When Government Lawyers Appeal Immigration Court Decisions

If a foreign national wins their removal case in immigration court, the judge will allow them to stay in the U.S. However, sometimes the government will appeal the decision. The government attorney may notify the judge that they will be reserving an appeal. This is not the same as actually filing an appeal. It simply triggers a time period in which the government can ask the Board of Immigration Appeals to review the decision.

The government attorney may never actually file the appeal. They may want to reserve an appeal so that they can discuss the matter further with a supervisor and determine the strength of their possible grounds for an appeal. Sometimes they will decide after further consideration that it is not worth the extra effort of filing an appeal. Policies for following through with an appeal vary in different parts of the U.S. If you have an attorney, they may be able to give you a clearer sense of what to expect. If the government attorney decides to move forward with an appeal, they must file Form EOIR-26 within 30 calendar days. The judge’s decision will not become final until the 30-day window expires.

Proceeding Through the Appeal Periods

You will not be able to receive any of the benefits associated with the legal status that the immigration judge granted you while any appeal filed by the government remains pending. You will not need to present your case to the Board of Immigration Appeals. It will determine whether to affirm or reverse the decision of the immigration judge after reviewing the paper record.

You will receive a copy of the appeal filed with the BIA if the government attorney moves forward. Otherwise, if 33 or so days pass without receiving any notice of appeal from the BIA, this means that the government attorney did not file any appeal. (You should allow a few extra days beyond the 30-day period to take mailing time into account.) This means that the judge’s decision has become final, and the government will not be able to take any further action in the case. You have the legal status that the immigration judge granted you, as well as the benefits that come with it.

If you are unsure about whether the government attorney filed an appeal, you can ask the attorney’s office or call the case status hotline for the court. You will know that an appeal was filed if the hotline says that a Record of Proceedings was sent to the BIA.

Last reviewed October 2023