Immigration Appeals, Motions & Federal Petitions for Review
A missed deadline can foreclose a remedy. Learn the differences among BIA appeals, motions to reopen, motions to reconsider, in absentia rescission, and federal circuit review.
Appealing an immigration judge to the BIA
A person who believes an immigration judge made an error can generally file Form EOIR-26 with the Board of Immigration Appeals. Ordinary deadline: 30 calendar days after the oral decision or mailing of the written decision; the notice must be received by the BIA by the deadline. Waiving appeal before the immigration judge can make the decision final. Some proceedings—including credible- or reasonable-fear reviews—have different, restricted review paths.
Motion to reopen: new facts and evidence
A motion to reopen requests another opportunity to present material facts that were not previously available, supported by evidence. Ordinary deadline: 90 days from the final administrative order, with numerical limits. Exceptions can apply for certain changed-country-conditions asylum/CAT claims, joint motions, and other specific circumstances. Equitable tolling may be argued in some cases, but should never be assumed.
Motion to reconsider: errors in the existing decision
A motion to reconsider identifies errors of law or fact in the decision on the existing record, with supporting legal authority; it is not normally the vehicle for new evidence. Ordinary deadline: 30 days after the final administrative decision, with numerical limits. Where the motion goes depends on which tribunal issued the operative decision.
Reopening an in absentia removal order
When a person was ordered removed after missing a hearing, the rescission procedure depends on the reason: 180 days for exceptional circumstances; generally at any time for legally insufficient notice or qualifying custody through no fault of the person. The notice history, address obligations, proof of service, and hearing record all matter. Special rules apply to older proceedings and other types of orders.
Petitions for review in federal courts of appeals
A final removal order may be challenged through a petition for review in the appropriate federal circuit court. General deadline: 30 days after the final order under 8 U.S.C. § 1252(b)(1). Filing a motion with the BIA ordinarily does not extend that deadline, and a petition for review does not automatically stay removal. Jurisdiction, exhaustion, agency record limits, and the need for emergency stay relief require immediate assessment.
Stay requests and emergency litigation
A stay of removal may be sought from the agency or reviewing court when authorized. Detention habeas, APA claims, and petitions for review are different forms of relief, with important jurisdictional boundaries: a district-court habeas petition generally is not a substitute for review of a removal order.
Official procedural references
EOIR: Appeal an Immigration Judge’s Decision · Motions to reopen · In absentia motions · 8 U.S.C. § 1252