To appeal a decision made by the immigration judge (“IJ”), you must affirmatively reserve that right when asked by the IJ if you plan to appeal. It’s safest to reserve your right to appeal, even if you aren’t sure whether you want to appeal. It doesn’t mean you have to appeal, but it leaves the option open for you to do so.
If you choose to appeal, the appeal must be received by the Board of Immigration Appeals (“BIA”) within 30 days of the IJ’s decision or else it’s automatically denied. The board does not observe the “mailbox” rule.
In other words, it’s not sufficient to have proof of postage that you sent the appeal before the 30-day deadline, if it doesn’t actually arrive by that 30-day deadline. Timeliness is ultimately based on the time stamp placed on the document upon its arrival at BIA.
When filing an appeal, make sure you have the correct filing deadline. The 30-day rule counts the day of the IJ’s decision as day 0. The day following the IJ’s decision is day 1 and so forth. Make sure to calculate your deadline correctly. You don’t want to miss your deadline because you miscounted!
The 30-day deadline also applies to DHS appeals. If you win a cancellation of removal or other type of defensive application, the government must appeal its decision within the 30-day window. Otherwise, its appeal is also automatically denied.
Finally, It’s best not to wait until the last minute to file. There can be unexpected delays, unfavorable weather conditions, etc. Such delays are not tolerated by the BIA (although if the cause of the delay was unavoidable because of a natural or man-made disaster, you can file a motion asking the BIA to make an exception).
So, file ahead of time and don’t miss your deadline!
