Filing Form EOIR-26 With Confidence

The BIA practice manual is the Board of Immigration Appeals’ guide to how appeals and other filings work before the Board. If an immigration judge has just ruled against you, the manual and the rules behind it show what to file, when, and how. This guide walks through the main points you need before you file Form EOIR-26, the Notice of Appeal.

What the BIA Practice Manual Is and Who It Covers

The BIA practice manual is the Board’s procedural guide for appeals and related filings. The Board sits within the Department of Justice and is subject to the general supervision of the Director of the Executive Office for Immigration Review, or EOIR. Its members decide appeals from immigration judge decisions, and they are also called Appellate Immigration Judges, according to the Board’s organization rules.

The manual is not only for lawyers. A family member filing on someone’s behalf, or a person filing alone, gains from the same details. The manual covers practice before the Board. A separate guide covers practice before immigration judges, so keep the two apart when you read them.

If you want the full process after a loss in immigration court, read our BIA appeals overview next.

The Deadline for Form EOIR-26 Depends on the Decision Type

Your Notice of Appeal must reach the Board within the time set by the appeals rule. The clock starts on the date an immigration judge’s oral decision is stated, or on the date a written decision is mailed or electronically notified, and the exact start point depends on how the judge issued the decision.

In certain asylum cases where the judge did not deny the application under 208(a)(2)(A), (B), or (C) of the Act, Form EOIR-26 must be filed with the Board within 30 calendar days of the judge’s decision. Deadlines for an appeal in an immigration case vary with the type of decision. For most immigration judge decisions, a Notice of Appeal is due within 10 calendar days under 8 C.F.R. § 1003.38(b)(1), so the timing for your case should be confirmed early.

For all decisions, the deadline runs from the date an immigration judge’s oral decision is stated or, for a written decision, the date it is mailed or electronically notified. For a written decision, it runs from the date the decision was mailed or sent electronically. If the last day falls on a Saturday, Sunday, or legal holiday, the deadline moves to the next business day.

The filing date is the day the Board receives the notice, according to the appeal procedures rule. Also, no appeal lies from an order of removal entered in absentia.

Write down the decision date and how you received it. The clock start is set by the appeal deadline rule, not by this section, which defines the filing date as the date the Board receives the Notice of Appeal.

What Form EOIR-26 Asks You to State Before You File

The notice must give the reasons for your appeal. The reasons for the appeal must be identified in the Notice of Appeal or its attachments to avoid summary dismissal under § 1003.1(d)(2)(i), as the notice of appeal rule explains.

If you dispute facts, you must identify the specific facts you contest.

Any issue not raised in the form is deemed waived, under the appeals rule. List every issue now.

If a lawyer represents you before the Board, that lawyer must file Form EOIR-27 or Form EOIR-60. The lawyer must also identify themselves by name, accompanied by their signature, on any document filed or intended to be filed with the Board pursuant to an appearance.

Fees, Payment, and Fee Waivers

Most Board appeals require a filing fee, and proof of payment must accompany the notice. The Board’s fee rule sets this out. The rule lists limited exceptions, such as any appeal or motion filed by the Department of Homeland Security.

If you cannot pay, you can ask the Board to waive the fee. Use Form EOIR-26A, with a declaration signed under penalty of perjury. File it with the Notice of Appeal.

If the waiver request does not show you cannot pay, the appeal is not properly filed. The Board grants 15 days to refile with the fee or a new waiver request, and the filing deadline is paused during that cure period.

Every appeal also needs proof of service. You must send a copy of the appeal and all attachments to the other side, and show that you did. The notice of appeal rule requires this proof. An appeal missing a fee, fee waiver request, or proof of service is not properly filed. 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.”

Briefing Schedules and What Comes Next

Filing the notice does not end the work. For appeals the Board has not dismissed, the Board sets a briefing schedule. When no transcript is warranted, both sides file briefs within 20 days after the scheduling order. In no case can briefs be due more than 35 days after the appeal was filed.

If a transcript is warranted, the 20 days run from the Board order that sets the briefing schedule and makes the transcript available. Reply briefs are accepted only when the Board invites or orders them.

Extensions are limited. The Board grants extensions of the briefing schedule only as a matter of discretion, in exceptional circumstances as defined by section 240(e)(1) of the Act, the appeals rule describes. Workload, travel plans, and similar concerns within your control do not count.

Each case is assigned to a Board member or panel, and the Board decides cases as soon as practicable, according to the Board’s organization rules. Cases involving detained noncitizens get priority.

Common Filing Mistakes the Manual Warns About

The most common problems are counting from the wrong date, missing proof of service, unpaid fee filings, and notices that do not name the issues. Each one can cost you the appeal.

Because a filing period can be tied to a specific event, it is worth confirming exactly when that period begins in your case. The clock starts on the oral decision date or the mailing or electronic notice date.

Moving without updating your address is another. You must send Form EOIR-33 to the Board within five working days of any change. A written decision is not sent to an alien who has failed to provide a written record of an address, under the decisions rule.

Vague reasons cause trouble too. A notice that does not name the findings you challenge invites dismissal. An issue left out of the notice is generally waived.

If you file without a lawyer, check every line against the rules above. Confirm the fee or waiver request, the proof of service, and the reasons all appear in the notice.

Questions to Bring to a Lawyer Before the Deadline

Before the deadline, you need the decision date, the grounds for appeal, and a list of every issue you want reviewed. The answers shape the filing, so gather them early.

Ask these questions first:

• What exact date did the judge decide, and how did the decision reach you?
• Was the decision oral or written, and did it involve asylum?
• Is the challenge about a legal error, a finding of fact, or the judge’s discretion?
• Does the order involve an in absentia removal? If so, no appeal lies from it.
• Which records from the immigration court file should you gather now?

The answers depend on the facts of your case, so each one matters to the filing strategy.

Frequently Asked Questions

Talk Through Your Appeal Timeline With Our Team

If an immigration judge ruled against someone you love, you may be the one reading these rules late at night. You don’t have to work out the dates alone. Have the decision date ready so the team can talk through your timeline.

Contact the office with the decision in hand to schedule a consultation. This page is written by AG Immigration Law P.A., with Adriana Gomez as the responsible lawyer. The firm serves clients in Florida, Texas, and New York.