BIA APPEALS

TIMELINE OF A BIA APPEAL

Once an appeal is timely filed with the BIA you can expect the following to occur:

• Approximately 2-4 weeks after filing a complete Notice of Appeal, you should receive written notice from the BIA acknowledging its receipt of the appeal.

• Next, a briefing schedule is issued in which the parties are notified of the deadlines for filing their briefs. Generally parties are given 21 days to file a brief and may request in writing an extension if “good cause” is demonstrated. Note: only one extension per case will be issued.

• Sometime after the filing of your EOIR-26, you will receive from the BIA, a copy of the written transcript of the Immigration Court proceedings. (how long after?)

• Once you receive the government’s reply brief you will have 21 days to respond. A request to extend that period may be made subject to all other rules and numerical limitations.

It is not uncommon for several years to pass before the BIA issues a decision, particularly in cases where novel issues are at stake. For example, the BIA held appeals concerning domestic violence without issuing a decision for more than 8 years while Matter of R-A-, the seminal case on domestic violence, was pending.

FILING AN APPELLATE BRIEF

There are no limits on the number of pages in an appellate filling. However, parties are encouraged to limit the body of their briefs or motions to 25 pages, provided that such length can adequately dispose of the issues in the case. Briefs and all supporting documentation should be one-sided, paginated, and, include a cover page. A sample cover page can be found online in the EOIR practice manual at (http://www.justice.gov/eoir/vll/qapracmanual/pracmanual/AppF.pdf).

For additional brief-writing guidelines, see the BIA Practice Manual Chapter 4 Page 58 available online at the EOIR website at http://www.justice.gov/eoir/vll/qapracmanual/pracmanual/chap4.pdf

Appellate Brief Sections in Order

1. Statement of the Facts (w/ citations to transcript)
2. Procedural History
3. Statement of the Issues
4. Standard of Review
5. Summary of Arguments
6. Legal Arguments
7. Conclusion

You should include these 7 sections in any appellate brief.

1. A short statement of the facts with citations to the transcript (See the BIA Practice manual for instructions on what you may and may not include as facts)
2. A short statement of the procedural history of the case
3. A statement of the issue(s) you would like the BIA to review
4. The standard for review • Findings of fact are reviewed under a “clearly erroneous” standard (i.e. the BIA will not overturn an IJ’s findings unless it is so clearly wrong that it must be overturned) • Legal conclusions are reviewed under a “De Novo” standard
5. A brief summary of the arguments
6. The legal argument itself constituting the majority of your brief
7. A short conclusion stating precisely what you are requesting of the BIA (i.e. reversal of the IJ’s decision, remand for further fact-finding etc.)

NOTICE OF APPEAL

A form EOIR-26, Notice of Appeal from a Decision of an Immigration Judge, must be received by the BIA at its offices in Falls Church, Virginia, no later than 30 days after the date on which the Immigration Judge issued his/her opinion. The form can be accessed at the EOIR website at http://www.justice.gov/eoir/eoirforms/eoir26.pdf.

Summary Affirmance/Streamlining

Regulations issued in 2002 mandate a “screening panel” consisting of BIA members and staff attorneys to determine which cases should be summarily dismissed or affirmed or “streamlined.” These cases can be disposed of with a very brief order, because the appeal is untimely, consists of a matter over which the BIA has no jurisdiction, or the matter has already been stipulated to or is uncontested by the opposing party. If the BIA determines that your appeal satisfies the criteria for an Affirmance Without Opinion, as set forth in 8 C.F.R. § 3.1(e)(4)(i), then a single Board member will issue a three sentence decision, affirming without any further explanation the results of the decision reached below. You will therefore want to include substantive arguments regarding why your appeal should not be “streamlined” in your initial Notice of Appeal. The following are some justifications you may use to argue for a three-judge panel as opposed to a one-judge panel:

• Inconsistencies need to be settled: because Immigration Judges have ruled differently from each other on the issue(s) in the case. • Precedent must be established: a need exists to interpret the meaning of laws, regulations, or procedures at issue in the case and, therefore, a written binding decision is appropriate. • Applicable precedents: the decision by the Immigration Judge does not follow applicable precedents. • Major national importance: the issue(s) in the case must be resolved because they are of major national importance. • Erroneous: the Immigration Judge’s determination of the facts was clearly incorrect or erroneous.

Requesting Oral Argument

The vast majority of cases appealed to the BIA do not result in oral arguments; however, if you would like the chance to argue your case in person, you can mark the “yes” box at question 7 on the EOIR-26. Doing so does not guarantee an oral argument, but it does allow for the opportunity to have your case considered for oral argument.

EAD While BIA Appeal is Pending

If your client’s work authorization will expire during the appeals process you should follow the instructions on the form I-765 in order to file the renewal application with all necessary documentation, appropriate fees, and with the correct service center tasked with renewing that category of employment authorization.

Changing a Client’s Address During the Appeal

In order to change your client’s address while her case is on appeal at the BIA, you should file with the BIA a form EOIR-33/BIA Change of Address (on pink paper). You can access a pdf version of the EOIR-33 online at the EOIR website at http://www.justice.gov/eoir/eoirforms/eoir33bia.pdf.

WITHDRAWING AN APPEAL

You may, at any time prior to the entry of a decision by the BIA, voluntarily withdraw your client’s appeal, with or without the consent of opposing counsel, the DHS. The withdrawal must be in writing and filed with the BIA. The cover page to the withdrawal should be clearly labeled “MOTION TO WITHDRAW APPEAL” and comply with the BIA’s general requirements for filing found in the practice manual. If the BIA does not receive the withdrawal BIA prior to rendering a decision, the BIA will not recognize the withdrawal, and the BIA’s decision will become binding. When an appeal is withdrawn, the decision of the Immigration Judge becomes immediately final and binding, including any orders of removal.

EFFECT OF A DENIAL OF THE APPEAL

A denial at the BIA is not the end of the road. BIA decisions may be overcome through: • A motion to reopen (received within 30 days of the decision); • A motion to reconsider (received by the BIA within 30 days of the decision); • An appeal to the U.S. Federal Circuit Court of Appeals with jurisdiction over your case.

WILKINSON v. GARLAND

In a 6-3 ruling in favor of immigrant Situ Wilkinson, Justice Sonia Sotomayor wrote for the majority, holding that federal courts can review the application of the “exceptional and extremely unusual hardship” standard to a given set of facts. Such findings by an immigration judge (IJ) are not precluded from judicial review under the Immigration and Nationality Act (INA). The Court arrived at this outcome through a straightforward application of its recent precedents.

Crucial to the Court’s decision is the finding that the specific hardship requirement listed in the cancellation of removal statute is, in fact, a “legal standard,” not a “discretionary” determination. The majority rejected the argument that a standard that requires an IJ to “closely examine and weigh a set of established facts” must be classified as an unreviewable factual inquiry. Instead, it found that the Court’s 2020 opinion in Guerrero-Lasprilla v. Barr indicates that such an application of a legal standard to facts is “inescapably, a mixed question of law and fact.”

This makes it easier to seek the Court’s review of an IJ’s decision on a case.

https://www.supremecourt.gov/opinions/23pdf/22-666_new_7758.pdf