The Board of Immigration Appeals (BIA) is the highest administrative authority in the United States for interpreting and applying immigration law. Operating within the Department of Justice’s Executive Office for Immigration Review (EOIR), the BIA reviews decisions made by immigration judges and certain Department of Homeland Security (DHS) officials. Its role is to promote fairness and consistency in how immigration law is applied nationwide.
What this article is about
This guide explains the structure and functions of the BIA, the process for filing an appeal, the categories of cases commonly reviewed, and the possible outcomes. It also outlines how BIA decisions interact with federal court review and the Attorney General’s certification power. Throughout, it emphasises key procedural rules—especially strict deadlines and record-based review—so individuals, employers and representatives can navigate appeals accurately and effectively.
Key procedural clarity following DEC: The BIA does not take new testimony or consider new evidence on appeal. It conducts a record-based review of the existing proceedings and written briefs, granting oral argument only in rare cases. Limited exceptions exist where regulations permit fact-finding on remand.
Section A: Overview of the Board of Immigration Appeals
The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying U.S. immigration laws within the Department of Justice’s Executive Office for Immigration Review (EOIR). It ensures nationwide consistency by reviewing selected decisions of immigration judges and certain determinations by the Department of Homeland Security (DHS). Headquartered in Falls Church, Virginia, the BIA ordinarily decides cases on the written record and briefs; oral argument is rare and granted only in exceptional circumstances.
The BIA does not function like a trial court. It does not take new testimony or consider new evidence on appeal. Instead, it conducts a record-based review and, where appropriate, issues decisions that are binding on immigration courts and DHS officers unless modified by the Attorney General or a federal court.
1. Placement within the U.S. immigration system
The BIA sits within EOIR alongside the immigration courts. Immigration judges conduct initial hearings and issue decisions. Parties dissatisfied with those rulings—respondents or DHS—may seek administrative review before the BIA. The Attorney General retains ultimate supervisory authority and may certify BIA cases for decision in limited circumstances.
2. What the BIA reviews
The BIA reviews a defined set of matters, most commonly appeals from immigration judge decisions (including removal orders and applications for relief). In limited categories, the BIA also reviews certain DHS officer determinations. Its review focuses on whether the immigration judge correctly applied law and exercised discretion consistent with governing standards, and whether factual findings are clearly erroneous.
3. How the BIA decides cases
Most cases are decided through a “paper review” of the record of proceedings, transcripts, exhibits and the parties’ written briefs. The Board may issue non-precedent decisions that resolve only the parties’ dispute, or designate a decision as precedent to guide immigration courts and DHS nationwide. Precedent decisions have system-wide effect and are integral to uniform application of immigration law.
4. Core functions of the BIA
- Review appeals from immigration judge decisions, including removal, asylum and bond matters.
- Issue precedent decisions that bind immigration judges and DHS officers nationally.
- Remand cases to immigration judges with instructions where further proceedings are required.
- Refer or respond to Attorney General certifications in exceptional cases.
Section A Summary. The BIA is EOIR’s appellate body, headquartered in Virginia, that ensures consistent, lawful adjudication by reviewing immigration judge decisions and selected DHS determinations. It decides most matters on the written record, issues binding rulings, and occasionally sets nationwide precedent shaping U.S. immigration practice.
Section B: The Appeals Process
Appealing to the Board of Immigration Appeals (BIA) is the main way to challenge an immigration judge’s ruling. The process is highly structured, with strict rules on eligibility, form requirements and deadlines. Because the BIA reviews the existing record and legal briefs rather than conducting a new trial, understanding procedure is critical. Errors in filing or timing can result in dismissal without any review of the merits.
1. Who can appeal and eligibility
Both individuals and the Department of Homeland Security (DHS) may appeal. A respondent who has received an adverse decision—such as an order of removal, denial of relief or denial of bond—can file an appeal. DHS may also appeal when it disagrees with an immigration judge’s ruling. Appeals must be based on alleged legal or factual errors; they are not an opportunity to reargue the case as if it were new.
2. How to file a Notice of Appeal (Form EOIR-26)
The process begins by filing a Notice of Appeal on Form EOIR-26 with the BIA. This form must be fully completed, signed and received on time. It requires the appellant to state reasons for appeal and whether a written brief will be submitted. As of 2025, the filing fee is $110. Individuals unable to pay may request a waiver by submitting Form EOIR-26A. Failure to comply with these requirements, such as leaving the form unsigned, paying the wrong fee or filing late, will result in rejection.
3. Deadlines and time limits
The deadline to file Form EOIR-26 is 30 calendar days. If the immigration judge issues an oral decision in court, the deadline runs from that date. If the decision is issued in writing and served by mail, the deadline runs from the mailing date. The form must arrive at the BIA by the deadline; mailing on the 30th day is insufficient if it arrives late. There are no extensions, and missing the deadline almost always makes the decision final and enforceable.
4. Standard of review
The BIA applies different standards depending on the issue. Factual findings by immigration judges are reviewed under a “clearly erroneous” standard, meaning they are overturned only when a major error is evident. Questions of law, discretion and judgment are reviewed de novo, giving the BIA authority to interpret how the law applies. Regulations (8 C.F.R. § 1003.1(d)(3)) restrict the BIA from new fact-finding except in limited, authorised circumstances. In practice, the BIA relies on the record before the immigration judge and the parties’ briefs.
Section B Summary. The BIA appeals process requires careful adherence to strict rules. Parties eligible to appeal must file Form EOIR-26 within 30 days, pay the $110 fee or request a waiver, and frame their appeal on legal or factual errors. The BIA reviews factual findings for clear error and legal issues anew, without taking new evidence. Mastery of procedure and timing is critical to preserve the right to review.
Section C: Common Types of BIA Cases
The Board of Immigration Appeals (BIA) handles a wide spectrum of immigration matters, but certain categories dominate its workload. These case types demonstrate the BIA’s pivotal role in shaping immigration enforcement, relief and detention practices nationwide.
1. Removal and deportation orders
One of the BIA’s principal responsibilities is reviewing appeals of removal orders issued by immigration judges. Individuals facing deportation may argue that the judge erred in finding them removable, or that they were eligible for relief that was wrongly denied. These appeals are especially significant because removal can trigger lengthy or permanent bars to re-entry to the United States.
2. Asylum and withholding of removal
Appeals of asylum and withholding of removal decisions are another major area of the BIA’s docket. Because asylum cases often involve sensitive evidence and credibility determinations, the BIA examines whether judges correctly applied the legal standards and evaluated the record. Precedent decisions from these appeals frequently shape national asylum law, influencing how persecution and eligibility are defined under U.S. and international law.
3. Bond and custody determinations
The BIA reviews certain custody and bond rulings by immigration judges. These cases determine whether an individual may be released from detention during immigration proceedings. Although bond determinations are discretionary, the BIA ensures that immigration judges apply the correct statutory and regulatory standards when weighing risk of flight or danger to the community.
4. Motions to reopen and reconsider
The BIA also decides motions to reopen or reconsider. A motion to reopen asks for reconsideration of a case based on new evidence or changed circumstances, such as altered country conditions or new eligibility for relief. A motion to reconsider argues that the prior decision contained a factual or legal error. Both types of motions are subject to strict filing rules and time limits, but they provide important procedural safeguards against unjust outcomes.
5. Selected DHS decisions
In addition to immigration judge rulings, the BIA has jurisdiction over certain DHS officer decisions. For example, it may review denials of some family-based immigrant visa petitions (Form I-130). While its jurisdiction in this area is limited, these reviews help maintain consistency between USCIS and immigration court practice.
Section C Summary. The BIA’s caseload covers the most consequential areas of immigration law: removal, asylum, detention, motions practice and select DHS determinations. Through these appeals, the BIA ensures lawful, uniform interpretation of statutes and regulations, while protecting against errors in the initial decision-making process.
Section D: Outcomes and Further Review
After reviewing a case, the Board of Immigration Appeals (BIA) issues a written decision. These rulings determine the immediate outcome for the parties involved and often shape broader immigration practice, particularly when designated as precedent. Understanding possible results and avenues for further review is vital for individuals and DHS alike.
1. Possible BIA decisions
The BIA may dismiss an appeal, leaving the immigration judge’s decision in place. It may sustain an appeal, reversing or modifying the decision if legal or factual errors are found. The BIA may also remand a case back to the immigration judge for additional proceedings, often providing guidance on how issues should be reconsidered.
2. Precedent decisions
Some decisions are designated as precedential, making them binding on all immigration judges and DHS officers nationwide. Precedent decisions provide authoritative interpretations of immigration law and ensure consistent application across jurisdictions. They have clarified key issues such as eligibility standards for asylum, cancellation of removal and bond determinations.
3. Judicial review by the U.S. Courts of Appeals
If dissatisfied with the BIA’s ruling, a party may file a petition for review with the appropriate U.S. Court of Appeals. Federal courts generally review legal and constitutional claims, while giving deference to the BIA’s factual findings. Importantly, the petition must be filed within 30 days of the BIA’s final order. This deadline is jurisdictional—if it is missed, federal courts almost always lack power to hear the case.
4. Role of the Attorney General
The Attorney General has authority to review BIA decisions through case certification. Though rarely used, this power enables the Attorney General to set nationwide policy by issuing binding interpretations of immigration law. Certification cases can have major implications, particularly in areas where the law is unsettled or contested.
Section D Summary. The BIA can dismiss, sustain or remand appeals, with some rulings designated as binding precedent. Further review is available through petitions for review in the federal Courts of Appeals, which must be filed within 30 days. The Attorney General’s certification power adds another layer of oversight and policy influence. Together, these mechanisms ensure multi-tiered review of immigration decisions.
Frequently Asked Questions (FAQs)
What is the difference between the BIA and immigration court?
Immigration courts conduct initial hearings and issue rulings through immigration judges. The Board of Immigration Appeals is the administrative appellate body that reviews those rulings. It does not hold new trials but reviews the existing record and legal arguments.
How long does a BIA appeal take?
The timeline varies depending on case complexity, whether briefs are filed, and caseload. Many appeals take several months, while some may extend beyond a year. The process is not quick and requires patience and strict adherence to procedural rules.
Can the BIA grant asylum directly?
Yes, in some cases the BIA may grant asylum or other relief if the record supports it. More often, however, the Board remands asylum cases to immigration judges for further proceedings, particularly where additional fact-finding is necessary.
What happens if the BIA denies an appeal?
If the BIA denies an appeal, the immigration judge’s decision becomes final and enforceable. The individual may still file a petition for review with the appropriate U.S. Court of Appeals within 30 days, provided the court has jurisdiction to hear the case.
Do I need an attorney for a BIA appeal?
Representation is not legally required, but BIA appeals involve complex law and rigid deadlines. Most experts strongly advise securing an immigration attorney to prepare and file the appeal, as professional representation can significantly improve the likelihood of success.
Conclusion
The Board of Immigration Appeals is the highest administrative authority in the U.S. immigration system. By reviewing immigration judge and selected DHS decisions, it ensures that immigration laws are applied fairly and consistently. Its authority extends to removal, asylum, custody, motions practice and select visa petition determinations, making its decisions consequential for individuals, families and employers alike.
Appealing to the BIA requires precision: filing the correct form, meeting the strict 30-day deadline, and arguing legal or factual error based on the existing record. While demanding, the process provides a vital safeguard against mistakes in immigration court. Beyond the BIA, oversight by the federal Courts of Appeals and the Attorney General ensures that immigration law remains subject to multiple layers of review.
For anyone engaged in immigration proceedings, preparation and expert guidance are essential. Understanding how the BIA functions, its procedures and potential outcomes helps appellants safeguard their rights and equips employers and representatives to navigate the system effectively.
Glossary
| Term | Definition |
|---|---|
| BIA | The Board of Immigration Appeals, the highest administrative body for interpreting and applying U.S. immigration law. |
| EOIR | The Executive Office for Immigration Review, an agency within the Department of Justice that oversees immigration courts and the BIA. |
| Form EOIR-26 | The official Notice of Appeal form used to challenge an immigration judge’s decision before the BIA. |
| Form EOIR-26A | A request form for a fee waiver when the appellant cannot afford the $110 appeal filing fee. |
| Motion to Reopen | A request for the BIA to review a case again based on new evidence or changed circumstances, such as updated country conditions. |
| Motion to Reconsider | A request for the BIA to re-examine its decision due to an alleged legal or factual error in the prior ruling. |
| Petition for Review | A filing with a U.S. Court of Appeals seeking judicial review of a BIA decision, generally required within 30 days of the final order. |
| Precedent Decision | A BIA decision designated as binding nationwide on immigration judges and DHS officers, setting authoritative interpretations of immigration law. |
Useful Links
| Resource | Link |
|---|---|
| Board of Immigration Appeals (EOIR) official page | https://www.justice.gov/eoir/board-of-immigration-appeals |
| EOIR Forms including EOIR-26 | https://www.justice.gov/eoir/eoir-forms |
| U.S. Courts of Appeals | https://www.uscourts.gov/about-federal-courts/court-role-and-structure |
| Immigration Court Practice Manual | https://www.justice.gov/eoir/office-chief-immigration-judge-operational-policies-and-procedures-memoranda |
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.