--- name: bia-appeals description: > Use this skill to appeal an immigration judge's decision to the Board of Immigration Appeals (BIA) — assemble the EOIR-26 Notice of Appeal, the statement of issues, the optional brief, and fee-waiver request (EOIR-26A). Triggers: "appeal to the BIA", "EOIR-26", "appeal the immigration judge", "30 days to appeal removal", "BIA brief", "summary dismissal BIA", "I want to appeal my removal order", "statement of issues". Produces EOIR-26 scaffold, appeal-brief outline, and fee-waiver cover. Flags the **30-day appeal deadline as jurisdictional and uncurable** (8 CFR § 1003.38). Composes with eoir-removal-defense, circuit-petition-for-review, immigration-deadlines, and immigration-fact-check. version: 0.1.1 --- # BIA Appeals — Appealing an Immigration Judge's Decision > **NOT LEGAL ADVICE.** This skill produces drafting aids, checklists, and document > scaffolds — **not legal advice**, and no attorney-client relationship is created. A removal > appeal can be the last chance to stay in the United States. The **30-day appeal deadline is > jurisdictional and cannot be cured, extended, or reopened** for being late (8 CFR § 1003.38(b), > (d)) — there is no good-cause exception. Verify every deadline, form edition, fee amount, and > citation against current law, and **strongly consider a licensed immigration attorney or an > EOIR-accredited representative** before filing. ## What this skill is for When an **immigration judge (IJ)** rules against the respondent — denial of relief, an order of removal, a denied bond, certain motions — the respondent may **appeal to the Board of Immigration Appeals (BIA)**, the single nationwide appellate body of EOIR. The BIA reviews the IJ's *record*; it is not a new trial and (with narrow exceptions) takes no new evidence. This skill assembles the filing package. The structural/format conventions for EOIR filings are in `eoir-immigration-courts`. ## The Form EOIR-26 and the 30-day deadline - The appeal is taken by filing a **Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26)** **directly with the Board** (8 CFR § 1003.3(a)(1)). - It must be **received by the Board within 30 calendar days** after the IJ states an oral decision or mails / electronically serves a written decision (8 CFR § 1003.38(b)). **Filing = receipt at the Board**, not mailing (§ 1003.38(c)) — build in mailing time. If day 30 is a Saturday, Sunday, or legal holiday, it rolls to the next business day (§ 1003.38(b)). Run `immigration-deadlines` to compute and double-check the date. - The EOIR-26 must include **proof of service on the opposing party** — DHS/ICE Office of the Principal Legal Advisor (OPLA) for the court that decided the case — and be in **English or with a certified translation** (8 CFR § 1003.3(a)(1), (a)(3)). - **Fee or fee waiver.** The Notice must be accompanied by the fee set in 8 CFR § 1103.7 **or** an **Appeal Fee Waiver Request (Form EOIR-26A)** (8 CFR § 1003.8(a)). If neither the fee nor the EOIR-26A is filed *within the 30 days*, the appeal is **not properly filed** and the IJ's decision becomes final as though no appeal had been taken (§ 1003.38(d)). Some appeals need no fee — e.g., a custody/bond appeal, or a matter tied to a no-fee application (§ 1003.8(a)(2)). - A party who **waived appeal** before the IJ cannot file an EOIR-26 (§ 1003.38(b)); so can a person whose departure waived the appeal (§ 1003.3(e)). ## Statement of issues — and the summary-dismissal trap The single most common self-represented error is a **vague** Notice of Appeal. The Board will **summarily dismiss** an appeal whose Notice fails to "**meaningfully** apprise the Board of the specific reasons for the appeal" (8 CFR § 1003.1(d)(2)(i)(A)) — a generic "the IJ was wrong" is not enough. The statement of the basis of appeal (8 CFR § 1003.3(b)) must: - **Specifically identify** the findings of fact, the conclusions of law, or both, that are challenged. - For a **question of law**, cite supporting authority. - For a **factual dispute**, identify the specific contested facts. - For **discretionary relief**, state whether the error goes to statutory eligibility or to the exercise of discretion, and name the specific finding(s) challenged. - **Check the two boxes**: whether **oral argument** is requested, and whether a **separate written brief** will follow. > **Caution on the brief box.** If the EOIR-26 says a brief will be filed and then none is filed (and > no reasonable explanation is given by the deadline), the appeal can be **summarily dismissed on > that ground alone** (8 CFR § 1003.1(d)(2)(i)(E)). Promise a brief only if it will be filed. Other > summary-dismissal grounds include an untimely appeal, lack of Board jurisdiction, and an appeal > filed for an improper purpose or with no arguable basis (§ 1003.1(d)(2)(i)). ## Briefing schedule and page limits - **Brief vs. EOIR-26 alone.** A brief is **optional** — a well-drafted statement of issues on the EOIR-26 can stand alone — but a brief is usually where the real argument lives. - **Schedule.** For transcribed cases, the **Board sets the briefing schedule after the transcript is available** (8 CFR § 1003.3(c)(1)); the appellant typically gets **21 days** (non-detained) or 21-day simultaneous briefing (detained). The Board may, on **written motion for good cause**, extend up to **90 days** (§ 1003.3(c)(1)). Reply briefs are by leave of the Board. - **Page limits / format.** Page limits, the cover page, and formatting come from the **BIA Practice Manual** (procedural guidance, not law) — confirm the current limit there before filing. Cite the **regulation** for anything jurisdictional; use the manual only for mechanics. ## Standard of review — what the Board may second-guess (8 CFR § 1003.1(d)(3)) Frame every issue to the correct standard: | Type of issue | BIA standard of review | |---|---| | IJ's **findings of fact** (including **credibility**) | **Clearly erroneous** — the Board does **not** review facts de novo (§ 1003.1(d)(3)(i)) | | **Questions of law, discretion, and judgment** (and all other issues) | **De novo** (§ 1003.1(d)(3)(ii)) | A factual challenge must show the finding was *clearly erroneous* — not merely that a different finding was possible. A legal/discretionary challenge gets fresh review. Mis-labeling a factual dispute as legal (or vice versa) weakens the appeal. ## What is appealable — and what is NOT this skill - **Appealable here:** IJ decisions over which the Board has jurisdiction under 8 CFR § 1003.1 — removal orders, denials of relief, bond/custody determinations (§ 1003.38(a)), and certain IJ rulings. Some matters lie with the IJ, not the Board (§ 1003.1(d)(2)(i)(F)) — confirm jurisdiction. - **Motion to reopen / reconsider — different route.** A motion to **reopen** (new facts/evidence) or **reconsider** (legal/factual error) asks the *same tribunal* to revisit its own decision; it is not an appeal and runs on different deadlines and standards. Route those to `eoir-motions-to-reopen-reconsider`. - **After the BIA — the petition for review.** The **BIA's decision is the administratively final order of removal** and starts the **30-day clock** to file a **petition for review** with the **U.S. Court of Appeals** under INA § 242 (8 U.S.C. § 1252). That clock is also jurisdictional and separate from this appeal. Route to `circuit-petition-for-review` immediately on a BIA loss. ## Artifacts this skill drafts - An **EOIR-26 cover + statement-of-issues scaffold** — caption with name and **A-number**, the IJ / court, the decision date and 30-day deadline, a specific issue-by-issue statement keyed to the § 1003.1(d)(3) standard of review, the oral-argument and brief-to-follow elections, and a certificate of service on OPLA. - An **appeal-brief outline** — Statement of the Case; Statement of Facts (with record cites); Issues Presented; Standard of Review; Argument (one issue per heading, each tagged de novo vs. clear-error); Conclusion / relief requested; proof of service. - A **fee-waiver (Form EOIR-26A) cover** — the inability-to-pay declaration framing and a checklist to file it *with* the EOIR-26 inside the 30 days. ## Related authority - **8 CFR Part 1003** — Board powers and **standard of review** at § 1003.1(d)(3); **summary dismissal** at § 1003.1(d)(2); **Notice of Appeal / statement of basis** at § 1003.3; **fees** at § 1003.8; the **30-day appeal time** at § 1003.38 — [`../../references/immigration-regulations/8CFR-1003-eoir-bia.md`](../../references/immigration-regulations/8CFR-1003-eoir-bia.md). - **BIA Practice Manual** (filing mechanics, page limits, cover page) — [`../../references/court-rules/BIA-Practice-Manual.md`](../../references/court-rules/BIA-Practice-Manual.md). - **INA § 240 / 8 U.S.C. § 1229a** (removal proceedings) and **INA § 242 / 8 U.S.C. § 1252** (judicial review) — [`../../references/immigration-statutes/INA-II-immigration.md`](../../references/immigration-statutes/INA-II-immigration.md), with the INA ↔ 8 U.S.C. crosswalk in that corpus's README. ## Composition Builds on `eoir-immigration-courts` (EOIR filing format / cover page / service on OPLA) and the record produced in `eoir-removal-defense`. Distinct from `eoir-motions-to-reopen-reconsider` (which revisits a decision rather than appealing it). Hands off to `circuit-petition-for-review` once the BIA issues its final order. `immigration-deadlines` computes the 30-day appeal and briefing clocks; `immigration-fact-check` verifies every regulation and record citation before filing.