Appealing an Immigration Judge’s Decision to the BIA

The deadline is 30 days and it cannot be extended.

If an immigration judge has ruled against you, please call or text 512.761.8479 and bring the judge’s decision along with any paperwork you received.

The Immigration Judge Denied My Case. What Happens Now?

The short answer is that the decision is not final, and you generally have the right to appeal it to the Board of Immigration Appeals. That applies whether the judge ordered you removed, denied asylum, denied cancellation of removal, or denied a waiver.

You have 30 days, and that deadline is among the least forgiving in American law.

My name is Kyle Kinzy, and I have been practicing immigration law for more than 25 years. I have handled dozens of appeals before the Board of Immigration Appeals, along with matters before the Administrative Appeals Office and petitions for review in the federal courts of appeals, including appearances before the United States Court of Appeals for the Seventh Circuit.

Thirty Days, Counted From the Decision, and the Board Must Receive It

Three features of this deadline catch people out, and each one has ended cases.

It is receipt based rather than postmark based. There is no mailbox rule at the Board. A notice of appeal mailed on day 29 and delivered on day 32 is late.

Thirty days means 30 calendar days, counted from the date of the judge’s oral or written decision, not 30 business days.

The Board cannot extend it. Narrow exceptions exist for an unplanned electronic filing system outage on the final day, and for a tolling period following a rejected fee waiver request. In genuinely exceptional circumstances a Motion to Accept Late Appeal may be filed on a theory of equitable tolling, which requires showing both diligence and extraordinary circumstances.

If the deadline has already passed, do not assume nothing can be done. Depending on why it passed, and particularly where a lawyer or a notario failed you, a motion to reopen may still be available. That analysis needs to happen quickly rather than eventually.

What Filing an Appeal Stops, and What It Leaves Untouched

A timely appeal from an immigration judge’s removal order generally prevents removal while the appeal is pending, because the judge’s decision does not become final until the Board acts.

That protection does not reach everyone. It generally does not apply to reinstatement of a prior removal order under INA § 241(a)(5), to administrative removal of non-permanent residents with aggravated felony convictions under INA § 238(b), to expedited removal, or to cases in which DHS has invoked the automatic stay of an immigration judge’s bond order.

The stay also reaches the removal order rather than the detention. A pending appeal does not by itself release anyone from ICE custody, which is a separate question addressed on my detention page.

A motion to reopen or reconsider carries no automatic protection at all. In that posture a separate stay request is usually necessary, and it needs to be filed with urgency.

The Stop-Time Rule, and Why Your Years May Not Count

Cancellation of removal requires continuous presence. Lawful permanent residents need seven years of continuous residence after admission. Others need 10 years of continuous physical presence.

The clock stops. Under INA § 240A(d)(1), continuous residence or physical presence ends when you are served with a notice to appear, and it also ends when you commit certain offenses referenced in INA § 212(a)(2). A person served with a notice to appear at year eight does not keep accruing toward 10.

This is the most common miscalculation I see, and people arrive convinced they qualify when the statute says otherwise.

There is a significant argument on the other side. In Pereira v. Sessions (2018) and Niz-Chavez v. Garland (2021), the Supreme Court held that a notice to appear which omits the time and place of the hearing does not trigger the stop-time rule, and that the government cannot cure the defect by sending a later supplemental notice. Many notices to appear issued over the years were defective in exactly that way.

Accordingly, if your notice to appear did not state a time and place, the rule may never have been triggered and continuous presence may have kept running. That argument can restore eligibility for cancellation, and it can also support reopening an old order entered in your absence. The document itself is what settles it, so bring it.

Permanent residents should also know about Barton v. Barr (2020), which held that the offense-based trigger can apply even where the offense did not make the person removable.

How the Board Reviews What the Judge Decided

Understanding the standard of review explains why some appeals succeed and others do not.

The Board reviews an immigration judge’s findings of fact, including credibility determinations, only for clear error. Arguing that the judge should have weighed the evidence differently is therefore rarely enough.

By contrast, the Board reviews questions of law, discretion, and judgment de novo, deciding them without deference.

The practical consequence is that strong appeals are built on legal error, on misapplication of the correct standard, or on a due process violation, rather than on retelling the facts.

What Happens After You File

Once the notice of appeal is filed, the Board orders a transcript of the immigration court proceedings. When the transcript issues, the Board sets a briefing schedule, and the appellant’s brief is typically due within 21 days.

The brief is the case. The Board rarely hears oral argument, so whatever is going to persuade the Board has to be on the page, tied to the record, with the error identified precisely.

Most appeals are decided by a single Board member. Some are referred to three-member panels, generally where the case presents an unsettled legal question or a clearly erroneous factual determination. Some are resolved by affirmance without opinion, which upholds the result without explaining the reasoning.

Motions to Reopen and Motions to Reconsider

These are different from appeals, and the differences decide which one you file.

A motion to reconsider argues that the law was applied incorrectly on the existing record, and it is generally due within 30 days. A motion to reopen presents new facts supported by new evidence that was not previously available, is generally due within 90 days, and is generally limited to one.

Several exceptions to those limits matter in practice. A motion to reopen to apply for asylum or withholding based on materially changed country conditions is not subject to the usual time or numerical limits, provided the evidence is new and was previously unavailable. Where an order was entered in your absence, a motion based on exceptional circumstances generally must be filed within 180 days, while a motion based on lack of proper notice may be filed at any time, and the Pereira and Niz-Chavez line discussed above is frequently the basis for one. Where prior counsel caused the harm, a motion to reopen may be available subject to the procedural requirements of Matter of Lozada, which call for a supporting affidavit, notice to the former attorney with an opportunity to respond, and a statement about whether a bar complaint has been filed. Motions filed jointly with DHS are not subject to the usual limits, and the Board retains limited authority to reopen on its own motion.

After the Board Rules, the Next Court Is Federal

If the Board dismisses the appeal, the next step is a petition for review filed in the appropriate United States Court of Appeals, which for cases arising in Texas is the Fifth Circuit.

That deadline is 30 days from the Board’s decision, and it is jurisdictional. No equitable exception saves a late petition for review, and missing it ends federal review of the removal order.

A petition for review does not automatically stop removal. A separate motion for stay must be filed with the court of appeals.

The scope of federal review has broadened in recent years. Guerrero-Lasprilla v. Barr, Nasrallah v. Barr, and Wilkinson v. Garland expanded the authority of the circuit courts to review mixed questions of law and fact, including in categories once treated as entirely discretionary. Santos-Zacaria v. Garland clarified that the exhaustion requirement is a claim-processing rule rather than a jurisdictional bar. These decisions opened arguments that were foreclosed a decade ago, and taking advantage of them requires preserving the right issues at the right stage.

When Prior Counsel Caused the Problem

A meaningful share of my appellate work involves cases where a previous lawyer made the error: a deadline missed, an application never filed, a claim never raised, an appeal never taken, or a hearing at which no meaningful defense was presented.

Relief in these cases usually depends on showing both that the representation fell below the standard and that it changed the outcome, and on following the Lozada procedures carefully. I have litigated ineffective assistance claims through the Board and into the federal circuit courts. If you believe your case was damaged by the lawyer or the notario who handled it, that is worth a conversation.

What Would Change the Analysis

The contents of the notice to appear, the exact date of the judge’s decision, whether you were present at the hearing, what relief was requested on the record at the first hearing, and the complete disposition of any criminal case all change what is available. Bring the documents rather than the summary.

Frequently Asked Questions

Talk to Me About the Appeal

If an immigration judge has ruled against you, the clock started on the day of the decision. Call and we will determine whether there is an appealable issue.

Call or text 512.761.8479.