BIA Appeal Deadline: 30 Days After 2026 Rule Was Vacated

What the 2026 interim rule changed

On February 6, 2026, the Executive Office for Immigration Review (EOIR) published the interim final rule "Appellate Procedures for the Board of Immigration Appeals" (91 Fed. Reg. 5267), effective March 9, 2026. Its main changes were:

• Appeal deadline: from 30 days to 10 days for most appeals. The 30-day period stayed for asylum applications that were not denied under INA 208(a)(2)(A), (B) or (C), which are the safe third country, one-year deadline and previous denial grounds.
• Summary dismissal: the Board would dismiss an appeal unless a majority of its members voted to review it, with a written order within 15 days after the appeal is filed.
• Briefing: simultaneous briefs within 20 days after the Board sets the schedule, no reply briefs and limited extensions.

Why the 10-day deadline is not in effect

On March 8, 2026, the day before the effective date, the U.S. District Court for the District of Columbia vacated the part of the rule that changed the deadline from 30 days to 10 days (Amica Center for Immigrant Rights v. EOIR, No. 1:26-cv-00696; reported at 822 F. Supp. 3d 119).

On March 13, 2026, EOIR issued Policy Memorandum 26-02. It says that part of the rule "is not in effect", that no immigration judge should tell a party the deadline is 10 days, and that the rule did not change the 30-day deadline for most cases involving an asylum application. A Federal Register notice of October 14, 2026 (91 Fed. Reg. 65390) cites the decision and describes the interim rule as partially vacated on procedural grounds.

The litigation continues. On April 10, 2026 the district court stayed the case while EOIR works toward a final rule, and on May 7, 2026 the government filed a notice of appeal (D.C. Cir. No. 26-5156). The Federal Register showed no newer EOIR rule on Board appeal procedures through October 14, 2026.

Sources that disagree: the regulation still prints 10 days

The electronic Code of Federal Regulations, current to October 23, 2026, still prints 8 CFR 1003.38(b) with the 10-day wording, while EOIR's own materials state 30 days. An attorney should confirm the deadline for a specific appeal, and the appeal should be filed as early as possible.

How to file: Form EOIR-26, the fee and the receipt rule

An appeal from an immigration judge's decision is filed on Form EOIR-26, Notice of Appeal. The Board's Clerk must receive it by the deadline. The Board does not apply a mailbox rule, so a postmark does not count as filing.

The fee for Form EOIR-26 is $1,060 since October 1, 2026: a $110 base fee plus a $950 fee required by the One Big Beautiful Bill Act (Public Law 119-21), adjusted for inflation (91 Fed. Reg. 54211). It was $1,030 under the June 2026 fee rule.

A person who cannot pay may ask for a fee waiver on Form EOIR-26A. The EOIR Policy Manual says that if the waiver request does not show inability to pay, the Board returns the appeal and the filer has 15 days to resubmit it with proof of payment, during which the deadline is tolled. Check the current EOIR fee rule before relying on a waiver, because the One Big Beautiful Bill Act fees follow separate rules.

What is still open

These points can change the answer, so they are part of any check before filing:

• The district court case is stayed, and the government's appeal is pending in the D.C. Circuit (No. 26-5156).
• EOIR may publish a final rule after notice and comment. A final rule would carry its own effective date.
• Which other parts of the interim rule, such as default summary dismissal and simultaneous briefing, apply to a particular appeal.