Understanding the Three Grounds for Appeal in Immigration Court

If an immigration judge has ruled against you or someone in your family, you probably want to know whether that decision can be challenged.

This page explains each ground in plain words, along with the filing deadline and the first steps to take.

What Are the Three Grounds for Appeal to the BIA?

The three grounds for appeal are facts, legal questions, and discretion. The Board is part of the Department of Justice. Its members act as the Attorney General’s delegates in the cases before them (8 CFR 1003.1).

The BIA does not start the case over.

Knowing which kind of issue you have helps you build a clearer appeal. The standards describe how the Board reviews a decision. 8 C.F.R. § 1003.1 reads: “A single Board member assigned under the case management system shall determine the appeal on the merits as provided in paragraph (e)(4) or (5) of this section, unless the Board member determines that the case is appropriate for review and decision by a three-member panel under the standards of paragraph (e)(6) of this section.” They do not tell you how your appeal will turn out, and no one can promise a result based on the standard alone.

How Does the BIA Review Findings of Fact?

The Board will not re-decide the facts on its own. Under 8 CFR 1003.1, the Board will not engage in factfinding in the course of deciding cases, except for taking administrative notice of commonly known facts such as current events or the contents of official documents.

Findings of fact include whether the judge believed your testimony, what happened at a key event, and what a document shows. The same rule covers credibility findings. Credibility means how much the judge trusted what you or a witness said.

Clear error is a hard standard to meet. Disagreeing with the judge is not enough on its own. The Board needs to see a clear mistake in the findings. That is why the facts need to be built carefully during the hearing itself.

A common mistake is treating a fact dispute as a legal one, or the reverse. Look closely at what the judge actually found. Then ask whether you are challenging the finding itself or the legal rule the judge applied to it.

How Does the BIA Review Questions of Law?

Questions of law ask what a legal rule means or how it applies. The BIA reviews these differently from facts. The Board’s rules say that if a question of law is presented, supporting authority must be cited (8 CFR 1003.3).

Legal questions come up often in removal cases. Examples include whether a statute applies to the facts, or how a legal standard should be read. A legal argument buried in a long story is easy to miss, so state it plainly and cite the authority behind it.

The BIA has a separate rule for decisions issued by DHS officers. The Board may review all questions arising from those decisions de novo, which means it looks at them fresh (8 CFR 1003.1). Check which official made the decision you want to appeal, because that affects the review.

How Does the BIA Review Discretion?

Discretion covers relief where the judge weighs the whole picture instead of applying a fixed rule. A judge might look at a person’s history, family ties, and other circumstances before deciding. Your appeal must say what kind of error you claim.

Where your appeal concerns discretionary relief, the rules require you to state whether the alleged error relates to statutory grounds of eligibility or to the exercise of discretion. You must also name the specific findings you challenge (8 CFR 1003.3).

A judge can find that a person meets the basic requirements for a form of relief and still deny it as a matter of discretion. Those are two different arguments. Mixing them into one vague paragraph makes the appeal harder for the Board to follow and harder to win on.

How Do These Grounds Fit Into the Notice of Appeal?

You start an appeal by filing a Notice of Appeal (Form EOIR-26) directly with the BIA. The general deadline is 10 calendar days from the immigration judge’s decision. Certain asylum cases get 30 calendar days instead (8 CFR 1003.38).

Deadlines count from the date of an oral decision, or from the mailing or electronic notice of a written decision. If the last day falls on a weekend or legal holiday, the deadline moves to the next business day. The appeal is filed on the day the Board receives it.

The appeal must include the fee or an Appeal Fee Waiver Request (Form EOIR-26A). If neither is filed in time, the appeal is not properly filed, and the decision becomes final as though no appeal had been taken (8 CFR 1003.38).

Any issue not raised there is deemed waived (8 CFR 1003.38). Failure to state the reasons may lead to dismissal (8 CFR 1240.15). Once a briefing schedule is set, briefs are generally due within 20 days (in cases where a transcript is warranted, within 20 days of the Board order setting the schedule and making the transcript available), and in cases without a transcript no later than 35 days after the appeal was filed (8 CFR 1003.3).

What the BIA Generally Does Not Consider on Appeal

The BIA generally decides an appeal on the record the immigration judge already had. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand (8 CFR 1003.1).

New evidence sent with an appeal may be treated as a motion to remand. That is why evidence belongs in the hearing record whenever possible.

A motion to reopen is a different tool with its own rules. It must state the new facts and be supported by affidavits or other evidence (8 CFR 1003.2).

Two more points matter here. No appeal lies from an order of removal entered in absentia (8 CFR 1240.15). Except when certified to the Board, the decision becomes final when the right to appeal is waived or the time to appeal runs out, whichever happens first (8 CFR 1003.39). Write down the date you received the decision, because the decision becomes final upon expiration of the time to appeal if no appeal is taken (8 CFR 1003.39).

Talk With Our Team About Your Removal Case

A removal order is hard news for anyone. It can be harder when you are reading about it for a parent, spouse, child, or friend. If you have a decision in hand and a deadline running, you do not have to sort it out alone.

Adriana Gomez is the lawyer responsible for this page. To talk through your decision, reach out to AG Immigration Law P.A. by phone, on WhatsApp, or through the contact form. You can also book a paid consultation to review your specific decision and deadline. If your matter may need to go to another lawyer or firm, we will tell you. For the wider picture, see our removal defense page.