4.5 - Appeal Deadlines

(a) Due Date

A Notice of Appeal (Form EOIR-26) must be filed no later than 30 calendar days after the immigration judge renders an oral decision or mails or provides electronic notification of a written decision.  8 C.F.R. § 1003.38(b).

The 30 day period is computed as described in Chapter 3.1(b)(2) (Computation of time).  The Board does not follow the “mailbox rule” but calculates deadlines according to the time of receipt at the Clerk’s Office.  See Chapter 3.1 (Delivery and Receipt).  The 30-day deadline and method of computation applies to all parties, including persons detained by DHS or other federal or state authorities.

(b) Extensions — The regulations set strict deadlines for the filing of an appeal, and the Board’s authority to extend or toll the time in which to file a Notice of Appeal (Form EOIR-26) is limited, as described below. See 8 C.F.R § 1003.38(b).

       (1) ECAS system outages (electronic filing) — System outages may occur that make electronic filing through ECAS unavailable and may impact filing deadlines for a case where electronic filing is mandatory. If EOIR determines Board of Immigration Appeals Practice Manual Chapter 4 Appeals of Immigration Judge Decisions www.justice.gov/eoir/reference-materials/bia 65 This chapter last updated: May 8, 2023 that an unplanned outage has occurred, filing deadlines that occur on the last day for filing in a specific case will be extended until the first day of system availability that is not a Saturday, Sunday, or legal holiday. See 8 C.F.R. § 1003.3(g)(2). Note that planned system outages will not impact filing deadlines since these can be proactively addressed by the parties. EOIR will maintain an ECAS Outage Log that will note planned and unplanned ECAS system outages.

       (2) Fee waiver denied — If a Fee Waiver Request (Form EOIR-26A) does not establish the inability to pay the required fee, the requesting party will receive a rejection notice and the appeal will be returned. However, the filer will be given 15 days to re-file the rejected appeal with the fee or new fee waiver request, and the applicable appeal filing deadline will be tolled during the 15-day cure period. See 8 C.F.R. § 1003.8(a)(3). See Chapter 3.4(c) (When Waived).

       (3) Equitable tolling — The Board has determined that the principles of equitable tolling apply as an exception to the 30-day regulatory deadline for filing an appeal as provided by 8 C.F.R. § 1003.38. See Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023). The party seeking equitable tolling must show both diligence in the filing of the Notice of Appeal and that an extraordinary circumstance prevented the timely filing. Id.

If a party wishes the Board to consider this equitable tolling exception to the filing deadline, the Notice of Appeal (Form EOIR-26) must be accompanied by a written motion entitled “MOTION TO ACCEPT LATE APPEAL” and comply generally with the rules and procedures for filings. See Chapter 3 (Filing with the Board), Chapter 4(b) (Filing). A motion to accept an untimely appeal must clearly establish both diligence in the filing of the notice of appeal and that an extraordinary circumstance prevented the filing. The motion should be supported by affidavits, declarations, and other evidence. The Board will advise the parties of its decision on the motion.

(c) Detained Persons — Detained persons are subject to the same 30-day appeal deadline. All appeals, regardless of origin, must be received by the Board in the time allotted. An appeal is not timely filed simply because it is deposited in the detention facility’s internal mail system or is given to facility staff to mail prior to the deadline