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BIA Practice Manual

BIA Practice Manual
Chapter 4 - Appeals of Immigration Judge Decisions

4.7 - Briefing Deadlines

(a) Due Date

In appropriate cases, the Board sets briefing schedules and informs the parties of their respective deadlines for filing briefs.  See Chapter 4.2 (Process).  A party may not file a brief beyond the deadline set in the briefing schedule unless the brief is filed with the appropriate motion.  See Chapter 4.6(g) (Supplemental Briefs), 4.6(h) (Reply briefs), 4.7(d) (Untimely Briefs).  Briefs must be submitted in accordance with the rules for timely filings at Chapter 3.1(b) (Must be “Timely”).

      (1) Non-detained cases - When the respondent is not detained, the parties are generally granted 21 calendar days each, sequentially, to file their initial briefs.  See Chapter 3.1(b)(1) (Construction of “day”).  The appealing party is provided 21 days from the date of the briefing schedule notice to file an appeal brief, and the opposing party will have an additional 21 days (marked from the date the appealing party’s brief was due) in which to file a response brief.  8 C.F.R. § 1003.3(c)(1). 

If both parties file an appeal (i.e. cross-appeals), then both parties are granted the same 21-day period in which to file an appeal brief. See 8 C.F.R. § 1003.3(c)(1).  If either party wishes to reply to the appeal brief of the other, that party should comply with the rules for reply briefs.  See Chapter 4.6(h) (Reply Briefs).

      (2) Detained cases - When an appeal is filed in the case of a detained respondent, the respondent and DHS are both given the same 21 calendar days in which to file their initial briefs.  The Board will accept reply briefs filed by DHS or by the respondent within 14 days after expiration of the briefing schedule.  However, the Board will not suspend or delay adjudication of the appeal in anticipation of, or in response to, the filing of a reply brief.  See Chapter 4.6(h) (Reply Briefs).

      (3) Federal court remands - If a briefing schedule is set, the parties are both given the same 21 calendar days in which to file their initial briefs.  If either party wishes to reply to the appeal brief of the other, that party should comply with the rules for reply briefs.  See Chapter 4.6(h) (Reply Briefs).  The Board, however, will not suspend or delay adjudication of the appeal in anticipation of, or in response to the filing of a reply brief.

(b) Processing

If a brief arrives at the Board and is timely, the brief is added to the record of proceedings and considered in the course of the adjudication of the appeal.  If a brief arrives at the Board and is untimely, the brief is rejected and returned to the sender.  See Chapter 3.1(c)(1) (Meaning of “rejected”).  The Board may reject a brief as untimely at any time prior to the final adjudication of the appeal.

The Board does not issue receipts for briefs.  If a party wishes to confirm the Board’s receipt of a brief, the party should call the Automated Case Information Hotline for that information or, in the alternative, contact the Clerk’s Office.  See Chapter 1.6(b) (Telephone Calls), Appendix A (Directory), Appendix H (Hotlines).  If a party wishes to document the Board’s receipt of a brief, the party should either (i) save proof of delivery (such as a courier’s delivery confirmation or a return receipt from the U.S. Postal Service) or (ii) request a conformed copy.  See Chapter 3.1(d)(3) (Conformed copies).

(c) Extensions

The Board has the authority to set briefing deadlines and to extend them.  A motion to request an extension of the briefing deadline needs to comply with the general rules and procedures for motions and filing.  See Chapter 3 (Filing with the Board), Chapter 5.2 (Filing a Motion).  The filing of an extension request does not automatically extend the filing deadline, nor can the filing party assume that a request will be granted.  Until such time as the Board affirmatively grants an extension request, the existing deadline stands.

      (1) Policy - In the interest of fairness and the efficient use of administrative resources, extension requests are not favored.  A briefing deadline must be met unless the Board expressly extends it.  There is no automatic entitlement to an extension of the briefing schedule by either party.  If an extension request is denied, a motion to reconsider such denial will not be considered by the Board.

           (A) Non-detained cases - It is the Board’s policy to grant one briefing extension per party, if requested in a timely fashion.  When a briefing extension is granted, the Board’s policy is to grant an additional 21 days to file a brief regardless of the amount of time requested.  The 21 days are added to the original filing deadline. Extensions are not calculated from the date the request was made or the date the request was received.  It is also the Board’s policy not to grant second briefing extension requests.  Second requests are granted only in extraordinary circumstances not foreseeable at the time the first request was made (e.g., death, serious illness or medical condition, natural or manmade disaster).

           (B) Detained cases - It is the Board’s policy to grant one briefing extension per case, if requested in a timely fashion.  If a briefing extension is granted, the Board’s policy is to grant an additional 21 days to file a brief regardless of the amount of time requested.  The 21 days are added to the original filing deadline and applies to both parties.  Extensions are not calculated from the date the request was made or the date the request was received.  It is also the Board’s policy not to grant second briefing extension requests.  Second requests are granted only in extraordinary circumstances not foreseeable at the time the first request was made (e.g., death, serious illness, natural or manmade disaster).

      (2) Request deadline - Extension requests must be received by the Board by the brief’s original due date. Extension requests received after the due date will not be granted.  

The timely filing of an extension request does not relieve the requesting party of the obligation to meet the filing deadline. Until the extension request is affirmatively granted by the Board, the original deadline remains in effect.  If an extension request is denied, a motion to reconsider such denial will not be considered by the Board.

      (3) Duty to avoid delay - All parties have an ethical obligation to avoid delay.  The Board’s deadlines are designed to provide ample opportunity for filing, and a conscientious party should be able to meet these deadlines.

      (4) Contents - Extension requests should be labeled “BRIEFING EXTENSION REQUEST” and be captioned accordingly. See Appendix E (Cover Pages). An extension request should indicate clearly:

  • when the brief is due
  • the reason for requesting an extension
  • a representation that the party has exercised due diligence to meet the current deadline
  • that the party will meet a revised deadline
  • Proof of Service upon the other party

(d) Untimely Briefs

If a party wishes the Board to consider a brief despite its untimeliness, the brief should be accompanied by a written motion entitled “MOTION TO ACCEPT LATE-FILED BRIEF” and comply generally with the rules and procedures for motions and filings.  See Chapter 3 (Filing with the Board), Chapter 5.2 (Filing a Motion).  If the motion is filed without the brief, the brief will be rejected.  See Chapter 3.1(c)(1) (Meaning of “rejected”).  Thus, the motion and the brief need to be submitted together.

The Board has the discretion to consider a late-filed brief.  Motions to accept a late-filed brief are not favored.  If no request to extend the briefing schedule has been previously made, such motion to accept late-filed brief will only be granted upon the showing of good cause for failing to meet the briefing deadline.  In all other cases, the moving party must demonstrate extraordinary circumstances (e.g., death, serious illness, natural or manmade disaster) to warrant a favorable exercise of discretion.  A motion to accept late-filed brief should set forth in detail the reasons for the untimeliness, and the motion should be supported by affidavits, declarations, or other evidence.  If the motion is granted, the motion and brief are incorporated into the record, and the brief is considered by the Board.  If the motion is denied, the motion is retained as part of the record, but the brief is removed without consideration, and a motion to reconsider such denial will not be considered by the Board.  In either case, the parties are notified of the Board’s decision on the motion.

Parties may file a motion to accept a late-filed brief only once. Subsequent late-filed brief motions will not be considered. Motions to reconsider denials of late-filed brief motions will also not be considered.

(e) Decision not to File a Brief

If a party indicates on a Notice of Appeal (Form EOIR 26) that a brief will be filed but later decides not to file a brief, that party should notify the Board in writing before the date the brief is due.  The filing should have a cover page clearly labeled “BRIEFING WAIVER” and expressly indicate that the party will not be filing a brief.  See Appendix E (Cover Pages).

Failure to file a brief after an extension request has been granted is highly disfavored.  See Chapter 4.16 (Summary Dismissal).

(f) Failure to File a Brief

When a party indicates on the Notice of Appeal (Form EOIR 26) that they will file a brief and thereafter fails to file a brief and fails to explain the failure to do so, the Board may summarily dismiss the appeal on that basis.  8 C.F.R. § 1003.1(d)(2)(i)(E). See Chapter 4.16 (Summary Dismissal).