal.

In addition to sending your notice of appeal to the Board of Immigration Appeals Clerk’s Office, you should send a copy of all of your documents to the Department of Homeland Security while keeping a copy for yourself.

You may file a brief or a written statement along with your notice of appeal. Further, you can request an oral argument, allowing you to approach the appellate board in a formal legal proceeding (similar to other court cases).

When you’re completing your appeal paperwork, you may choose to have a qualified immigration attorney help you. An immigration attorney can help streamline this process while ensuring all information is complete and filed correctly and that your supporting documentation supports your case.

Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer

Filing a Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer is similar to filing a Form EOIR-26, except that you file Form EOIR 29 with USCIS, the Department of Homeland Security, or U.S. Customs and Border Protection. You do not send a copy of this form to the Board of Immigration Appeals.

For either form, you must:

• Specify the reasons for your appeal

• State any facts or laws that support your appeal

• File the appeal timely and completely

Do not request to file a brief and then fail to do so if so permitted during your appeal process. Also, if you file your appeal for an “improper purpose,” such as to create a delay, then your appeal may be rejected.

What Other Steps Are Required for Your Immigration Appeal?

Serving Other Parties

Once you complete the applicable notice of appeal, you must mail a copy of the completed form and any supporting documentation to the Assistant Chief Counsel of the U.S. Immigration and Customs Enforcement (ICE). The Assistant Chief Counsel acts as the opposing party in your appeal. You must also complete a “Proof of Service,” which proves that you correctly submitted your completed filing to the opposing party.

You’ll need to carefully check each form’s instructions to confirm whether any other parties, such as the Department of Homeland Security’s local counsel, must be served.

Failure to serve the correct parties could result in the rejection of your immigration appeal.

Filing Your Brief

If you file a brief with your appeal, the reviewing board or court will provide you, your attorney, and the opposing party a “briefing schedule,” outlining all the deadlines for you to submit your legal brief. It’s critical that you submit your brief by the deadline.

The opposing party will also submit a brief in response to your brief. Focusing on the opposing party’s factual and legal points is essential when you prepare a response. Here, an experienced immigration attorney can help you with the briefing process, which involves many legal terms and principles.  Additionally, an immigration attorney understands this process of the appeal, helping you save time while increasing the success of your appeal.

Waiting for a Response

Finally, once all forms, supporting documentation, and briefs are submitted, you’ll need to wait for a decision on your appeal. Typically, appellate decisions are made by one person, a three-person panel, or, sometimes, in the case of the BIA, the full board. The complexity of your case will often determine who makes the final decision.

Once a decision is made, the decision-maker will mail the decision to all parties through regular U.S. mail or may send decisions electronically, such as through the EOIR Courts & Appeals System (ECAS).

The appellate decision is considered final unless the government challenges it.  Challenges can come from the U.S. Attorney General, a federal court, or the BIA itself. However, if you receive an unfavorable decision upon appeal, then you should talk to your immigration attorney immediately to understand what legal options you may have.