4.2 - Process

(a) Immigration Judge Decision — An immigration judge presides over courtroom proceedings in removal, deportation, exclusion, and other proceedings.  See Chapter 1.2(c) (Relationship to the Immigration Court).  The parties in such proceedings are the respondents and DHS.  See Chapter 1.2(d) (Relationship to the Department of Homeland Security (DHS)).

          (1) Oral vs. written — The decision of an immigration judge may be rendered either orally or in writing.  When a decision is rendered orally, the immigration judge recites the entire decision in the parties’ presence and provides them with a written memorandum order summarizing the oral decision.  When a decision is rendered in writing, the decision is served on the parties by first class mail or by personal service, mail, or electronic notification.  See 8 C.F.R § 1003.37.

          (2) Appeal to the Board vs. motion before the immigration judge — After the immigration judge renders a final decision, a party may either file an appeal with the Board or file a motion with the immigration judge.  See Chapter 4.14 (Interlocutory Appeals).  Once a party files an appeal with the Board, jurisdiction is vested with the Board, and the immigration judge is divested of jurisdiction over the case.  Accordingly, once an appeal has been filed with the Board, an immigration judge may no longer entertain a motion to reopen or a motion to reconsider.  For that reason, if a party first files a motion with the immigration judge and then files an appeal with the Board, the immigration judge loses jurisdiction over the motion, and the record of proceedings is transferred to the Board for consideration of the appeal.

          (3) Certification vs. appeal — Certification to the Board is entirely separate and distinct from the filing of an appeal, and the two should not be confused.  See Chapter 4.18 (Certification by an immigration judge).

          (b) Filing — If an appeal is taken from the decision of an immigration judge, it must be filed properly and within the time allowed.  See Chapters 3 (Filing with the Board), 4.5 (Appeal Deadlines).  An appeal of an immigration judge decision must be filed directly with the Board, using the Notice of Appeal (Form EOIR‑26).  8 C.F.R. § 1003.3(a).  See Chapter 3.1 (Delivery and Receipt).  The appeal may not be filed with DHS or an immigration court.  Erroneous filing of an appeal with DHS or an immigration court does not constitute filing with the Board and will not excuse the filing party from the appeal deadline.

If an appeal is received by the Board but has not been properly filed (for example, the filing fee is missing or Proof of Service has not been completed), the appeal may be rejected.  See Chapter 3.1(c) (Defective Filings); Chapter 3.1(c)(1) (Meaning of “rejected”).  Rejection does not extend the filing deadline, except in cases of a denied fee waiver, as explained in Chapter 3.4(c) (When Waived).  Instead, it can result in an untimely filing and, ultimately, dismissal of the appeal.  See Chapter 4.5(b) (Extensions).

          (c) Stays — A respondent may seek a stay of deportation or stay of removal while an appeal is pending before the Board.  Stays are automatic in some instances, but discretionary in others.  Stays are discussed in Chapter 6 (Stays and Expedite Requests).

          (d) Processing — Once an appeal is properly filed, a written receipt is sent to both the respondent and DHS.  The Board will then obtain the record of proceedings from the immigration court.  In appropriate cases, a briefing schedule is provided to both sides.  Also, in appropriate cases, a transcript is prepared, and copies are sent to the parties along with the briefing schedule.  See subsections (e), (f) below.

          (e) Briefing Schedule — When a Notice of Appeal is filed, a receipt is issued to acknowledge receipt of the appeal.  A briefing schedule is then issued in which the parties are notified of the deadlines for filing a brief.  See Chapter 4.7 (Briefing Deadlines).  The briefs must arrive at the Board by the dates set in the briefing schedule.  See Chapter 3.1 (Delivery and Receipt).  In the event that a briefing extension is requested and granted, a briefing extension notice is issued.  See Chapter 4.7(c) (Extensions).

For federal court remands, the Board determines whether a brief is required.  If a briefing schedule is set, the parties are notified of the deadlines for filing, and the briefs must arrive at the Board by the set dates.  See Chapters 3.1 (Delivery and Receipt), 4.7 (Briefing Deadlines).

          (f) Transcription — The Board transcribes immigration court proceedings in appropriate cases.

          (1) Preparation of transcripts — The Board transcribes proceedings, where appropriate, after receiving a properly filed appeal from the decision of an immigration judge.  Where a transcript is prepared, the transcript is sent to both parties along with the briefing schedule via regular mail, or through ECAS in eligible cases.  The Board does not entertain requests to send transcripts by overnight delivery or other means.

          (2) Requests for transcripts — Transcripts are not normally prepared for the following types of appeals: bond determinations; denials of motions to reopen (including motions to reopen in absentia proceedings); denials of motions to reconsider; and interlocutory appeals.

Proceedings of these types may in some instances be transcribed at the discretion of the Board.  If a party desires a transcript for any of these types of proceedings, the party should send correspondence with a cover page labeled  “REQUEST FOR TRANSCRIPTION.”  See Appendix E (Cover Pages).  That correspondence should briefly state the reasons for the request. However, a request for transcription does not affect the briefing schedule.  Parties are still required to meet briefing deadlines.

 Copies of digital audio or cassette tape recordings of hearings may be requested by the parties and their practitioner of record.  A Freedom of Information Act (FOIA) request is not required.  Parties may obtain a copy that is not prohibited (e.g., classified information, subject to protective order).  Requests for copies may be made to the Board in person, by mail, or by email.  The Board encourages parties to request a copy of the digitally- or cassette tape-recorded hearings by email using “EOIR.BIA.ROP.Requests@udoj.gov.”  This email address is only to be used for requests for a copy of the official record or portion of the official record.  The Board does not provide self-service copying.  Alternatively, the parties may file a request pursuant to FOIA.  See Chapter 13 (Requesting Records). 

For more information on digitally- or cassette-recorded hearings, parties should consult the Immigration Court Practice Manual, which is available on the EOIR website.

          (3) Defects in the transcript — Obvious defects in the transcript (e.g., photocopying errors, large gaps in the recorded record) should be brought to the immediate attention of the Clerk’s Office.  Such requests should be filed separately under a cover page titled “REQUEST FOR CORRECTION OF TRANSCRIPT.”  See Appendix A (Directory), Appendix E (Cover Pages).  The Board, in its discretion, may remedy the defect where appropriate and feasible.

Defects do not excuse the parties from existing briefing deadlines.  Those deadlines remain in effect until the parties are notified otherwise.  See Chapter 4.7(c) (Extensions).

Where the Board does not or cannot remedy the purported defect in the transcript, and the party believes that defect to be significant to the party’s argument or the adjudication of the appeal, the party should identify the defect and argue its significance with specificity in the appeal brief.  The Board recommends that the brief be supported by a sworn, detailed statement.  The Board will consider any allegations of transcript error in the course of adjudicating the appeal.

          (4) Corrected oral decisions — When an immigration judge issues an oral decision, the immigration judge reviews the transcription of the oral decision and may make minor, clerical corrections to the decision.  These corrected decisions are returned to the Board and served on the parties.  If a party believes the corrections are significant to the party’s argument or the adjudication of the appeal, the party should identify the correction and its significance with specificity in the appeal brief.  Corrections do not excuse the parties from existing briefing deadlines.  If the corrected decision is served after the briefing schedule has expired, the parties should file a “Motion to Accept Supplemental Brief.”  See Chapter 4.6(g) (Supplemental Briefs).

          (5) Stipulated record of proceedings — Whether or not a transcript is available, the respondent and DHS may prepare and sign a stipulation regarding the facts of events that transpired below.  The parties may also correct errors or omissions in the record by stipulation.

          (g) Oral Argument — The Board occasionally grants oral argument at the request of one of the parties.  In such cases, parties present their case orally to a panel of three or more Board Members in a courtroom setting.  See Chapter 8 (Oral Argument).

          (h) Record on Appeal — The actual contents of the record on appeal vary from case to case, but generally include the following items: charging documents; hearing notices; notices of appearance; applications for relief and any accompanying documents; court-filed papers and exhibits; transcript of proceedings and oral decision of the immigration judge, if prepared; written memorandum order or decision of the immigration judge; Notice of Appeal; briefing schedules; briefs; motions; correspondence; and any prior decisions by the Board.  Note that the Board does not automatically provide a copy of the record of proceedings (ROP) to the parties to the proceedings upon filing an appeal.  Parties may receive a copy of the ROP if they file a separate request for a copy.  See Chapter 1.5(e)(3) (Copies for Parties).

          (i) Decision — Upon entry of a decision, the Board serves its decision upon the parties.  See Chapter 1.4(d) (Board Decisions).  The decision is sent by regular mail to the parties, and/or through ECAS in eligible cases.  A courtesy copy of the decision is also sent by regular mail to a represented respondent.