When the government appeals
The judge ruled in your favor. Now DHS appeals.
Winning before an immigration judge is not always the end of the process. The government (DHS or ICE) has the same right as you to appeal a decision to the BIA. If that happens, you need to defend yourself — or you could lose what you won.
What a government appeal means
What happens when DHS appeals?
When an immigration judge grants asylum, cancellation of removal, adjustment of status, or another form of relief, the Department of Homeland Security (DHS) — through its ICE attorneys — can file an appeal with the BIA within 30 days of the decision.
A government appeal does not automatically revoke what the judge granted you. But it does open a process before the BIA in which the government will argue that the judge made an error in granting you relief.
If the BIA accepts the government's arguments and overturns the judge's decision, you could lose the relief you were granted and face a removal order again. That is why it is essential to have legal representation during this process.
What the government can appeal
Grant of asylum
If the judge granted you asylum because they found you have a well-founded fear of persecution, DHS can appeal arguing that the judge incorrectly applied the legal standard or that the evidence was insufficient.
Cancellation of removal
If the judge cancelled your removal order — for example, because you have 10 years of continuous residence, good moral character, and a citizen or resident family member who would suffer exceptional hardship — DHS can appeal that decision.
Protection under the Convention Against Torture
If the judge granted you protection under the CAT (Convention Against Torture), the government can appeal arguing that the legal standards were not met.
Other forms of relief
The government can appeal any judge decision that granted you immigration relief, including adjustment of status, withholding of removal, and other forms of protection.
Your rights when DHS appeals
When the government files an appeal with the BIA, you have the right to file a response brief in which your attorney defends the judge's decision and argues why the BIA should affirm it.
You can also file a cross-appeal if the judge denied you some additional relief you had requested. This allows you to defend what you won while also continuing to seek additional protection.
During the government appeal process, you can generally remain in the U.S. while the BIA decides the case.
Why you need legal representation now
What you won is at risk
A government appeal is not a minor formality. The BIA can overturn what the judge granted you. Without representation, that risk increases significantly.
Deadlines are strict
The deadlines to file the response brief with the BIA are fixed. If your attorney does not respond on time, the BIA may decide the case based only on the government's arguments.
The brief requires expertise
Effectively responding to a government appeal requires deep knowledge of BIA case law and the legal standards applicable to your type of case.
There may be a cross-appeal opportunity
If the judge denied you some additional relief, this is the time to file a cross-appeal. An experienced attorney can identify that opportunity.
How the process works
- 01
DHS files the EOIR-26
The government has 30 days from the judge's decision to file the Notice of Appeal (EOIR-26) with the BIA. If it files, you will receive notification.
- 02
The BIA sets deadlines
The BIA will notify both parties of the deadlines to file legal briefs. The government will file its brief first; you will have the opportunity to respond.
- 03
Your attorney files the response brief
Your attorney will draft a detailed brief defending the judge's decision, responding to the government's arguments, and citing applicable case law.
- 04
The BIA decides
The BIA can affirm the judge's decision (you keep the relief), overturn it (you lose the relief), or remand the case to the judge for reconsideration.
Frequently asked questions
How long does DHS have to appeal?
The government has 30 calendar days from the judge's decision to file an appeal with the BIA — the same deadline you have.
Can I stay in the U.S. while DHS appeals?
Generally yes. While the government's appeal is pending before the BIA, you can remain in the U.S. Consult with your attorney about your specific situation.
What happens to my work permit if DHS appeals?
If you had a work permit (EAD) based on the relief the judge granted you, the situation may vary. Consult an attorney immediately to understand how to protect your EAD during the appeal.
Can I also appeal if the judge denied me something?
Yes. If the judge granted you something but denied other relief you had requested, you can file a cross-appeal with the BIA at the same time you respond to the government's appeal.
What are my chances of winning before the BIA?
It depends on the grounds of the case, the errors the government alleges, and applicable case law. An attorney with BIA appeals experience can assess the strength of your position.
Did DHS appeal your case?
Do not wait to receive the government's brief before acting. The sooner you retain legal representation, the more time your attorney will have to prepare a strong response.
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