Appealing Your Case To The Board Of

Immigration Appeals

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This guide was prepared and updated by the staff of the Florence Immigrant & Refugee Rights Project and was
written for immigrant detainees in Arizona who are representing themselves pro se in their removal
proceedings. This guide is not intended to provide legal advice or serve as a substitute for legal counsel. The
Florence Project is a nonprofit legal services organization and does not charge for its services to immigrant
detainees in Arizona. This guide is copyright protected but can be shared and distributed widely to assist
indigent immigrants around the country. All of our guides are available to download on our website:
www.firrp.org. We kindly ask that you give credit to the Florence Project if you are adapting the information in
this guide into your own publication.

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 Important Words to Know

Immigration Law has a lot of technical words. Here’s a list of some of the
words you’ll see a lot in this guide and an short explanation of what they
mean.

 Immigration Judge (“Judge”): this is the person who will make a

decision about your case. He or she holds hearings in the
courtroom and wears a black robe. This person doesn’t work for
ICE. It’s her job to look at the facts of your case and apply the law
fairly.

 Immigration and Customs Enforcement (“ICE”): this is the

agency that has put you in deportation proceedings and is in
charge of detaining you. ICE is part of the Department of
Homeland Security, or “DHS.”

 Government Attorney: this is the lawyer who represents ICE

when you go to your court hearings. He or she sits at the table
next to you and also talks to the Judge. It’s usually this attorney’s
job to ask the Judge to order you deported.

 Deportation: ICE has put you in deportation proceedings, which

are also called “removal proceedings.” If the Judge orders you
deported or “removed” from the United States, you will be sent
back to the country where you are a citizen and will not be able to
return legally to the U.S. for at least ten years.

 The Florence Project: this is a group of lawyers and legal

assistants who provide free legal help to people without lawyers.
The Florence Project wrote this guide to help you understand
your case.

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 Table of Contents

1. Overview

2. How to reserve your right to appeal

3. Filing Your Notice of Appeal

4. Filing Your Appeal Brief

5. Checking the Status of Your Appeal

6. Losing and Winning Appeals

7. When The Government Appeals

8. Appealing a Bond Decision

Appendix A: Conversation with Judge When Reserving Appeal

Appendix B: Suggested Outline For A Written Brief to the BIA

Appendix C: Certificate of Service

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Overview

If you disagree with the Immigration Judge’s decision in your case

or on your bond, you have the right to appeal his decision to a higher
court. This court is called the Board of Immigration Appeals, or “BIA”,
and it is actually located in Falls Church, Virginia. The BIA decides all
appeals from immigration courts around the country. The BIA usually
can’t look at new letters or other documents, which means that they will
normally only look at the evidence given to the immigration judge.

Just like you have the right to appeal a decision, Immigration &
Customs Enforcement (ICE) also has the right to appeal to the BIA if the
judge grants you relief or a good bond. So you will need to be prepared
to understand appeals if you win or if you lose your case.

This guide explains how the appeal process works and gives step-
by-step instructions for how to appeal your case. The first part of this
guide is focused on appealing decisions in your removal (deportation)
proceedings only. The second part explains appeals in bond
proceedings since they work a little differently.

If your case is already at the BIA and you are looking for
information about appealing to the 9th Circuit, please refer to the
Florence Project’s guide on Petitions for Review at the 9th Circuit.

How to Reserve Your Right to Appeal

At the end of your immigration court hearing the judge will make
a final decision about your case. For example, he may say “Sir, I am
ordering you deported to Mexico and I am denying your application for
cancellation of removal.” After the judge has made his decision he will
ask you “do you want to appeal my decision?” If you think you will

want to file an appeal, it is very important to say YES! to this

question and RESERVE your right to appeal. When you reserve your
right to appeal you are automatically given 30 days to file your Notice
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of Appeal paperwork and actually start the appeal process. See
Appendix A for a sample conversation with the Judge about
reserving appeal.

There are many things to think

about when deciding whether you want to
appeal the judge’s decision. You will
probably face several more months in
detention if you are appealing a negative
decision and cannot pay your bond or
don’t have a bond. You may also want to
consider how strong you think your case
is and whether you think the facts and law
are in your favor. You should also think
about whether anything unfair or extreme
happened in your hearing that hurt your ability to present your case.
For example, if you had an interpreter and you didn’t understand him,
or if the judge cut you off or didn’t let you testify fully, or if the ICE
attorney was overly aggressive or harassing in his questions. Other
examples may include if one of your witnesses wasn’t allowed to testify,
if you submitted written evidence that was excluded, or if you have a
mental or medical issue that impaired your ability to understand what
was happening in your hearing.

When possible, it is best to think through these things before your

final hearing so you feel prepared to make a decision that day. But the
nice thing about RESERVING appeal is that you don’t have to appeal,
you are just giving yourself time to think about it and make a decision.
During these 30 days you may want to review this guide, talk to a
lawyer or the Florence Project about your chances on appeal, and think
about your decision. If you decide not to appeal in the 30 days, the
judge’s decision will become the final order and if you were denied
relief you will be deported.

If you don’t want to appeal your case and you are absolutely sure
of this at the time of your immigration hearing, when the judge asks if
you want to appeal his decision you should tell him NO, which means
you are WAIVING your right to appeal. If you are from Mexico and
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detained near the border, then this means you will probably be
deported that same day and you have given up your opportunity file an
appeal to the BIA and you accept the judge’s decision as final.

If the judge makes a final decision that is good for you, for
example, if she grants you cancellation of removal, you will not want to
appeal the decision and it is safe to waive your right to appeal. The
government attorney may appeal but if you have been granted relief you
don’t want the BIA to reverse the judge’s decision in your favor.

Filing Your Notice of Appeal

When you tell the judge you

want to appeal, the court officer
will give you some important
paperwork called the Notice of
Appeal, also called an “NOA” or
Form EOIR-26. You have 30 days
from the date of your decision to
file this paperwork with the BIA to
actually start the appeal process.
This means the BIA in Virginia has
to receive the Notice of Appeal by
the 30th day, so give yourself
plenty of time to mail it to the BIA.
It is best to mail your NOA at least
10 days before the 30th day to
make sure it gets there in time. If
the BIA receives your Notice of
Appeal after the deadline it will
not consider your appeal and the Immigration Judge’s decision will
become final. The judge will probably tell you the exact date your
Notice of Appeal is due and, if she doesn’t, feel free to ask the judge
when you reserve appeal what date your Notice of Appeal is due to the
BIA so you are sure you have the right date.

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 The Notice of Appeal paperwork has a few forms. Be sure to read
and follow all of the directions. If you can’t read English, then ask
someone to assist you with the paperwork.

(1) EOIR 26 – Appeal form. This is the actual appeal form and it is
usually printed on blue paper. Follow the instructions carefully and
answer everything required.

 Check “no” where it asks if you want to give an oral argument.

 Question 8 asks about whether you will file a written brief

explaining the mistakes you believe the judge made. You will be
asked to submit this brief in a few weeks, after you have received
the transcript from your hearing. If you plan to write a brief,
check “yes” where it says that you will write a brief. If you check
“yes” here and you do NOT file a brief your appeal will probably
be dismissed. If you want to check “no” be sure to write out all of
the reasons for your appeal on a separate piece of paper and send
it in with this form.

 Where it asks your reasons for appeal, write a short paragraph

about why you want to appeal. Then if you are filing a brief add
this line: “Respondent reserves the right to raise additional
arguments upon receipt of transcript.”

(2) EOIR 26A – Fee Waiver form. Generally, if you are appealing a
removal order, there is a fee of $110.00. The Board may waive this fee if
it is clear that you cannot afford this expense. Complete the information
about your finances and sign the form. Fee waivers are usually granted
for people in detention.

(3) EOIR 33 – Change of Address form. If you are released on bond

from immigration detention or if you move while your appeal is
pending, you must notify the BIA of this change within 5 working days.
This form notifies the BIA of any change in address and it is usually
printed on pink paper. If you do not have a bond and are not going to be
released from detention you don’t need to complete this form.

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(4) EOIR 27 – Attorney form. This form is for your attorney, if you
have one or if you hire one later. It is usually printed on yellow paper.
If you are representing yourself you don’t need to complete this form.
Be sure to sign all forms where it asks you to sign! When they are
complete, you will mail the originals to the BIA at this address:

Board of Immigration Appeals

Office of the Chief Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, VA 20530-0001

You also need to mail a copy to ICE and keep a copy for your own
records. If you are detained in a Florence facility mail a copy to:

ICE Litigation
3250 N. Pinal Parkway
Florence, Arizona, 85132

If you are detained in Eloy mail a copy to:

ICE Litigation
1705 E. Hanna Road
Eloy, AZ 85131

About one month after receiving your Notice of Appeal, the BIA
will mail you an orange paper called the Filing Receipt that says they
have received your appeal. Save this for your records. If you haven’t
received this receipt within a week or two of your Notice of Appeal
being sent call 1-800-898-7180 to check on whether there is a record of
your appeal being filed.

Filing Your Appeal Brief

Usually a few weeks after you receive your filing receipt, the BIA
will mail you a larger package, also with orange documents. This
package will include a copy of the transcript of your immigration
hearing, the Immigration Judge’s decision if it was an oral decision, and
a Briefing Schedule (on orange paper). The Briefing Schedule gives
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your deadline for sending the BIA your written brief. If the Florence
Project is assisting you with your appeal, call us immediately when you
receive this packet in the mail.

The deadline for your brief is usually three weeks from the date
you receive it. Remember you should mail your brief 10 days before the
due date to make sure it gets to the BIA on time. If this is not enough
time for you to prepare your brief, you may file a Motion for Extension
of Time to File the Respondent’s Brief. This MUST be filed before
your brief due date. In this document, it is a good idea to include some
reasons why you need more time, for example, explaining that you are
detained, that you don’t have a lawyer, or that you have limited access
to the law library. Mailing a request for an extension does NOT
automatically extend the filing deadline. While the BIA usually grants
one 21 day extension request do not assume it will be granted until you
get a notice in the mail giving you a new deadline.

If you are detained, ICE will also prepare a brief that is due the
same day and will send you a copy. If the judge denied you relief, ICE
often files a Motion for Summary Affirmance which means they are
asking to BIA to agree with the judge’s decision
denying you relief. You can respond to specific
arguments in ICE’s brief in your own brief but
you are not required to.

You may be wondering how to write a

brief and what it needs to include. Your brief is
just a written argument explaining in detail why
you think the judge made the wrong decision in
your case. The most important thing is to raise
and discuss all of the important issues
presented in your case. See Appendix B to this
guide for a helpful outline of what should go into your brief. It’s
preferable to type your brief but you can also write it by hand clearly.

When your brief is finished, attach the orange Briefing Schedule

or Briefing Extension documents in front and be sure to include a
written Certificate of Service at the end of your brief that says you are
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mailing a copy to ICE. There is a sample certificate of service at the end
of this document in Appendix C. You must sign your brief and your
certificate of service. Make one copy of your final brief for ICE and one
for your own records. Mail the original (with the orange Briefing
Schedule or Briefing Extension) to the BIA at the address on page # and
one copy to ICE at the address on page #.

The BIA will review the briefs, and will make a decision in a few
months. You will receive the BIA’s written decision in the mail. If the
Florence Project is assisting you with your case, call us when you
receive your written decision.

Checking the Status of Your Appeal

To check for a decision from the BIA you can call 1-800-898-
7180. The BIA may take longer in some cases to make decisions than in
others, so it is hard to give you an estimated
time you will have to wait for a decision.
However, the BIA is supposed to make a
decision within six months if you are detained.

If you filed an appeal and you have

decided that you want to give up and be
deported because, for example, you don’t want
to be in detention anymore, you may file a Motion to Withdraw Appeal
by mailing a letter explaining you want to withdraw your appeal to the
BIA at the address on page #. If you withdraw your appeal, the
Immigration Judge’s decision becomes final and it is extremely difficult
to reopen your appeal so think very carefully before you do this.

Losing and Winning Appeals

Often the BIA’s decision can be complicated and in reading it you

may not understand if you have won or lost. The BIA may reverse the
judge’s decision, may affirm (or agree with) the judge’s decision, or may
remand the case (send it back to the judge) for another hearing. If you
are confused by the decision you can send a copy of the decision to the
Florence Project with a letter so we can review it for you.
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 If you lose your appeal on the issue of removability OR if the
government wins its appeal of the judge’s decision in your favor, then
you have the right to appeal that decision to an even higher court. You
have 30 calendar days to file a Petition for Review (appeal) to the U.S.
Court of Appeals for the Ninth Circuit. During the 30 days that you have
to file a Petition for Review with the Ninth Circuit, ICE may try to deport
you, especially if you are from Mexico. If you are from Mexico and you
are detained in Arizona or along the border, this could happen the day
that the BIA orders you deported. If you do plan to appeal your case to
the Ninth Circuit, it is important to have the Petition for Review ready to
go right away. Please see the Florence Project’s guide on Petitions for
Review to the Ninth Circuit if you want more information.

When The Government Appeals

If the Immigration Judge grants your case, you will probably

waive your right to appeal but ICE may still appeal the decision. They
will have 30 days to file their Notice of Appeal and they too may decide
not to ultimately appeal your case. If they don’t appeal, you will
probably be released within 30 to 35 days of the judge’s decision. If
they do file their Notice of Appeal, you will probably remain detained
during the appeal because the judge’s decision in your favor does not
become final until the BIA rules on ICE’s appeal. However, you may
request the a new bond hearing in front of the Immigration Judge in
light of his or her decision in your favor or if you are experiencing
prolonged detention. Please see the Florence Project’s bond guide for
more information on requesting a bond.

Please note that if you represented yourself before the

Immigration Judge and WON your case you may have the opportunity to
have a pro bono attorney assigned to defend your case at the BIA when
ICE appeals. If you win your case before the judge and you are pro se,
the BIA Pro Bono Project may select your case for assistance by a pro
bono attorney.

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Appealing a Bond Decision

Removal and bond proceedings are two separate proceedings that

will result in two separate orders by the judge. In a bond hearing, the
Immigration Judge may choose to grant you a bond for a certain amount
of money. If the judge chooses NOT to grant you bond, he will probably
say one of the following three things, which will signal to you that you
can appeal his decision:

(1) “I’m not going to give you a bond because I do not have
jurisdiction because some of your crimes disqualify you from having a
bond” or “I’m not going to give you a bond because I have no power to
give you a bond because of certain crimes in
your criminal record.”

(2) “I’m not going to give you a bond

because I think that you are a danger to society.”
(This means that the judge thinks that once you
are released you will have more problems with
the law.)

(3) “I’m not going to give you a bond

because I think that you are a flight risk.” (This
means that the judge thinks that if you are free
you will disappear and not keep coming to your
immigration hearings.)

The judge will give you a piece of paper containing the final
bond decision. If the judge sets a bond amount, that amount will be
listed. Otherwise, the judge will probably have checked the box
marked “no jurisdiction” or the box marked “Other.” The judge ask
you “Do you want to appeal my decision?”. If you want to
RESERVE appeal you should answer YES! to this question and take the
Notice of Appeal paperwork. Just like in your deportation case, you will
have 30 days to send this paperwork in.

With bond appeals, the BIA will send you a Memorandum

Decision from the Immigration Judge, explaining why she made the
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decisions that she did about your bond. This is an important document
to review and keep because you will want to reference it in your brief.

Usually several weeks later the BIA will send you a letter
containing an orange document with the Briefing Deadline. Since
bond hearings are not usually recorded you will not receive a transcript
or oral decision from your bond hearing. You then must submit a
written brief before the deadline explaining in detail why you think the
judge made the wrong decision in your bond hearing.

If you lose the bond appeal, then you may subsequently file a
petition challenging your detention with the local Federal District Court
at any time (there is no deadline). If you are facing prolonged detention
and were denied bond and want to explore this you can write to the
Florence Project to see if we can help.

Conclusion

Appealing to the BIA can be complicated and overwhelming,

especially if you don’t have assistance from counsel. We hope this guide
is helpful to you in this process and wish you good luck with your case!

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 Appendix A: Conversation with Judge When Reserving Appeal

JUDGE: Ma’am, I am ordering you deported to Fiji and I am

denying your application for cancellation of removal. Would you like to
appeal my decision?

MS. DEO: Yes your honor. I do not agree with this court’s decision
and I would like to appeal my case to the Board of Immigration Appeals.

JUDGE: Ok, ma’am. I am going to give you some forms for your
appeal. You have 30 days to appeal my decision and you will need to fill
out and mail these forms to Virginia before the deadline passes. The
address is on the front page of instructions.

MS. DEO: Your honor, what date is my appeal due then?

JUDGE: Ma’am, today is December 1st. So your appeal will be due

on December 31st. Do you understand?

MS. DEO: Yes. Thank you your honor. So, do I have to come back
to court on December 31st?

JUDGE: No Ma’am. You just have to fill out and mail those forms
that I just gave you to the BIA in Virginia at the address that is
highlighted on the front cover and make sure that it arrives in Virginia
before the 31st. Ok?

MS. DEO: Yes. Thank you.

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 Appendix B: Suggested Outline For A Written Brief to the BIA

I. Facts and Procedural History

a. Describe the important facts in your case.
b. Describe the decision that the Immigration Judge made
c. Describe any previous appeals, motions to reopen, motions to
reconsider filed in your case and their outcomes.

II. Issues Presented

a. Identify the specific legal issues or factual problems in your case in
the form of a question.
 In many cases, the two main issues will be (1) whether the
evidence shows that you are in fact deportable AND (2) whether
you should be granted relief from deportation. However, every
case is different!

III. Standard of Review

a. The Board reviews findings of fact by an Immigration Judge under
the “clearly erroneous” standard of review, but reviews “de novo”
questions of law, discretion, and judgment and all other issues in
appeals from decisions of Immigration Judges.*
 Because the law is always changing, the standard of review may
also change. Always make sure to double check whether this is
the most current law.

IV. Argument
a. Specifically identify each mistake that you think the Immigration
Judge made in reaching his or her decision.
 For each mistake, specifically identify any information (law,
facts, policy, or otherwise) in the record that support your
assertion that there was an error.

V. Conclusion
a. Indicate what you think the proper relief or remedy is.
 Example: “The Immigration Judge erred in finding me removable
and by denying my application for cancellation of removal. I ask
that this Board terminate these proceedings or, in the
alternative, grant my application for cancellation of removal in
its discretion.”

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 Appendix C: Certificate of Service

I, _____________________________, swear that I did serve the Department of

Homeland Security at_______________________________________________(address)
with an identical copy of this document by mail or hand delivery on the
date indicated below.

____________________________ ____________________
Signature Date

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