U.S. Department
of Justice
4.3 - Parties
(1) The respondent — Only a respondent who was the subject of an immigration court proceeding, or the respondent’s practitioner of record, may file a Notice of Appeal (Form EOIR-26). An unrepresented or pro se respondent may receive assistance with the Form EOIR-26 from a practitioner who drafted, completed, or prepared the Form EOIR-26 pursuant to a limited appearance for document assistance. See Chapter 2.1(c) (Limited Appearance for Document Assistance); 3.3(b) (Signatures).
The Form EOIR‑26 must identify the names and A-numbers of every person included in the appeal. The appeal is limited to those persons identified. 8 C.F.R. § 1003.3(a)(1). Thus, families should take special care – in each and every filing – to identify by name and A-number every family member included in the appeal. See Chapters 4.4(b)(3) (How many to file), 4.10 (Combining and Separating Appeals).
(2) DHS — DHS is deemed a party to the immigration court proceeding. See Chapter 1.2(d) (Relationship to the Department of Homeland Security (DHS)). Thus, DHS is entitled to appeal an immigration judge decision and is deemed a party for any appeal filed by the respondent. An appeal filed by DHS must also identify the names and A-numbers of every person from whose proceeding DHS is filing that appeal.
(3) Other persons or entities — No other person or entity may file an appeal of an immigration judge decision.
(b) Parties who have Waived Appeal —
(1) Effect of appeal waiver — If the opportunity to appeal is knowingly and intelligently waived, the decision of the immigration judge becomes final. See 8 C.F.R. § 1003.39. If a party waives appeal at the conclusion of proceedings before the immigration judge, that party generally may not file an appeal thereafter. See 8 C.F.R. § 1003.3(a)(1); Matter of Shih, 20 I&N Dec. 697 (BIA 1993). See also 8 C.F.R. § 1003.1(d)(2)(i)(G).
(2) Challenging a waiver of appeal — Generally, a party who waives appeal cannot retract, withdraw, or otherwise undo that waiver. If a party wishes to challenge the validity of their waiver of appeal, the party may do so in one of two ways: either in a timely motion filed with the immigration judge that explains why the appeal waiver was not valid, or in an appeal filed directly with the Board that explains why the appeal waiver was not valid. Matter of Patino, 23 I&N Dec. 74 (BIA 2001). Once an appeal is filed, jurisdiction vests with the Board, and the motion can no longer be ruled upon by the immigration judge. See Chapter 4.2(a)(2) (Appeal to the Board vs. motion before the immigration judge).
(c) Representation — A party to an appeal may appear without representation (“pro se”) or with representation. See Chapter 2 (Appearances before the Board). If a party wishes to be represented, they may be represented by a practitioner of record. See 8 C.F.R. § 1292.1; Chapter 2.1(b) (Entering an Appearance as the Practitioner of Record). Whenever a party is represented, the party should submit all filings, documents, and communications to the Board through their practitioner of record. See Chapter 2.1(b)(7) (Filings After Entry of Appearance as Practitioner of Record). An unrepresented or pro se party may receive assistance from a practitioner with the drafting, completion, or filling in of blank spaces of a specific appeal, motion, brief, form, or other document or set of documents intended to be filed with the Board pursuant to a limited appearance for document assistance. See Chapter 2.1(c) (Limited Appearance for Document Assistance).
(d) Persons not Party to the Appeal — Only a party to an appeal, or a party’s practitioner of record, may file an appeal, motion, or document or send correspondence regarding that appeal. An unrepresented or pro se party may receive assistance from a practitioner with the drafting, completion, or filling in of blank spaces of a specific appeal, motion, brief, form, or other document or set of documents intended to be filed with the Board pursuant to a limited appearance for document assistance. See Chapter 2.1(c) (Limited Appearance for Document Assistance); 3.3(b) (Signatures). Family members, employers, and other third parties may not submit appeals, filings, or supporting documents and material. Filings received from third parties will be returned to the sender where possible.
If anyone who is not a party to the appeal wishes to make a submission to the Board regarding a particular case, that person or entity should make the submission through one of the parties. Third parties who wish to appear as amicus curiae should consult Chapter 2.10 (Amicus Curiae).