How To Appeal A Denied Asylum Or Immigration Case: Your Options And Strategy
By Alena Shautsova, New York Immigration Lawyer
Receiving a denial on your asylum or immigration case can be devastating. But it’s important to remember: a denial is not the end. You may have powerful options to appeal or reopen your case and still obtain immigration relief.
As a seasoned immigration appeal lawyer, I help clients nationwide challenge unjust or erroneous decisions before the Board of Immigration Appeals (BIA) and federal courts. In this blog, I’ll guide you through the appeals process, share examples from real BIA asylum cases, and offer practical tips on how to succeed.
What is the Board of Immigration Appeals (BIA)?
The Board of Immigration Appeals is the highest administrative body for interpreting and applying immigration laws. It reviews decisions made by:
- Immigration Judges (IJ)
- Department of Homeland Security (DHS) officers (in limited circumstances)
The BIA is part of the Executive Office for Immigration Review (EOIR), under the U.S. Department of Justice. BIA appeals are paper-based—there’s no hearing, so your brief and evidence must be airtight.
Common Cases You Can Appeal
You can appeal to the BIA if you received a denial in:
- Asylum
- Withholding of Removal
- Protection under the Convention Against Torture (CAT)
- Adjustment of Status before an IJ
- Cancellation of Removal
- Bond denial
If your case was denied by an Immigration Judge, you typically have 30 calendar days from the decision date to file a Notice of Appeal (EOIR-26).
How to File an Appeal with the BIA
Step 1: File Form EOIR-26 (Notice of Appeal)
- Must be submitted within 30 days
- Send to: BIA, Falls Church, VA
- Include the filing fee or a fee waiver request
Step 2: Write a Legal Brief
After the record is transferred, the BIA will notify you to submit a written brief. This document is critical—it must explain:
- Why the IJ made legal or factual errors
- Supporting evidence and case law
- Relevant human rights documentation
Step 3: Wait for the BIA’s Decision
Average processing time: 6–18 months
Possible outcomes:
- Dismissal (upholding the denial)
- Remand (sending back to IJ)
- Reversal (granting relief)
Real Examples: Successful BIA Asylum Appeals
Matter of S-P-, 21 I&N Dec. 486 (BIA 1996)
This case discusses imputed political opinion as a valid basis for asylum, particularly when a persecutor believes the applicant holds a political view, regardless of whether that belief is correct.
Citation: Matter of S-P-, 21 I&N Dec. 486 (BIA 1996)
Lesson: Proper framing of the protected ground is essential.
Hernandez-Chacon v. Barr, 948 F.3d 94 (2d Cir. 2020)
In this Second Circuit decision, the court discusses the persecution of individuals resisting gang recruitment and examines how such claims intersect with protected grounds.
Citation: Hernandez-Chacon v. Barr, 948 F.3d 94 (2d Cir. 2020)
⚖️ What if You Lose at the BIA?
If your BIA appeal is denied, you can:
- File a Petition for Review with the U.S. Circuit Court
-
- Deadline: 30 days from BIA decision
- This is a federal court appeal
- You’ll need a licensed federal litigation attorney
- File a Motion to Reopen or Reconsider
-
- Motion to Reopen: Submit new evidence (e.g., worsening country conditions)
- Motion to Reconsider: Argue that BIA misapplied the law
- Usually must be filed within 30 or 90 days, but exceptions exist for changed country conditions
Practical Tips for a Strong Appeal
- Act Fast: The 30-day deadline is strict. Don’t delay.
- Hire an Immigration Appeal Lawyer: BIA rules are complex. You need a legal expert familiar with appellate writing.
- Focus on Legal Error: The BIA is not retrying your case. Highlight legal or procedural mistakes the IJ made.
- Provide Objective Evidence: Country condition reports from the State Department, UN, Human Rights Watch, and media coverage strengthen your case.
- Use Expert Affidavits: Especially in gender, LGBTQ+, or political opinion cases, a psychological or cultural expert can be game-changing.
Viral FAQs: Asylum and BIA Appeals
- Can I stay in the U.S. while my BIA appeal is pending?
Yes. Your removal order is automatically stayed while the appeal is pending, and you remain in authorized stay. - Can I work while my asylum appeal is pending?
Yes, if you previously had an EAD (Employment Authorization Document), you can renew it during the appeal. - Can I submit new evidence on appeal?
No, the BIA only reviews the existing record. But you can file a Motion to Reopen with new evidence. - Do I have to attend a hearing for my appeal?
No. BIA appeals are decided on paper, so the brief and supporting documents are everything. - What if my lawyer made mistakes in my original case?
You may be able to file a Motion to Reopen based on ineffective assistance of counsel under Matter of Lozada. You must file: -
- A bar complaint or explanation of why one wasn’t filed
- An affidavit
- Evidence of harm caused by the attorney
Downloadable Resource
Want a quick reference guide to the BIA appeal process?
Click here to download your free PDF guide
Conclusion: Don’t Give Up – Appeal With Strategy
A denied asylum or immigration application doesn’t have to be the end. With the right legal strategy, understanding of procedural rules, and strong advocacy, many cases are successfully overturned or reopened.
At the Law Office of Alena Shautsova, we’ve helped dozens of clients win their BIA appeals, even in difficult cases. If you’re searching for the best immigration appeal lawyer, let us fight for your second chance.
Schedule your confidential consultation now
www.shautsova.com
We are your trusted team for BIA appeal help and asylum denial options.
Legal Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Always consult an immigration attorney for your specific situation.