C.F.R. » Title 8 » CHAPTER V—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, DEPARTMENT OF JUSTICE › SUBCHAPTER A—GENERAL PROVISIONS › PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW › Subpart C—Immigration Court—Rules of Procedure

8 C.F.R. § 1003.38

Appeals

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) Decisions of Immigration Judges may be appealed to the Board of Immigration Appeals as authorized by 8 CFR 1003.1(b).

(b) This paragraph (b) addresses filing deadlines for appeals to the Board of Immigration Judge decisions.

(1) Except as provided in paragraph (b)(2) of this section, in all cases the Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) shall be filed directly with the Board within 10 calendar days of the Immigration Judge's decision.

(2) In cases where an Immigration Judge has adjudicated an asylum application and did not deny the application under 208(a)(2)(A), (B), or (C) of the Act, the Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) shall be filed directly with the Board within 30 calendar days of the Immigration Judge's decision.

(3) In all cases, the Board appeal filing deadline shall be calculated from the date of the stating of an Immigration Judge's oral decision or the mailing or electronic notification of an Immigration Judge's written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day. A Notice of Appeal (Form EOIR-26) may not be filed by any party who has waived appeal. Any issue not raised in the Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) shall be deemed waived.

(c) The date of filing of the Notice of Appeal (Form EOIR-26) shall be the date the Notice is received by the Board.

(d) A Notice of Appeal (Form EOIR-26) must be accompanied by the appropriate fee or by an Appeal Fee Waiver Request (Form EOIR-26A). If the fee is not paid or the Appeal Fee Waiver Request (Form EOIR-26A) is not filed within the specified time period indicated in paragraph (b) of this section, the appeal will not be deemed properly filed and the decision of the Immigration Judge shall be final to the same extent as though no appeal had been taken.

(e) Within five working days of any change of address, an alien must provide written notice of the change of address on Form EOIR-33 to the Board. Where a party is represented, the representative should also provide to the Board written notice of any change in the representative's business mailing address.

(f) Briefs may be filed by both parties pursuant to 8 CFR 1003.3(c).

(g) In proceedings before the Board on behalf of a respondent, a practitioner must enter an appearance using Form EOIR-27 or Form EOIR-60.

(1) Entering an appearance using Form EOIR-27. In proceedings before the Board, in order to become the practitioner of record, which authorizes and requires the practitioner to appear before the Board on behalf of the respondent, file all documents on behalf of the respondent, and accept service of process of all documents filed in the proceedings, a practitioner must enter an appearance using Form EOIR-27.

(i) Filing Form EOIR-27. The practitioner must file a copy of the Form EOIR-27 with the Board and serve a copy on DHS as required by 8 CFR 1003.32. The practitioner must file and serve a Form EOIR-27 even if the practitioner has previously filed a separate Notice of Entry of Appearance with DHS for appearances before DHS or a Form EOIR-28 with the immigration court, or has previously entered a limited appearance using a Form EOIR-60 in connection with document assistance under paragraph (g)(2) of this section.

(ii) Effect of filing Form EOIR-27. A practitioner who enters an appearance using Form EOIR-27 is the practitioner of record and must appear before the Board on behalf of the respondent, file all documents on behalf of the respondent, and accept service of process of all documents filed in the proceedings, consistent with 8 CFR 1292.5. Filing a Form EOIR-27 provides the practitioner with access to the record of proceedings during the course of proceedings. A respondent shall be considered represented for the proceedings in which a Form EOIR-27 has been filed.

(iii) Withdrawal or substitution. A practitioner who enters an appearance on behalf of a respondent before the Board by filing a Form EOIR-27 remains the practitioner of record unless the Board permits withdrawal or substitution during proceedings only upon written motion submitted without fee.

(2) Entering a limited appearance for document assistance using Form EOIR-60. A practitioner who provides assistance to a pro se respondent with the drafting, completion, or filling in of blank spaces of a motion, brief, form, or other specific document or set of documents intended to be filed with the Board, regardless of whether such assistance is considered “practice” or “preparation” as defined in § 1001.1, must disclose such limited assistance to the Board using Form EOIR-60, unless pursuant to paragraph (g)(1) the practitioner has filed a Form EOIR-27 to become the practitioner of record.

(i) Filing Form EOIR-60. A Form EOIR-60 must not be filed as a standalone document. The single Form EOIR-60 must be filed with the Board at the same time as the document or set of documents with which the practitioner assisted. Any subsequent filing of a document or set of documents with which a practitioner assisted must be accompanied by a new Form EOIR-60.

(ii) Effect of Filing Form EOIR-60. A practitioner who enters a limited appearance using Form EOIR-60 is not the practitioner of record, is not required to appear before the Board, and is not required to submit a motion to withdraw or substitute. The submission of a Form EOIR-60 does not create additional ongoing obligations between the practitioner, the respondent, and EOIR. An appearance through Form EOIR-60 does not provide the practitioner with access to the record of proceedings. A respondent who received assistance pursuant to this paragraph is not represented, remains pro se, and is subject to service of process of all documents filed in the proceedings, consistent with 8 CFR 1292.5.

(3) Completing an appearance form, proof of qualification, disclosure requirements, and identification. The practitioner must properly complete and sign any Form EOIR-27 or Form EOIR-60, as required by the form instructions. A practitioner's personal appearance or signature on the Form EOIR-27 or Form EOIR-60 constitutes a representation that the person is authorized and qualified to appear as a practitioner in accordance with 8 CFR 1292.1. Further proof that the practitioner meets the qualifications of a practitioner as defined in 8 CFR 1292.1 may be required. The completion of a Form EOIR-27 or Form EOIR-60 in connection with an application or form that requires disclosure of the preparer does not relieve a practitioner from complying with the particular disclosure requirements of the application or form. Notwithstanding the filing of a Form EOIR-27 or Form EOIR-60, the practitioner must identify themselves by name, accompanied by their signature, on any document filed or intended to be filed with the Board pursuant to an appearance under paragraph (g)(1) or (2) of this section.

[52 FR 2936, Jan. 29, 1987. Redesignated at 57 FR 11571, Apr. 6, 1992, as amended at 60 FR 34089, June 30, 1995; 61 FR 18908, Apr. 29, 1996; 86 FR 70723, Dec. 13, 2021; 87 FR 56258, Sept. 14, 2022; 91 FR 5278, Feb. 6, 2026]
Notes of Decisions
Cited in 227 cases (59 in the last 5 years), 2003–2026 · leading case: Kyu O. Oh v. Alberto Gonzales, Attorney Gen., 406 F.3d 611 (9th Cir. 2005).
Sort: Relevance Newest Treatment
Kyu O. Oh v. Alberto Gonzales, Attorney Gen., 406 F.3d 611 (9th Cir. 2005). · cites it 3× “See 8 C.F.R. §§ 1003.38 (b), (c). On January 24, Oh and her counsel completed the necessary paperwork, and on February 4 her counsel mailed the notice of appeal along with all paperwork and fees by overnight mail to the BIA for delivery by noon, February 5.”
Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008). · cites it 6× “8 C.F.R. § 1003.38 (b). In this case, the Liadovs' notice of appeal was filed one day late.”
Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009). · cites it 2× “When a petitioner files no brief and relies entirely on the notice of appeal to make an immigration argument, as he may do before the BIA, see 8 C.F.R. § 1003.38 (f), then the notice of appeal serves in lieu of a brief, and he will be deemed to have exhausted all issues raised…”
Jacqueline Stevens v. U.S. Attorney Gen., 877 F.3d 1293 (11th Cir. 2017). · cites it 2× “§ 1252 ; 8 C.F.R. § 1003.38 . 7 That immigration proceedings do not contain safeguards identical to those safeguards identified by the Supreme Court in Butz is not outcome determinative here.”
Irigoyen-Briones v. Holder, 644 F.3d 943 (9th Cir. 2011). · cites it 7× “The BIA held that the thirty-day deadline was jurisdictional, so “the Board does not have the authority to extend the time in which to file a notice of appeal” under 8 C.F.R. § 1003.38 (b), following its own 2006 decision in Matter of Liadov.”
Irigoyen-Briones v. Holder, 582 F.3d 1062 (9th Cir. 2009). · cites it 38× “Because 8 C.F.R. § 1003.38 (b) is ambiguous regarding the BIA's jurisdiction to consider late filings, and because the BIA's interpretation in Liadov is not plainly erroneous or inconsistent with the language of the regulation, we hold that Supreme Court precedent requires us to…”
Khan v. U.S. Dep't of Just., 494 F.3d 255 (2d Cir. 2007). · cites it 4× “However, pursuant to 8 C.F.R. § 1003.38 , 2 petitioner’s Notice of Appeal was due on or before December 27, 2005.”
Zhong Guang Sun v. United States Dep't of Just., 421 F.3d 105 (2d Cir. 2005). · cites it 2× “” 8 C.F.R. § 1003.38 (c) (emphasis added). 5 The petitioner’s argument on this score is thus entirely without merit.”
Darvin Daniel Perez-Sanchez v. U.S. Attorney Gen., 935 F.3d 1148 (11th Cir. 2019). “See 8 C.F.R. § 1003.38 (f). 7 The BIA, citing Matter of L-E-A- , 27 I.”
Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008). “See 8 C.F.R. § 1003.38 (b), (c). The second notice of appeal sought review of the IJ’s denial of Cerezo’s motion to reopen.”
Chuks Goddy Nwogu v. Alberto Gonzales, Attorney Gen. of the United States, 491 F.3d 80 (2d Cir. 2007). · cites it 2× “must be filed within 30 calendar days of an [IJJ’s oral decision ---- See 8 C.F.R. §§ 1003.38 (b), (c). In the instant case, the [IJJ’s decision was rendered orally on September 8, 2005.”
Liadov, 23 I. & N. Dec. 990 (BIA 2006). · cites it 2× “8 C.F.R. § 1003.38 (b) (2006). Furthermore, in cases involving applications for asylum, the time for filing administrative appeals is also set by statute.”
Show all 227 citing cases →
— 8 C.F.R. § 1003.38(a) — 1 case
Luz Meyers v. U.S. Attorney Gen. (11th Cir. 2024).
— 8 C.F.R. § 1003.38(b) — 2 cases
Gayle v. Warden Monmouth Cnty. Corr. Inst., 838 F.3d 297 (3rd Cir. 2016).
Irigoyen-Briones v. Holder, 582 F.3d 1062 (9th Cir. 2009). “Because 8 C.F.R. § 1003.38 (b) is ambiguous regarding the BIA's jurisdiction to consider late filings, and because the BIA's interpretation in Liadov is not plainly erroneous or inconsistent with the language of the regulation, we hold that Supreme Court precedent requires us to…”
— 8 C.F.R. § 1003.38(g)(1)(ii) — 1 case
F-b-g-m- & J-e-m-g, 29 I. & N. Dec. 52 (BIA 2025).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.