EOIR-26 or EOIR-29? Choose the Right Appeal Form

A decision just arrived, and the clock to appeal may already be running. The first question is which form to file.

Use Form EOIR-26 when an immigration judge made the decision. Use Form EOIR-29 when a DHS officer made it. Both are appeals to the Board of Immigration Appeals (BIA), but they go to different offices on different timelines.

EOIR-26 or EOIR-29: which form fits your decision?

The person who made the decision sets the form, not the relief you asked for. An immigration judge’s decision is appealed on Form EOIR-26, filed directly with the Board under 8 CFR 1003.38. A DHS officer’s decision is appealed on Form EOIR-29, filed with the DHS office that controls the record, under 8 CFR 1003.3.

Appeals from immigration judge decisions are taken on Form EOIR-26, filed directly with the Board, and appeals from DHS officer decisions are taken on Form EOIR-29, filed with the DHS office; 8 CFR 1003.3 does not address bond or custody rulings. Under 8 CFR 1003.19, an immigration judge’s custody or bond ruling may be appealed to the Board of Immigration Appeals pursuant to § 1003.38. The following procedures shall be applicable with respect to custody appeals in which DHS has invoked an automatic stay pursuant to 8 CFR 1003.19(i)(2): the stay shall lapse if DHS fails to file a notice of appeal with the Board within ten business days of the issuance of the order of the immigration judge, DHS should identify the appeal as an automatic stay case, and to preserve the automatic stay the attorney for DHS must file a certification by a senior legal official with the notice of appeal (8 C.F.R. § 1003.6(c)).

A notice sent to the wrong office can fail. An appeal is not properly filed until the correct office receives it, with all required documents, fees or a fee waiver request, and proof of service.

Start with who issued the decision

Check the issuing office on your decision or notice first. Immigration judges work within the Executive Office for Immigration Review (EOIR). DHS officers, including U.S. Immigration and Customs Enforcement (ICE) officers, work for the Department of Homeland Security (DHS).

The Board sits in the Department of Justice under EOIR’s general supervision, as 8 CFR 1003.1 explains. Its role is to hear appeals from both kinds of decisions, but the filing route depends on who decided.

DHS custody decisions can come first to a judge. Under 8 CFR 1003.19, a custody determination made by DHS may be reviewed by an immigration judge pursuant to 8 CFR part 1236, but a judge may not redetermine custody for certain groups, such as people in exclusion proceedings and arriving aliens in removal proceedings. That review is a separate step from an appeal, so check which step your paperwork describes.

Deadlines and the filing clock

For most immigration judge decisions, Form EOIR-26 is due within 10 calendar days. For asylum decisions where the immigration judge did not deny the application under 208(a)(2)(A), (B), or (C) of the Act, the deadline is 30 calendar days.

The clock starts on the day of an oral decision. An appeal must be filed within the time specified in § 1003.38, which for a written decision runs from the date the decision is mailed or sent electronically. If the last day falls on a weekend or legal holiday, the deadline moves to the next business day, under 8 CFR 1003.38.

The filing date is the day the Board receives your notice, not the day you mailed it. Keep the envelope and any service date, because the timing depends on those dates.

If the time to appeal runs out, the decision becomes final. 8 CFR 1003.39 says a decision becomes final upon waiver of appeal or when the time to appeal expires, whichever comes first. 8 C.F.R. § 1003.39 reads: “Except when certified to the Board, the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first.”

What a missing fee or form can cost you

A Notice of Appeal without the fee, or without a fee waiver request, is not deemed properly filed if the fee or the fee waiver request is not paid or filed within the specified time period. In that case, if the fee or Appeal Fee Waiver Request is not filed within the time period in 8 CFR 1003.38(b), the judge’s decision is final as though no appeal had been taken, under 8 CFR 1003.38.

The Board may waive the fee if you show you cannot pay. The request is Form EOIR-26A, which includes a declaration signed under penalty of perjury substantiating inability to pay the fee, and it must be filed with the notice of appeal, under 8 CFR 1003.8; if the request falls short, the Board grants 15 days to re-file with the fee or a new waiver request, and the deadline is paused during that time.

The reasons for the appeal belong in the Notice of Appeal itself. 8 CFR 1240.15 says failing to state them may be grounds for dismissal. Under 8 CFR 1240.15, an appeal lies from an immigration judge’s decision to the Board, except that no appeal lies from an order of removal entered in absentia, and the reasons for the appeal shall be stated in the Form EOIR 26, Notice of Appeal, in accordance with 8 CFR 1003.3(b); failure to do so may constitute a ground for dismissal of the appeal by the Board pursuant to 8 CFR 1003.1(d)(2).

For decisions issued on or after March 9, 2026, the Board shall summarily dismiss an appeal unless a majority of its permanent members votes en banc to accept it for adjudication on the merits, except for appeals under paragraphs (b)(5), (6), (7), and (14) of 8 CFR 1003.1. A thin notice is a risky notice.

When a motion to reopen may be the better path

A motion to reopen asks the Board to reopen a case it has already decided. It is a written motion, not an appeal, and the Board may deny it even when the motion makes a basic showing for relief, per 8 CFR 1003.2.

An in absentia order is the clearest example. No appeal lies from an order of removal entered in absentia, under 8 CFR 1240.15. A motion is the route to examine instead.

Timing matters here too. Under 8 U.S.C. 1229a, a motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal. An order entered in absentia may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal if the person demonstrates that the failure to appear was because of exceptional circumstances, or upon a motion to reopen filed at any time if the person demonstrates that they did not receive proper notice or were in federal or state custody and the failure to appear was through no fault of their own. It also bars some relief for 10 years for a person against whom a final removal order is entered in absentia and who received oral notice of the time, place and consequences of missing court, unless the failure was because of exceptional circumstances.

Under 8 U.S.C. § 1229a, the 30-day filing period applies only to the motion covered by that statute’s specific deadline provision; the general deadline for a motion to reopen is 90 days from the date of entry of a final administrative order of removal, subject to exceptions. The English-language requirement for motions is set out in 8 CFR 1003.2(g)(1), not in the statute. A represented person must also file Form EOIR-27 with it, under 8 CFR 1003.2. Which path fits depends on the facts, so pin down the decision date and decision type first.

Talk through your decision with our office

The right form depends on who issued the decision and when, and our office can check both with you. The firm focuses on removal defense and BIA appeals, and it serves immigrants across the US.

Have these ready: the decision or notice, the envelope it came in, any custody paperwork, and every date you know.

If a decision or notice reached you recently and you are worried about the deadline, reach out through our contact page to schedule a consultation.