After an Immigration Judge Rules Against You
Motion to Reopen vs. Appeal to the BIA
Two different ways to challenge an unfavorable immigration court decision — one asks the same judge to look at new evidence, the other asks a higher board to review the judge’s reasoning. They run on different clocks, different forms, and different odds.
1. Motion to Reopen
Asks the immigration judge (or the BIA, if the case is already there) to reopen the case because new, material evidence has come to light that wasn’t available before. Best when you have genuinely new facts or evidence — a changed country condition, a new marriage, evidence that didn’t exist at the original hearing.
2. Appeal to the BIA
Asks the Board of Immigration Appeals to review the same record and decide the immigration judge made a legal or factual error. Best when you believe the judge misapplied the law, misread the facts, or the hearing itself was procedurally unfair.
| Criterion | Motion to Reopen | Appeal to the BIA |
|---|---|---|
| What it argues | New, material facts exist that weren’t available or discoverable at the original hearing. | The immigration judge made a legal or factual error, or the proceeding was otherwise unfair. |
| Filing deadline | 90 calendar days from the final order, with narrow exceptions (e.g., changed country conditions for asylum/withholding/CAT claims, joint motions, DHS motions). | 30 calendar days from the oral or mailed written decision, whichever comes first. No discretionary extensions. |
| Where it’s filed | With the immigration court that issued the order — or with the BIA if the case is already on appeal there. | Notice of Appeal filed directly with the Board of Immigration Appeals. |
| Form | Written motion — no dedicated EOIR form number. | Form EOIR-26, EOIR-27 Notice of Appeal from a Decision of an Immigration Judge, Attorney Authorization Form. |
| Filing fee (2026) | $1,065 if filed with the immigration judge; $1,030 if filed with the BIA. Some statutory categories are fee-exempt. Fee waiver: Form EOIR-26A. | $1,030, payable through the EOIR online payment portal. Fee waiver: Form EOIR-26A. |
| How many allowed | Only one motion to reopen per case, with exceptions for joint motions, DHS motions, and a sua sponte re-opening. | One appeal per decision — & it can raise multiple grounds at once. |
| What you must show | Evidence that is material, wasn’t available before, and — combined with the existing record — makes out a case for relief. | A written brief identifying specific legal or factual errors in the judge’s decision, based on the existing hearing record. |
| Briefing | Supporting brief & evidence filed with the motion itself; no separate briefing schedule. | Simultaneous briefing schedule for both sides, plus optional oral argument in limited cases. |
| Effect on removal | Filing does not automatically stop removal — a separate, explicit stay request is required. | A timely Notice of Appeal automatically stays removal while the appeal is pending. |
| If it’s granted | The case reopens and returns to the immigration judge for a new hearing on the new evidence. | The BIA may reverse the decision outright, remand the case to the immigration judge, or affirm the original ruling. |
The BIA’s appeal rules have been in flux: a rule shortening the appeal deadline to 10 days and defaulting most appeals to dismissal was blocked by a federal court and has not taken effect as of this writing, so the 30-day deadline above still applies. Given the active litigation, confirm the current deadline before relying on it.
General information only — not legal advice. Deadlines, fees, and procedures are set by the Executive Office for Immigration Review and can change; confirm current rules with a licensed immigration attorney before filing.
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