[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.3]

[Page 18-20]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
                 Subpart A--Board of Immigration Appeals
 
Sec. 3.3  Notice of appeal.

    (a) Filing--(1) Appeal from decision of an Immigration Judge. A 
party affected by a decision who is entitled under this chapter to 
appeal to the Board from a decision of an Immigration Judge shall be 
given notice of his or her right to appeal. An appeal from a decision of 
an Immigration Judge shall be taken by filing a Notice of Appeal to the 
Board of Immigration Appeals of Decision of Immigration Judge (Form 
EOIR-26) directly with the Board, within the time specified in the 
governing sections of this chapter. The appealing parties are only those 
parties who are covered by the decision of an Immigration Judge and who 
are specifically named on the Notice of Appeal. The appeal must be 
accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 3.8. If the respondent/
applicant is represented, a Notice of Entry of Appearance as Attorney or 
Representative Before the Board (Form EOIR-27) must be filed with the 
Notice of Appeal. The appeal must reflect proof of service of a copy of 
the appeal and all attachments on the opposing party. The appeal and all 
attachments must be in English or accompanied by a certified English 
translation. An appeal is not properly filed unless it is received at 
the Board, along with all required documents, fees or fee waiver 
requests, and proof of service, within the time specified in the 
governing sections of this chapter. A notice of appeal may not be filed 
by any party who has waived appeal pursuant to Sec. 3.39.
    (2) Appeal from decision of a Service officer. A party affected by a 
decision who is entitled under this chapter to appeal to the Board from 
a decision of a Service officer shall be given notice of his or her 
right to appeal. An appeal from a decision of a Service officer

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shall be taken by filing a Notice of Appeal to the Board of Immigration 
Appeals of Decision of District Director (Form EOIR-29) directly with 
the office of the Service having administrative control over the record 
of proceeding within the time specified in the governing sections of 
this chapter. The appeal must be accompanied by a check, money order, or 
fee waiver request in satisfaction of the fee requirements of Sec. 3.8 
and, if the appellant is represented, a Notice of Entry of Appearance as 
Attorney or Representative Before the Board (Form EOIR-27). The appeal 
and all attachments must be in English or accompanied by a certified 
English translation. An appeal is not properly filed until its receipt 
at the appropriate office of the Service, together with all required 
documents and fees, and the fee provisions of Sec. 3.8 are satisfied.
    (b) Statement of the basis of appeal. The party taking the appeal 
must identify the reasons for the appeal in the Notice of Appeal (Form 
EOIR-26 or Form EOIR-29) or in any attachments thereto, in order to 
avoid summary dismissal pursuant to Sec. 3.1(d)(1-a)(i). The statement 
must specifically identify the findings of fact, the conclusions of law, 
or both, that are being challenged. If a question of law is presented, 
supporting authority must be cited. If the dispute is over the findings 
of fact, the specific facts contested must be identified. Where the 
appeal concerns discretionary relief, the appellant must state whether 
the alleged error relates to statutory grounds of eligibility or to the 
exercise of discretion and must identify the specific factual and legal 
finding or findings that are being challenged. The appellant must also 
indicate in the Notice of Appeal (Form EOIR-26 or Form EOIR-29) whether 
he or she desires oral argument before the Board and whether he or she 
will be filing a separate written brief or statement in support of the 
appeal.
    (c) Briefs--(1) Appeal from decision of an Immigration Judge. Briefs 
in support of or in opposition to an appeal from a decision of an 
Immigration Judge shall be filed directly with the Board. In those cases 
that are transcribed, the briefing schedule shall be set by the Board 
after the transcript is available. An appellant shall be provided 30 
days in which to file a brief, unless a shorter period is specified by 
the Board. The appellee shall have the same period of time in which to 
file a reply brief that was initially granted to the appellant to file 
his or her brief. The time to file a reply brief commences from the date 
upon which the appellant's brief was due, as originally set or extended 
by the Board. The Board, upon written motion, may extend the period for 
filing a brief or a reply brief for up to 90 days for good cause shown. 
In its discretion, the Board may consider a brief that has been filed 
out of time. All briefs, filings, and motions filed in conjunction with 
an appeal shall include proof of service on the opposing party.
    (2) Appeal from decision of a Service officer. Briefs in support of 
or in opposition to an appeal from a decision of a Service officer shall 
be filed directly with the office of the Service having administrative 
control over the file in accordance with a briefing schedule set by that 
office. The alien shall be provided 30 days in which to file a brief, 
unless a shorter period is specified by the Service officer from whose 
decision the appeal is taken. The Service shall have the same period of 
time in which to file a reply brief that was initially granted to the 
alien to file his or her brief. The time to file a reply brief commences 
from the date upon which the alien's brief was due, as originally set or 
extended. Upon written request of the alien, the Service officer from 
whose decision the appeal is taken or the Board may extend the period 
for filing a brief for good cause shown. The Board may authorize the 
filing of briefs directly with the Board. In its discretion, the Board 
may consider a brief that has been filed out of time. All briefs and 
other documents filed in conjunction with an appeal, unless filed by an 
alien directly with a Service office, shall include proof of service on 
the opposing party.
    (d) Effect of certification. The certification of a case, as 
provided in this part, shall not relieve the party affected from 
compliance with the provisions of this section in the event that he or 
she is entitled and desires to appeal from an initial decision, nor 
shall it serve to extend the time specified in

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the applicable parts of this chapter for the taking of an appeal.
    (e) Effect of departure from the United States. Departure from the 
United States of a person who is the subject of deportation proceedings, 
prior to the taking of an appeal from a decision in his or her case, 
shall constitute a waiver of his or her right to appeal.

[61 FR 18906, Apr. 29, 1996]