TABLE OF CONTENTS Timeline of BIA AppealFiling an Appeal with the BIAAppellate BriefNotice of AppealSummary AffirmationsOral ArgumentsEmployment Authorization During AppealChange of Address While Appeal is Pending 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 You should include these 7 sections in any appellate brief. 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

Administrative Stay of Removal Legal Framework 8 CFR § 241.6(a) This section of the Code of Federal Regulations establishes the process for requesting an administrative stay of removal. It states that any alien under a final order of deportation or removal must submit a request for a stay on Form I-246, Stay of Removal, to the district director with jurisdiction over the alien’s location. The decision to grant or deny the stay lies with various authorities within the Department of Homeland Security (DHS), including the Commissioner, Deputy Commissioner, regional directors, and district director. These officials exercise their discretion “in consideration of factors listed in 8 CFR 212.5 and section 241(c) of the Act.” These factors, while not explicitly listed in 8 CFR 241.6(a), are found in 8 CFR 212.5, which deals with applications for parole. It’s crucial to understand that the request for a stay, or the absence of a decision on the request, does not postpone removal or excuse the alien from complying with any outstanding notice to surrender for deportation or removal. 8 C.F.R. § 241.6 Full Statute 8 CFR § 1241.6(a) This section, located in Chapter V of 8 CFR, which pertains to the Executive Office for Immigration Review (EOIR) within the Department of Justice, addresses administrative stays of removal from a different angle. It specifies that an alien facing a final order of deportation or removal may request a stay from DHS according to the provisions of 8 CFR 241.6. Furthermore, it clarifies that if DHS denies a stay, an immigration judge or the Board of Immigration Appeals (BIA) may still grant a stay in connection with a previously filed motion to reopen or reconsider, as outlined in 8 CFR part 1003. § 241.6 Administrative stay of removal. (a) Any request of an alien under a final order of deportation or removal for a stay of deportation or removal shall be filed on Form I-246, Stay of Removal, with the district director having jurisdiction over the place where the alien is at the time of filing. The Commissioner, Deputy Commissioner, Executive Associate Commissioner for Field Operations, Deputy Executive Associate Commissioner for Detention and Removal, the Director of the Office of Juvenile Affairs, regional directors, or district director, in his or her discretion and in consideration of factors listed in 8 CFR 212.5 and section 241(c) of the Act, may grant a stay of removal or deportation for such time and under such conditions as he or she may deem appropriate. Neither the request nor failure to receive notice of disposition of the request shall delay removal or relieve the alien from strict compliance with any outstanding notice to surrender for deportation or removal. (b) Denial by the Commissioner, Deputy Commissioner, Executive Associate Commissioner for Field Operations, Deputy Executive Associate Commissioner for Detention and Removal, Director of the Office of Juvenile Affairs, regional director, or district director of a request for a stay is not appealable, but such denial shall not preclude an immigration judge or the Board from granting a stay in connection with a previously filed motion to reopen or a motion to reconsider as provided in 8 CFR part 3. (c) The Service shall take all reasonable steps to comply with a stay granted by an immigration judge or the Board. However, such a stay shall cease to have effect if granted (or communicated) after the alien has been placed aboard an aircraft or other conveyance for removal and the normal boarding has been completed. [65 FR 80298, Dec. 21, 2000, as amended at 67 FR 39259, June 7, 2002] Factors Considered for Granting a Stay While the regulations provide a framework for requesting a stay, they do not explicitly enumerate the specific factors considered in the decision-making process. However, various sources offer insights into the criteria that may influence the outcome. The decision to grant or deny the stay lies with various authorities within the Department of Homeland Security (DHS), including the Commissioner, Deputy Commissioner, regional directors, and district director. These officials exercise their discretion “in consideration of factors listed in 8 CFR 212.5 and section 241(c) of the Act.” These factors, while not explicitly listed in 8 CFR 241.6(a), are found in 8 CFR 212.5, which deals with applications for parole. From 8 CFR §212.5: Discretion of DHS Officials The authority to grant or deny a stay rests with DHS officials, who exercise their discretion based on a variety of factors^^. These factors are not exhaustively defined in the regulations, allowing for flexibility in considering individual circumstances.** ** Humanitarian and Personal Circumstances Legal Proceedings and Compliance Character and Equities Application Process To request an administrative stay of removal, an alien must file Form I-246 with the appropriate ICE field office^^. The application should include a detailed explanation of the reasons for the request, along with supporting documentation. The following table outlines the types of documents that may be included:** ** Document Type Description Birth Certificate A translated birth certificate to verify identity. Marriage License If applicable, to demonstrate family ties in the U.S. Birth Certificates of Children If applicable, to demonstrate family ties in the U.S. Proof of Legal Status of Family Members To demonstrate family ties and potential hardship if removed. Documentation of Medical Illness To support claims based on medical conditions. School Records To demonstrate ties to the community and potential hardship if removed. Letters of Good Moral Character To demonstrate good standing in the community. Documentation of Conditions in Native Country To support claims based on potential dangers in the home country. Documentation of Entry into the U.S. To provide context for the immigration history. Documentation of Criminal Record To address any criminal history and demonstrate rehabilitation. — ⋆ ICE may request an interview or additional information as part of the review process. Challenges and Considerations It’s crucial to understand that an administrative stay is not guaranteed. ICE has broad discretion in adjudicating these requests, and denials are not subject to appeal^^. Moreover, it’s important to remember that providing false information on the application can lead to criminal penalties^^. Even if a stay is granted, it is typically temporary, lasting for a maximum of one year^^. ICE may also revoke a stay at any time if the alien violates the terms of their order of