BIA Appeals Attorney: Motions to Reopen, Reconsider and Petitions for Review

When an immigration judge or USCIS rules against you, the decision is usually not the end of the case, but the time to challenge it is short and the rules are unforgiving. Capitol Law Partners handles appeals to the Board of Immigration Appeals, motions to reopen and reconsider, appeals of USCIS denials to the Administrative Appeals Office, and petitions for review in the federal courts of appeals, including cases lost by other counsel.

What a BIA appeals attorney does for you

• Obtain the decision, the hearing recording and the exhibits, and calendar every deadline.
• File the Notice of Appeal, Form EOIR-26, with a statement of the issues specific enough to avoid summary dismissal.
• Review the transcript for errors of law, misapplied standards, findings without support in the record and due process problems, then brief them.

Appeals to the Board of Immigration Appeals

Deadline, automatic stay and briefing

The Notice of Appeal must be received by the Board, not mailed, within 30 calendar days of the immigration judge's decision, and there is no extension. A timely appeal automatically stays execution of the removal order until the Board rules. Once the transcript is prepared, the Board issues a briefing schedule, generally 21 days per side with a single extension available. The Board decides on the record made before the judge and does not take new evidence; new evidence belongs in a motion to remand.

Standards of review and precedent

The Board reviews findings of fact, including credibility, only for clear error, and reviews questions of law, discretion and judgment de novo. An appeal that argues the judge should have believed you rarely succeeds; an appeal built on a misapplied legal standard, an ignored argument or a finding the record does not support has a real chance. Precedent decisions, issued by three-member panels, bind immigration judges and DHS nationwide, while the far more common non-precedent decisions bind only the parties.

Motions to reopen and reconsider

Motions to reopen

A motion to reopen asks the immigration judge, or the Board if it issued the last decision, to reopen a closed case on new facts supported by evidence that was not previously available. The general rule is one motion within 90 days of the final order. The exceptions:

• In absentia orders. An order entered because you did not appear can be rescinded on a motion filed within 180 days for exceptional circumstances, or at any time if you did not receive proper notice. Filing this motion automatically stays removal.
• Changed country conditions. A motion to apply or reapply for asylum, withholding of removal or Convention Against Torture protection may be filed at any time if it rests on changed conditions in the country of removal, shown by material evidence that could not have been presented earlier. Our asylum team prepares these filings.
• Joint motions. A motion filed jointly with DHS counsel is exempt from the time and number limits.
• Sua sponte authority. The judge and the Board retain a limited, discretionary power to reopen on their own motion in exceptional situations, and the federal courts have very limited power to review a refusal to use it.
• Ineffective assistance of prior counsel. Many courts of appeals allow the 90-day deadline to be equitably tolled where prior counsel's errors caused the loss, if the requirements of Matter of Lozada are met and the client acted with diligence.

Outside the in absentia context, a motion to reopen does not stay removal by itself, so we file a separate stay request whenever removal is a risk.

Motions to reconsider

A motion to reconsider asks the same body to correct errors of law or fact in its own decision. It must be filed within 30 days, generally only once, and must identify specific errors rather than restate the argument or offer new evidence.

Appeals and motions on USCIS denials

Most USCIS petition and waiver denials can be appealed to the Administrative Appeals Office on Form I-290B, generally within 30 days of the decision, or 33 days if it was mailed. The same form is used for a motion to reopen or reconsider with the office that denied the case, and the denial notice states the available options and the exact deadline. Form I-130 family petitions are appealed to the Board rather than the AAO, and a denied adjustment of status application generally cannot be appealed, though it may be renewed before an immigration judge. Where a denial is legally wrong, a suit under the Administrative Procedure Act through our immigration litigation practice may be the better route.

Petitions for review in federal court

If the Board dismisses your appeal, you may file a petition for review in the court of appeals for the circuit in which the immigration judge completed the proceedings, within 30 days of the Board's decision. The deadline is strict. For our offices, that means the Fourth Circuit for Virginia and Maryland, the Second Circuit for New York, the Eighth Circuit for Minnesota and the District of Columbia Circuit for the District. Filing does not stay removal, so we file a motion for a stay with the court at the same time, addressing likelihood of success, irreparable harm, the balance of hardships and the public interest. The court reviews the administrative record and only the issues raised before the Board. Where a client is detained, our habeas corpus and detention and bond practices work alongside the appeal.

DHS motions to dismiss and administrative closure

In 2025, DHS attorneys moved to dismiss large numbers of pending court cases to pursue expedited removal or detention, and EOIR policy shifted against administrative closure even though a 2024 regulation confirmed the judges' authority to grant it. A dismissal that leaves you without a forum for relief should be opposed, and the judge's ruling is appealable to the Board. We confirm current rules and practice at consultation.

What to do immediately after a bad decision

1. Write down the exact date of the decision and how it was delivered.
2. Do not leave the United States. Departure is treated as withdrawing a pending appeal and as executing the order.
3. Gather the decision, the Notice to Appear, your exhibits and any prior attorney's file, and request missing records through our FOIA practice.
4. Report any address change to the court or the Board and keep every ICE appointment.

Evidence and the record on appeal

Appeals are won or lost on the record built before the immigration judge. We make sure exhibits are filed on time, objections are placed on the record, offers of proof are made when evidence is excluded, and country-conditions and expert evidence are complete before the individual hearing. Our removal defense team builds the record with the appeal in mind from the first hearing.

Why Capitol Law Partners

Cagatay Ersoy, founder and managing partner of Capitol Law Partners, is a graduate of Columbia Law School whose practice spans family-based and employment-based immigration alongside business law. Our attorneys and staff work in English, Turkish, Spanish, Portuguese and French. From our offices in Washington, DC, Herndon, Virginia, New York and Minneapolis, we handle Board appeals and motions nationwide and petitions for review in the Fourth, Second, Eighth and D.C. Circuits. Where the problem is agency delay rather than a denial, our mandamus practice can compel a decision.

Learn more about appeals and motions

• Removal proceedings: what to expect in immigration court
• What is crimmigration? Criminal cases and immigration status
• Immigration law in the U.S.: what you need to know

Talk to a BIA appeals attorney

If an immigration judge or USCIS has ruled against you, contact us with the decision in hand so we can protect the deadline. Schedule a consultation or call +1 (202) 440-2272.