Guide to EOIR 26 in the U.S.

Deportation decisions are made by judges at Immigration Courts. While some are final decisions, others can be challenged, and if possible, overturned. In such cases, Form EOIR-26 is used. But who can file this form, and how? In this article, we’ll explain everything you need to know about EOIR-26.

What is EOIR 26?

EOIR-26, officially known as the Notice of Appeal from a Decision of an Immigration Judge, is used to appeal a removal or deportation or an unfavorable decision issued against you by an Immigration Judge. You file your appeal with a higher court, which in this case, is the Board of Immigration Appeals or BIA, operating under the US Department of Justice. This is a 7-page form covering instructions on how to fill it up. The form is available to download from online at zero cost. But there are filing fees involved.

Who Needs EOIR 26?

Any immigrant or non-immigrant who wants to challenge the Immigration Court’s decision against him or her can file the EOIR-26, provided that it is challengeable. Not all decisions can be challenged, and some are final (more of that in the below sections). The US government grants the rights to every immigrant who is set to be court removed from the country. This is covered in 8 US Code § 1252 – Judicial review of orders of removal.

You include your argument in this form and provide supporting evidence that supports your argument. If accepted, the case will be considered by the BIA for a review and potential overturn of the decision that was issued against you by an Immigration judge.

Reasons for an EOIR 26 Appeal

The main reason someone will file the EOIR-26 is that he/she might think that the decision was unfair. For example, if you do not show up on the day of a court proceeding for some reason, then the Immigration Judge has the authority to make a decision on your case. And more often than not, the decision will go against you. If you can prove that you missed the hearing for genuine reasons that were beyond your control, you should file the form EOIR 26.

Another reason might be to seek more time before you deport. The appeal application, if accepted, will go on for weeks or even months. This will grant you the additional time you can legally stay in the US.

When to Use EOIR-26

You’re requested to use this form as soon as the decision is issued against you. The time frame is 30 days or less from the day of the court decision. Your notice must arrive within 30 days to the BIA office. Late filing is not acceptable, and hence your appeal application will not be accepted.

Also, before filing the case, you need to check where or not you can challenge the decision legally. In another decision, the decision has to be challengeable and is not final.

The immigration judge’s decision is considered final if:

• The non-citizen himself doesn’t want to appeal the decision
• The time to file an appeal has exceeded the allowed time period

The judge will ask you, “Do you waive appeal?” after announcing the decision. If you say yes, then you cannot file an appeal after this. But you do not have to make your decision on the same day. If you want to think about it, you can state “reserve appeal” and get a 30-day time period for it.

For all other scenarios, you can file the EOIR-26 form.

Where to Appeal with EOIR-26?

You need to send your appeal application or the form EOIR-26 to the Board of Immigration Appeals Clerk’s Office. The address is:

Board of Immigration Appeals
Clerk’s Office
5107 Leesburg Pike, Suite 2000
Falls Church, VA 22041

You must submit by courier within 30 days along with the fees.

How to Fill Up the Form EOIR 26?

You appeal to the BIA using the Form EOIR-26. This is a 7-page form, out of which four pages are instructions. The form will ask you 12 questions. So take out an hour or two to fill out this form properly. Here are all the 12 questions:

1. List Name and “A” Numbers (s) of all Respondent(s)/Applicant(s). You need to include the name and the corresponding Alien Registration Number of all applicants. If the name and the A-number are not listed in this section, their appeal will not be considered.
2. I am the Respondent/Applicant or DHS-ICE. Select Respondent/Applicant since that’s what you’re applying as.
3. I am Detained or Not Detained. Tick the correct box depending on whether you’re detained or not.
4. My last hearing was at ____. Put in the correct location along with City and State.
5. What decision are you appealing? In this section, you need to select the appropriate case you’re appealing for. The three options available are appealing against merit proceedings, appealing against bond proceedings, or appealing against a decision denying a motion to reopen or reconsider. Tick the correct option after consultation with your attorney.
6. State in detail the reason(s) for this appeal. This is your chance to strengthen your appeal application. You need to convince the judges at BIA to consider your application. You must clearly specify the facts why you want to appeal the judgment and the laws you base your appeal on. If the judge finds that you don’t have a strong enough reason to appeal to the decision, then your EOIR-26 appeal application most likely not be considered. For explaining, take as many sheets as you want, but explain clearly and in detail.
7. Do you desire oral argument before the Board of Immigration Appeals? A yes or no question. For this, you need to submit an additional statement describing why you want an oral argument.
8. Do you intend to file a separate written brief or statement after filing this Notice of Appeal? A yes or no question.
9. Sign here. Provide your signature and date.
10. Mailing address of Respondent(s)/Applicant(s). Provide your name and current street address, apartment or room number, city, state, zip code, and telephone number.
11. Mailing address of Attorney or Representative of Respondent(s)/Applicant(s).  Provide the name and current street address, apartment or room number, city, state, zip code, and telephone number of your representative.
12. Proof of Service. Provide your name, address, and signature.

If you change your address to a place other than the one mentioned above, you’re required to notify the Board within five days by submitting the EOIR-33 BIA form.

EOIR-26 Appeal Cost

The filing fee for EOIR-26 is $110 for each applicant. You must pay this via check or money order in US currency. You must send the check along with your application. If you’re not financially able to pay the fees, you can request a fee waiver.

For a fee waiver request, you must submit the EOIR-26A, Fee Waiver Request form, along with your application.

EOIR-26 and Lawyers

You have the options to be represented by an attorney or representative in front of the BIA. If that’s the case, they must file the EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals. This form must be completed by the attorney and submitted along with your EOIR-26 form. The lawyers will charge their fees separately. So expect to incur more for your appeal.

Conclusion

When filing these appeals, you need to understand the complicated and confusing nature of appeals. Also, there’s zero room for errors. Therefore, it’s important to consult with your attorney multiple times before proceeding with EOIR-26.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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