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BIA Practice Manual

BIA Practice Manual
Chapter 4 - Appeals of Immigration Judge Decisions

4.16 - Summary Dismissal

(a) Nature of “Summary” Dismissal — Under certain circumstances, the Board is authorized to dismiss an appeal without reaching its merits.  See 8 C.F.R. § 1003.1(d)(2)(i).

(b) Failure to Specify Grounds for Appeal — When a party takes an appeal,  the Notice of Appeal (Form EOIR‑26) must identify the reasons for the appeal.  A party should be specific and detailed in stating the grounds of the appeal, specifically identifying the finding of fact, the conclusions of law, or both, that are being challenged.  8 C.F.R. § 1003.3(b).  An appeal, or any portion of an appeal, may be summarily dismissed if the Notice of Appeal (Form EOIR‑26), and any brief or attachment, fails to adequately inform the Board of the specific reasons for the appeal.  8 C.F.R. § 1003.1(d)(2)(i)(A).

(c) Failure to File a Brief — An appeal may be summarily dismissed if the Notice of Appeal (Form EOIR‑26) indicates that a brief or statement will be filed in support of the appeal, but no brief, statement, or explanation for not filing a brief is filed within the briefing deadline.  8 C.F.R. § 1003.1(d)(2)(i)(E).  See Chapter 4.7(e) (Decision not to File a Brief).

(d) Other Grounds for Summary Dismissal — An appeal can also be summarily dismissed for the following reasons:

  • the appeal is based on a finding of fact or conclusion of law that has already been conceded by the appealing party
  • the appeal is from an order granting the relief requested
  • the appeal is filed for an improper purpose
  • the appeal does not fall within the Board’s jurisdiction
  • the appeal is untimely
  • the appeal is barred by an affirmative waiver of the right of appeal
  • the appeal fails to meet essential statutory or regulatory requirements
  • the appeal is expressly prohibited by statute or regulation

          See 8 C.F.R. § 1003.1(d)(2)(i).

(e) Sanctions — Practitioners are admonished that the filing of an appeal that is summarily dismissed may be deemed frivolous behavior and may result in discipline.   8 C.F.R. § 1003.1(d)(2)(iii).  See Chapters 4.17 (Frivolous Appeals), 11 (Discipline).