Board of Immigration Appeals (BIA)
An Overview of the Board of Immigration Appeals Process
The Board of Immigration Appeals (BIA or Board) is the highest administrative body for interpreting and applying immigration laws. Board has nationwide jurisdiction to review the orders of Immigration Judges and certain decisions made by the Department of Homeland Security (DHS). The Board also has appellate review authority of disciplinary decisions of recognized. Organizations and representatives appearing before the Immigration Courts, DHS, and the Board.
After the Immigration Judge renders a decision, a party may either file an appeal with the Board or file a motion with the Immigration Judge. Once a party files an appeal with the Board, jurisdiction is vested with the Board, and the Immigration Judge is divested of jurisdiction over the case. Accordingly, once an appeal has been filed with the Board. An Immigration Judge may no longer entertain a motion to reopen or a motion to reconsider. For that reason, if a party first files a motion with the Immigration Judge and then files an appeal with the Board. The Immigration Judge loses jurisdiction over the motion, and the record of proceedings is transferred to the Board for consideration of the appeal.
The Board reviews the decisions of the Immigration Judges. Who as independent adjudicators make determinations of removability, deportability, and excludability, and adjudicate applications for relief. The decisions of the Board are binding on the Immigration Judges. Unless modified or overruled by the Attorney General or a federal court.
If the opportunity to appeal is knowingly and intelligently waived, the decision of the Immigration Judge becomes final. Generally, a party who waives appeal cannot retract, withdraw, or otherwise undo that waiver. If a party wishes to challenge the validity of his or her waiver of appeal. The party may do so either in a timely motion filed with the Immigration Judge. Or in an appeal filed directly with the Board that explains why the appeal waiver was not valid.
Grounds for Appeal
The Notice of Appeal must provide concise statement to identify the grounds for the appeal. Vague generalities, generic recitations of the law, and general assertions of Immigration Judge error are insufficient for a successful appeal. If neither the Notice of Appeal nor the documents filed with it adequately identify the basis for the appeal. The appeal may be summarily dismisse. A Notice of Appeal must be file no later than 30 calendar days after the Immigration judge’s decision. The Board does not have the authority to extend the time in which to file a Notice of Appeal. However, the Board has the authority to set briefing deadlines and to extend them.
Most appeals and motions adjudicate by the Board are filed directly with the Board. For appeals and motions that must be file with the Board. The appeal or motion is not deemed “filed” until it is receive at the Board. Board decisions are rendered either by a single Board Member, by a panel of three, or in rare instances, the entire Board. The decisions of the Board are reviewable in federal courts, depending on the nature of the appeal.
Jurisdiction and Authority:
The Board generally has the authority to review appeals from the following:
- decisions of Immigration Judges in removal, deportation, and exclusion proceedings (with some limitations on decisions involving voluntary departure)
- decisions of Immigration Judges pertaining to asylum, withholding of deportation, withholding of removal. Temporary Protected Status, the Convention Against Torture, and other forms of relief
- decisions of Immigration Judges on motions to reopen where the proceedings were conduct in absentia
- decisions of Immigration Judges in rescission of adjustment of status cases,
- some decisions pertaining to bond, parole, or detention,
- decisions of DHS on family-based immigrant petitions, the revocation of family-based immigrant petitions, and the revalidation of family-based immigrant petitions
- decisions of DHS regarding waivers of inadmissibility for nonimmigrants
- decisions of DHS involving administrative fines and penalties under 8 C.F.R. part 1280
The Board also has the authority to discipline attorneys, recognized organizations and accredited representatives for professional misconduct.
There are certain matters that the Board generally does not have the authority to review, such as:
- the length of a grant of voluntary departure granted by an Immigration Judge
- direct appeals from persons removed or deported in absentia
- credible fear determinations, whether made by an Asylum Officer or an Immigration Judge
- reasonable fear determinations made by Immigration Judge
- applications for advance parole
- applications for adjustment of status denied by DHS o orphan petitions
- employment-based immigrant visa petitions
- waivers of the two-year foreign residence requirement for J-1 exchange visitors
- H and L nonimmigrant visa petitions
- K-1 fiancé/fiancée petitions
An interlocutory appeal asks the Board to review a ruling by the Immigration Judge before the Immigration Judge issues a final decision. The Board does not normally entertain interlocutory appeals and generally limits interlocutory appeals. To instances involving either important jurisdictional questions regarding the administration of the immigration laws. Or recurring questions in the handling of cases by Immigration Judges.
Under certain circumstances, the Board may affirm, without opinion, the decision of an Immigration Judge or DHS officer if the Immigration Judge. Or DHS decision reached the correct result and any errors in the decision were harmless or nonmaterial. A summary affirmance order will not contain further explanation or reasoning. Such an order approves the result reached by the Immigration Judge or DHS. Summary affirmance does not mean that the Board approves of all the reasoning of that decision. But it does reflect that any errors in the decision were consider harmless or not material to the outcome of the case. Any motion to reconsider or motion to reopen file after a summary affirmance order should be file with the Board.
Under the following circumstances, the Board is authorize to dismiss an appeal without reaching its merits:
- Failure to Specify Grounds for Appeal. When a party takes an appeal, the Notice of Appeal must identify the reasons for the appeal. A party should be specific and detailed in stating the grounds of the appeal, specifically identifying the finding of fact. The conclusions of law, or both, that are being challenge. An appeal, or any portion of an appeal, may be summarily dismiss if the Notice of Appeal and any brief or attachment. Fails to adequately inform the Board of the specific reasons for the appeal.
- Failure to File a Brief. An appeal may be summarily dismiss if the Notice of Appeal indicates that a brief or statement will be filed in support of the appeal. But no brief, statement, or explanation for not filing a brief is file within the briefing deadline.
An appeal can also be summarily dismisse for the following reasons:
- the appeal is based on a finding of fact or conclusion of law that has already been concede by the appealing party
- the appeal is from an order granting the relief requested
- the appeal is filed for an improper purpose
- the appeal does not fall within the Board’s jurisdiction
- the appeal is untimely
If it appears to the Board, at any time, that an appeal is filed for an improper purpose or to cause unnecessary delay, the appeal may be dismisse. Attorneys and accredited representatives are “admonishe” that the filing of an appeal that is summarily dismisse may be deemed frivolous behavior and may result in discipline
Motions before the Board
- Motion to Reopen. A motion to reopen asks the Board to reopen proceedings in which the Board has already rendered a decision in order to consider new facts or evidence in the case. A motion to reopen must state the new facts that will be prove at a reopened hearing, and supported by affidavits or other evidentiary material. A motion to reopen will not be grante unless it appears to the Board that the evidence offered is material and was not available and could not have been discovere or presented at an earlier stage in the proceedings. Generally, a motion to reopen must be file within 90 days of the Board’s final administrative.
- Motion to Reconsider. A motion to reconsider either identifies an error in law or fact in a prior Board decision or identifies a change in law that affects a prior Board decision and asks the Board to re-examine its ruling. A motion to reconsider is based on the existing record and does not seek to introduce new facts or evidence. A motion to reconsider must be file within 30 days of the Board’s decision.
- Motion to Remand. A motion to remand seeks to return jurisdiction of a case pending before the Board to the Immigration Judge so that the Immigration Judge may consider newly available evidence or newly acquired eligibility for relief. Motions to remand are subject to the same substantive requirements as motions to reopen and evidence and applications for relief, if involved, must be submitte with the motion. The Board may deny a motion to remand where the evidence was discoverable at an earlier stage in the proceedings, is not material or probative, or is otherwise defective. Where an appeal is taken from a decision made by a DHS officer, the Board may reman the case to DHS. If the Board grants a motion to remand resulting in a new decision, a party may file a new appeal. In that new appeal, the party may pursue any new issues or any unresolved issues from the prior appeal.
- Motion to Expedite
- Motion to Withdraw Appeal
- Motion to Withdraw as Counsel or Representative
- Motion to Stay Deportation or Removal
- Motion to Consolidate
- Motion to Sever
- Motion to Join
- Motion to Amend
- Motion to Recalendar (when proceedings have been administratively close or continue indefinitely and a party wishes to “reopen” those proceedings, the proper motion is a motion to recalendar, not a motion to reopen.)
Visa petitions are adjudicate by DHS and once approve, may be revoke, or revalidate by DHS under certain circumstances. If a visa petition is denie or revoke, or the revalidation of a visa petition is denie. An appeal may be take to the Board in some instances. The Board has appellate jurisdiction over family-based immigrant petitions. The Board does not have jurisdiction over employment-based visa petitions.
Visa Revocation Appeals
The Board has appellate jurisdiction over the revocation of visa petition approvals. But no jurisdiction over automatic revocations of visa petitions.
Visa Revalidation Appeals
Certain immigrant petitions are valid for a limited period of time, after which they expire unless revalidated. 8 C.F.R. § 214.2(k)(5). The Board has appellate jurisdiction over the revalidation of visa petitions that fall within the Board’s jurisdiction.
Only the petitioner, not the beneficiary or a third party, may appeal the denial of a visa petition. Revocation of a visa petition approval, or revalidation decision.
An alien in immigration proceedings may be represent by an attorney of his or her own choosing at no cost to the government. Unlike criminal proceedings, the government is not obligate to provide legal counsel. However, the Immigration Courts provide lists of attorneys who may represent aliens for little or no cost. And many of these representative handle cases on appeal as well. Bar associations and nonprofit agencies can also refer aliens to practicing attorneys.
Visit the government’s website for a comprehensive list of “Recognized Organizations and Accredited Representatives Roster by State and City,” which was last updated on: 08/15/22. You should visit for the most up-to-date information.
You may contact us with any question or if you’d like us to handle your appeal.