What happens next: decision by the Board
When will you get a decision back from the Board?
It can vary---anywhere from 2-3 months (which is usually the case) to 6 months to a year or more! The Board is faster with detained cases than nondetained cases, and decisions on cancellation of removal tend to come out more quickly than other cases. Asylum/withholding/ CAT cases with controversial issues can sometimes take a lot longer, especially if the Board isn’t sure how it wants to deal with the case, or if the Board is considering publishing the case.
After a case is ready for adjudication, ideally single-member adjudications will be completed within 90 days and three-member adjudications will be completed within 180 days. See, FACT SHEET BOARD OF IMMIGRATION APPEALS: FINAL RULE The Purpose of the Rule: Providing Quality Service Through More Expeditious Review.
Scope of Representation:
As for the scope of your representation, we expect you to represent the client before the Board of Immigration Appeals for this specific appeal. If the case is remanded to the immigration court, or if the client loses and wishes to appeal to the circuit court, you are welcome to continue with the case, but are under no obligation/expectation to do so.
Upon issuance of a decision, the BIA is supposed to send a copy of it to the attorney of record. However, some project participants have informed CLINIC that the BIA has failed to do so. Instead, some attorneys have learned that a decision was issued only after receiving a phone call from a client indicating that the Department of Homeland Security (DHS) was about to remove him or her from the United States. For this reason, we strongly urge you to periodically use the toll-free EOIR phone number to check the status of your case. The number is 1-800-898-7180. After entering the client’s alien registration number and verifying his/her name, you can press #4 for appeal processing information.
Remand to the IJ: If your case is remanded to Immigration Court, and you cannot continue with the case due to geographic or other constraints, please let me know. In this event, we will try to find pro bono counsel to represent the detainee before the Immigration Judge.
Appeal to the Circuit Courts: For more information on appealing a BIA decision, see a practice advisory from the Legal Action Center about how to file a petition for review. The filing of a Petition for Review before a circuit court does not automatically stay the removal of your client. If your client is in DHS custody and the BIA decision includes a removal order against your client, an emergency stay request must be filed to prevent DHS from executing the order of removal.
Motions to Reopen and Motions to Reconsider (Please see the BIA Procedures Manual for more detailed information).
- Motions to Reopen and Motions to Reconsider: Please note that a new E-27 and a fee waiver request (Form EOIR-26A available here) must accompany a motion to reopen and/or reconsider before the BIA.
- The filing of a motion to reopen or reconsider does not automatically stay the removal of your client. If your client is in DHS custody and the BIA decision includes a removal order against your client, an emergency stay request must be filed with the BIA to prevent the DHS from executing the order of removal. There is no separate filing fee for an emergency stay request. See Chapter 6 of the BIA Practice Manual for more information on stay requests.