Photo by Sebastien LE DEROUT on Unsplash

UPDATE: The BIA joined us back in the 21st Century as part of the newly implemented ECAS (EOIR Courts & Appeals System) Program, which allows for e-filing of all immigration cases, including appeals to the BIA. I am duly pleased. Stay tuned for reports on how well it works, but for now, we can all be grateful that we no longer have to hold our breath as we await confirmation of the BIA receiving our appeal notices and briefs by mail.

(post from February 2021)

Last year I wrote an excited post about a new rule at the BIA (the Board of Immigration Appeals): they decided to allow filing of appeal briefs by email. I saw it as a silver lining to the COVID-19 pandemic.

With all the court closures and stay-at-home orders, the BIA was forced to update its policy that requires paper mailing of all the documents that noncitizens and their lawyers need to file.

It was a long-overdue change—after all, myriad state and federal courts across the country updated their rules years ago to be in sync with the technological reality of the 21st century. Those that had not before the coronavirus crisis quickly did so.

My excitement, alas, was unwarranted: in September 2020, the BIA revoked the new rule and returned to the requirement that all filings must be made by mail. You can read the revocation here, which I’ve copied below:

EMAIL FILING EXPIRATION: EFFECTIVE MIDNIGHT SEPTEMBER 18, 2020, THE BOARD OF IMMIGRATION APPEALS NO LONGER ACCEPTS FILINGS BY EMAIL. EMAILS DIRECTED TO BIA EMAIL ADDRESSES AFTER THAT DATE WILL BE DELETED WITHOUT REVIEW.

Requiring filing by mail is fraught with inconvenience for noncitizens and the immigration lawyers who help them. The mailing rule also causes prejudice in cases where an overnight courier (or the USPS, if anyone is crazy enough to rely on them these days) fails to deliver an appeal brief or notice of appeal by a regulatory deadline (I’ve had to help lawyers write motions to accept untimely briefs in such cases).

I dare say the mailing rule is ridiculous and unbecoming of a United States government agency. I would not be alone in my conviction. To quote the 9th Circuit in a decision issued a decade ago:

…all the Board need do is what courts and private companies routinely do: allow people to send their notices of appeal over the internet. It is a cruel irony that the Board distributes the manual that lawyers are supposed to use as guidance on the internet, yet pretends the internet does not exist when it comes to receiving papers.

Irigoyen-Briones v. Holder, 644 F.3d 943, 951 (9th Cir. May 31, 2011)

The Irigoyen-Briones decision refers to notices of appeal, but the point is the same for appeal briefs. There is no reason for the BIA to insist on using a technology from a prior century when the rest of the world has moved on. The BIA’s about-face after finally allowing email filing is unjustifiable. Let’s hope they return to the 21st century soon.

The BIA returns to the 20th UPDATED 21st century (again)

(post from February 2021)

Last year I wrote an excited post about a new rule at the BIA (the Board of Immigration Appeals): they decided to allow filing of appeal briefs by email. I saw it as a silver lining to the COVID-19 pandemic.

With all the court closures and stay-at-home orders, the BIA was forced to update its policy that requires paper mailing of all the documents that noncitizens and their lawyers need to file.

It was a long-overdue change—after all, myriad state and federal courts across the country updated their rules years ago to be in sync with the technological reality of the 21st century. Those that had not before the coronavirus crisis quickly did so.

My excitement, alas, was unwarranted: in September 2020, the BIA revoked the new rule and returned to the requirement that all filings must be made by mail. You can read the revocation here, which I’ve copied below:

EMAIL FILING EXPIRATION: EFFECTIVE MIDNIGHT SEPTEMBER 18, 2020, THE BOARD OF IMMIGRATION APPEALS NO LONGER ACCEPTS FILINGS BY EMAIL. EMAILS DIRECTED TO BIA EMAIL ADDRESSES AFTER THAT DATE WILL BE DELETED WITHOUT REVIEW.

I dare say the mailing rule is ridiculous and unbecoming of a United States government agency. I would not be alone in my conviction. To quote the 9th Circuit in a decision issued a decade ago:

If you have a motion or appeal brief you need to file in the BIA, get in touch with me here.