An immigration judge's order of removal is not final while an appeal is possible. It becomes final when the Board of Immigration Appeals affirms it or when the time to appeal runs out. Everything in this article turns on that moment, and on the three clocks that start at different points around it: 30 days to appeal, 90 days to reopen, 30 days to petition a federal court.
The appeal
The Notice of Appeal is Form EOIR-26. Under 8 CFR 1003.38 the filing date is the date the Board receives it, not the postmark, and it must arrive within 30 calendar days of the judge's decision with the fee or a fee waiver request on Form EOIR-26A. Miss either and the decision is final "to the same extent as though no appeal had been taken." Under 8 CFR 1003.6(a), the order cannot be executed during those 30 days or while the appeal is pending. That is the automatic stay, and it attaches only to a merits appeal filed in time.
The 30 days nearly became 10. On February 6, 2026 EOIR published an interim final rule, effective March 9, that made review on the merits discretionary: every appeal would be summarily dismissed by a single Board member unless a majority of the permanent members voted en banc to hear it, the deadline would fall to 10 days except in certain asylum cases, and any issue not listed in the notice of appeal would be waived. Fourteen former Board members filed a comment against it. Legal service providers sued in the District of Columbia, and on March 8, 2026, the day before the rule took effect, Judge Randolph Moss in Amica Center for Immigrant Rights v. EOIR vacated those three provisions for want of notice and comment. On March 13 EOIR's director issued Policy Memorandum 26-02 confirming the deadline is 30 days and that "no IJ should be informing either party that the appellate deadline for the Board is only 10 days." The eCFR text still reads 10 days; the court's order controls.
The rest of the rule is in force for decisions issued on or after March 9, 2026, and the ILRC's June advisory sets it out. Both sides brief simultaneously, 20 days after the Board sets the schedule. There is no reply brief unless the Board invites one. Extensions are granted only for "exceptional circumstances" as defined in INA 240(e)(1), which excludes workload, travel plans and anything else within a party's control. A single member must decide within 90 days of the record closing, a three-member panel within 180, and the Chief Appellate Immigration Judge can no longer hold cases pending a circuit or Supreme Court ruling. Immigration judges no longer review transcripts of their oral decisions before the record goes up. The case is stayed while the government runs the notice and comment it skipped.
The Board itself was cut from 28 members to 15 by a rule effective April 14, 2025. The standard of review is unchanged: under 8 CFR 1003.1(d)(3) the judge's findings of fact, including credibility, are disturbed only if clearly erroneous; questions of law, discretion and judgment are reviewed de novo. An appeal that argues the judge should have believed the applicant is, in most cases, a losing appeal. One that argues the judge applied the wrong legal test is not.
The fee
Before H.R. 1 the appeal fee was $110. The statute added a second fee, $920 for fiscal 2026 after inflation adjustment, and EOIR's fee rule of June 11, 2026 codified the sum: $1,030 for an EOIR-26, $1,030 for an EOIR-29 appeal from a USCIS decision, $1,030 for a motion to reopen or reconsider before the Board, $1,065 for the same motion before an immigration judge. A bond appeal has no fee. Since February 23, 2026 EOIR accepts no checks or money orders; everything is paid through the EOIR Payment Portal. The $920 component cannot be waived. The rule keeps a short list of motions that carry no fee: a motion filed while the case is still pending, a motion asking only for a stay, a joint motion agreed with DHS, and a motion to reopen an in absentia order for lack of notice or custody. A motion to reopen an in absentia order on the ground of exceptional circumstances pays.
Motions to reopen and reconsider
A motion to reconsider says the decision was wrong on the law or the facts as they stood; it is due within 30 days. A motion to reopen presents new facts, supported by affidavits and evidence that was "not available and could not have been discovered or presented at the former hearing," under 8 CFR 1003.23(b)(3); it is due within 90 days of the final order, and each party gets one, whether filed with the judge or the Board under 8 CFR 1003.2(c)(2). Leaving the country after filing withdraws the motion. Filing one does not stay removal, with one exception below, and the Board may deny a motion even where a prima facie case for relief is shown.
The exceptions to the 90 days and the one-motion limit are the ones that matter in practice. An in absentia order can be rescinded on a motion filed within 180 days for exceptional circumstances, or at any time for lack of notice or for federal or state custody; that motion, and only that motion, automatically stays removal while the judge decides it, and the ten-year bar on relief under INA 240(b)(7) makes it worth filing. A motion to reopen to apply for asylum or withholding based on changed country conditions is exempt from both limits if the evidence is material and was previously unavailable. A joint motion with DHS is exempt from both. And the Board or the judge may reopen sua sponte "at any time" under 8 CFR 1003.2(a).
Sua sponte is the last resort, and the federal courts treat it that way. In Kucana v. Holder (2010) the Supreme Court held that the statutory bar on reviewing discretionary decisions reaches only discretion conferred by statute, not by regulation, so a denial of an ordinary motion to reopen can be reviewed. But because the sua sponte power exists only in the regulation, the courts of appeals generally will not review a refusal to exercise it, except to correct a legal or constitutional error in the Board's reasoning. Equitable tolling of the 90 days, typically for a prior lawyer's ineffective assistance, is a different route, and Mata v. Lynch (2015) holds that a court of appeals has jurisdiction to review the Board's refusal to toll.
The petition for review
Once the Board dismisses the appeal, the next step is a petition for review in the court of appeals for the circuit where the immigration judge sat, under INA 242(b)(2). The deadline is 30 days from the final order. It is not extended by a motion to reopen or reconsider: Stone v. INS (1995) requires two petitions, one from the order and one from the motion, consolidated in the court. The docketing fee is $600.
Two recent decisions changed the rules of the road. Santos-Zacaria v. Garland (2023) held that the exhaustion requirement is not jurisdictional and that a petitioner need not file a discretionary motion to reconsider with the Board before going to court. Riley v. Bondi, decided June 26, 2025, held two things. The 30-day deadline is a claim-processing rule, not a jurisdictional bar, so it can in principle be waived or forfeited by the government. And for a person in withholding-only proceedings after an administrative or reinstated removal order, the Board's later denial of protection is not a "final order of removal"; the 30 days ran from the underlying DHS order, which in Riley's case was issued in January 2021, years before the Board ruled. A person in that posture who waits for the Board is late before they begin.
Filing a petition does not stop removal. INA 242(b)(3)(B) says so, and Nken v. Holder (2009) sets the standard for asking the court to stop it: a strong showing of likely success, irreparable injury, the balance of harms, and the public interest. The motion for a stay is filed with the petition, not after.
Three stays
There are three sources of a stay of removal, and they are not interchangeable.
The Board. Automatic during the appeal period and the appeal, under 1003.6(a). Otherwise discretionary, and the Practice Manual says the Board considers a discretionary stay only while an appeal from a denied motion to reopen, or a motion to reopen or reconsider a Board decision, is pending before it. A changed-country-conditions motion carries no automatic stay. The request is a written "Motion to Stay Removal" with the case history, the order, and "a specific statement of the time exigencies involved"; vague urgency is not persuasive.
ICE. Form I-246, filed in person at the field office, fee $155 by money order or cashier's check, granted for a year, six months or three months at the officer's discretion. DHS proposed on May 7, 2026 to raise the fee to $755; comments closed July 6 and no final rule had appeared by September.
The court of appeals. Under Nken, on motion, with the petition.
What to do
- Calendar 30 days from the judge's decision, received not mailed. Pay the $1,030 through the portal or file the EOIR-26A with the notice; a notice without either is a nullity.
- Write the appeal to the standard of review. Identify the legal error. Credibility findings survive unless clearly erroneous.
- File the brief on the 20th day. There is no reply and no extension for ordinary reasons.
- After a Board dismissal, file the petition for review within 30 days and the stay motion with it. If the case was withholding-only, the clock ran from the original removal order; take advice the same week.
- Use the motion to reopen deliberately. One motion, 90 days, new evidence that could not have been produced before. In absentia, changed country conditions and joint motions are the exceptions; sua sponte is not a plan.
- Get a stay from the body that has the case. The Board while the appeal is there, the circuit court once the petition is filed, and ICE on the I-246 when neither applies.
The 2026 rule tried to turn the Board into a body that reads only what it chooses to. A district court stopped that part. What remains is a 15-member Board that charges $1,030 and gives each side 20 days and one brief.