Appealing an Immigration Judge's Decision? Act Quickly and File It Right

The EOIR-26 notice of appeal is the form used to appeal an immigration judge’s decision to the Board of Immigration Appeals (BIA). For most decisions, the form must reach the Board within 10 calendar days. This guide explains what the form does, what it must say, and what happens after you file it.

What the EOIR-26 notice of appeal is and who files it

The EOIR-26 is the form a party uses to appeal an immigration judge’s decision to the BIA. Only people covered by that decision, and named on the form, can appeal it, and a party who has waived appeal may not file a Notice of Appeal.

The form does two main jobs. Questions about whether a particular decision can be challenged are best discussed with our team. It also tells the Board and the other side exactly which decision you are contesting.

Keep it separate from other routes. Appeals of decisions made by a DHS officer use a different form, the EOIR-29. A motion to reopen or reconsider is a different request with its own rules. A petition for review in a federal court of appeals is a separate case. It must be filed within 30 days after the final order of removal, under 8 U.S.C. § 1252.

The 10-day deadline and when the clock starts

The deadline for most EOIR-26 filings is 10 calendar days after the immigration judge’s decision. 8 CFR 1003.38 sets that rule.

There is one main exception. If the judge decided an asylum application and did not deny it under section 208(a)(2)(A), (B), or (C) of the Act, the deadline is 30 calendar days.

The clock starts on the date of an oral decision. For a written decision, it starts on the date the decision was mailed or sent electronically. If the last day falls on a weekend or legal holiday, the deadline moves to the next business day. The same rule covers this.

The filing rule is strict. The form must be received at the Board, with all required documents, fees or a fee waiver request, and proof of service, before the deadline. See 8 CFR 1003.3.

Find the date your decision was given or sent, and count from that date. Do this the day you get the decision. Waiting can leave you with less time than you expect.

What the notice must say and what to attach

The notice must state your reasons for appealing. If it does not, the Board may dismiss the appeal. See 8 CFR 1240.15.

Put every issue you may want to raise on the form.

The notice must come with all required documents, the filing fee or a fee waiver request, and proof of service on the opposing party. Proof of service must cover all attachments too.

A filing fee is generally required, with exceptions listed in 8 CFR 1003.8. If you cannot pay, you can request a fee waiver on Form EOIR-26A; the Board has discretion to waive the fee upon a showing that you are unable to pay. That request includes a declaration signed under penalty of perjury, and it must be filed with the notice. If the request does not show you cannot pay, the Board gives 15 days to refile. The filing deadline is paused during that 15-day period.

A representative who appears for you must file Form EOIR-27. That form makes the representative the practitioner of record before the Board.

How to file the EOIR-26 and prove service

File the notice directly with the Board, and send a copy to the other side with proof of service. The Board must receive it by the deadline.

The filing date is the date the Board receives the notice. It is not the date you mailed it. See 8 CFR 1240.15.

Proof of service matters. See 8 CFR 1003.3.

Keep a full copy of everything you filed. Add the proof of service and the fee receipt or fee waiver request. 8 C.F.R. § 1003.3 reads: “An appeal is not properly filed unless it is received at the Board, along with all required documents, fees or fee waiver requests, and proof of service, within the time specified in the governing sections of this chapter.” This shows what was sent and when.

What happens after filing: briefing and Board review

Your EOIR-26 starts the appeal and must identify the reasons for the appeal; you may also file a separate brief. The Board sets a briefing schedule for appeals it does not dismiss right away.

For cases without a transcript, both sides’ briefs are due within 20 days of the Board’s order setting the schedule. They are never due more than 35 days after the appeal was filed. See 8 CFR 1003.3.

Extensions are limited. The Board grants them only in exceptional circumstances. Workload and travel plans do not count as exceptional circumstances.

The Board does not find new facts on appeal. If your appeal needs more fact-finding, you must file a motion for remand. New evidence submitted on appeal may be treated as a motion to remand. See 8 CFR 1003.1.

Track the briefing schedule as soon as the Board sends it. The Board may consider a late brief, but it does not have to.

Removal while the appeal is pending

A decision generally is not carried out while the time to appeal runs or while an appeal is pending. See 8 CFR 1003.6. That rule has exceptions, including some custody decisions, so the facts of your case matter.

The decision becomes final when you waive your appeal. It also becomes final when the time to appeal ends with no appeal filed, whichever happens first. See 8 CFR 1003.39.

They need separate attention from the main appeal.

If a family member is in ICE detention, the ICE Online Detainee Locator System is the official tool for finding that person.

Frequently asked questions about the EOIR-26 notice of appeal

How AG Immigration Law P.A. handles BIA appeals

AG Immigration Law P.A. focuses on removal defense, and BIA appeals are part of that practice. Adriana Gomez is the lawyer responsible for this page.

Our team works through the appeal in clear steps:

• Reviews the immigration judge’s decision and the case record.
• Tracks the deadline from the date the rule uses.
• Prepares the EOIR-26 with every issue you may want to raise.
• Arranges proof of service and fee or fee waiver filings.
• Prepares the brief on the Board’s schedule.

Our support staff help with scheduling and filing logistics. The practice also covers adjustment of status, family petitions, naturalization, removal of conditions on green cards, and waivers. Readers with related questions can ask about those matters too.

Talk with our office about your EOIR-26 deadline

If an immigration judge’s decision just arrived, the short appeal window may already be running. You may also be reading this for a family member who is going through it. Send the decision and your case details through the contact form, call the office, or message us on WhatsApp. To ask about scheduling, reach out to the office directly.