Iskandarani: The Appeal Clock Starts When the Judge Speaks, Not When the Mail Comes

The immigration judge finishes the hearing and rules against you from the bench. Days later, an envelope comes from the court with a short summary of the decision in it. You still have thirty days to appeal, you figure, and the thirty days surely run from the paper in your hand.

They do not. When a judge decides your case out loud, the 30-day appeal period starts that day, in the courtroom. A summary mailed later does not move it, even if the court does not mail it until eleven days later. The Board of Immigration Appeals said so in Matter of Zaid Iskandarani, 29 I&N Dec. 26, Interim Decision 4089 (BIA Apr. 8, 2025), and it refused to revive an appeal that arrived two days too late.

There is a second trap on top of the first. A 2026 rule tried to cut this deadline to ten days, and some copies of the regulation still print that number. A federal court set the ten-day rule aside before it took effect. The deadline is 30 days, but only if you start counting on the right day.

Two days late, after being told the date

The hearing was on September 14, 2023. At the end of it, the immigration judge gave an oral decision. The judge told the respondent’s attorney the appeal was due October 16, 2023, and the interpreter translated the deadline for him. The judge spoke to him directly, through the interpreter, gave him the date and asked if he had questions.

Thirty days from September 14 fell on Saturday, October 14. The rules move a weekend deadline to the next business day, so the appeal was due on Monday, October 16.

The same day as the hearing, the judge prepared a memorandum summarizing the decision. It also listed the October 16 date. The court mailed it to the parties on September 25, eleven days later.

The Board first received the appeal on October 18. The appeal was filed without a lawyer, and he sent it in again on November 1. On June 12, 2024, the Board dismissed it as untimely, even counting from the earlier October 18 receipt date. A lawyer then filed a timely motion asking the Board to reconsider. The argument was simple: The appeal period should run from the September 25 mailing, which would have made the deadline October 25 and the appeal timely.

The regulation has two triggers

The Board’s answer came from the text. As the Board quoted it in 2025, the regulation on immigration judge decisions, 8 C.F.R. § 1003.37(a), lets a judge decide in one of two ways. An oral decision is “stated by the immigration judge in the presence of the parties,” and a memorandum summarizing it “shall be served on the parties.” A written decision is served by personal service, mail or electronic notification.

The appeal deadline tracks that divide. Under 8 C.F.R. § 1003.38(b), as the Board read it, time starts at the “stating of an immigration judge’s oral decision” or at the mailing or electronic notification of a written one. The November 2022 notice of appeal instructions the Board quoted said the same thing, with a parenthetical that did the real work: 30 days after the oral decision, or 30 days after a written decision was mailed “(if no oral decision was rendered).”

That left only one question: What was this? The judge had spoken the decision in the parties’ presence and “did not prepare a separate written decision.” The memorandum was the summary the regulation itself requires for an oral decision. So the Board held: “An oral decision is not transformed into a written decision merely because the Immigration Judge prepares a memorandum summarizing the oral decision.” It makes no difference if the memorandum is later mailed. Nor did the Board carve out video hearings, where judges cannot hand a summary across the room. It acknowledged that problem and answered it in one sentence: “But the service of the summary order by mail does not alter the appeal time.”

In our view, the logic is hard to fight, because the memorandum’s own purpose defeats the argument. A required summary of a decision already made is not a new decision. A footnote adds that the same is true of a “Law Addendum” or other document mailed afterward and incorporated into the oral decision.

Two things that looked like a later deadline

The respondent had more than the mailing date to point to, and the footnotes show how each one failed. They are the practical heart of this decision, because each describes something a person could easily rely on.

The cover letter. The court’s transmittal letter, which the Board says is also called an “FF” letter, contains several paragraphs for different situations. The respondent pointed to language he read as giving 30 days from the mailing. But that paragraph “was not selected or marked.” It was form language that did not apply. Anyone reading such a letter needs to look at which box is actually checked.

The online case system. His lawyer argued that EOIR’s online system listed an October 25 due date. The Board first noted a gap in proof: He “has not presented a declaration or any other evidence indicating that he was aware of and relied upon this information.” It then added that, regardless, the judge had told him October 16 at the hearing, and it emphasized that this case was on a paper record and not in EOIR’s electronic filing system. If you ever see an online date that differs from what the judge said, file by the earlier one, and save the screen.

Thirty days, not ten

Here is where a person checking the current rule can go wrong. In February 2026, the Executive Office for Immigration Review published an interim rule, 91 Fed. Reg. 5267, that would have cut the appeal period from 30 days to 10 for most cases, kept 30 days for certain asylum denials, treated any issue left out of the notice of appeal as waived, and made summary dismissal the default unless the full Board voted to take the case.

It never took effect on those points. On March 8, 2026, the day before its effective date, the federal district court in Washington, D.C. held in Amica Center for Immigrant Rights v. EOIR, 822 F. Supp. 3d 119, No. 26-696 (D.D.C. Mar. 8, 2026), that the agency had to go through notice and comment before making those changes. The court found the ten-day deadline, the waiver and the default dismissal to be substantive, reasoning that such a timetable fits the kind of rule “so short as to foreclose effective opportunity to make one’s case on the merits.” Its order set those parts aside, declared them invalid and sent the matter back to the agency.

So the deadline in force is 30 calendar days from the oral decision. EOIR’s Director said so to the agency’s own judges in Policy Memorandum 26-02 on March 13, 2026, after unconfirmed reports that some immigration judges were telling parties they had only 10 days. The ten-day provision “is not in effect,” the memorandum states, and “no IJ should be informing either party that the appellate deadline for the Board is only 10 days.” It also noted reports that EOIR’s online case system showed a 10-day deadline, and pointed out that the site’s required disclaimer says its information is not legally binding. That disclaimer is worth remembering alongside the online-date argument in Iskandarani.

Be careful with what you read. A rule can stay in print after a court sets it aside, and an unwary reader could count to ten and panic, or count to thirty from the wrong day. The agency was sent back to do this properly and could try again, so check EOIR’s current notice of appeal instructions before you rely on any count.

The trigger has not moved under any version. The vacated rule also ran from “the stating of an Immigration Judge’s oral decision.” Iskandarani holds its value whatever number ends up in the regulation. The other parts of the 2026 rule are a separate matter: The court declined to stop the changes to briefing, including simultaneous briefs within 20 days of the briefing order, so read the current briefing rules before planning an appeal.

The clock stops when the Board receives the appeal

Mailing the notice on the last day is not filing it. Under § 1003.38(c), the date of filing is the date the Board receives the notice. Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023), put it plainly: The appellants there mailed their notice two days before it was due, by regular mail, and lost. The Board warned that “[a] party who waits until nearly the last day to file an appeal does so at their own peril.”

The fee has its own trap. The notice has to arrive with the fee or a fee waiver request, or the appeal “will not be deemed properly filed.” The court in Amica put the fee at $1,030 as of March 2026.

If the deadline has already passed

Missing the date is serious, and it is not always the end. Two decisions have opened a narrow door.

The Ninth Circuit held in Irigoyen-Briones v. Holder, 644 F.3d 943 (9th Cir. 2011), that the 30-day period is a claim-processing rule, not a limit on the Board’s power. A lawyer there had sent the notice by guaranteed overnight delivery the day before it was due, and the postal service failed to deliver it on time. The court said such a filer “has done all that reasonable diligence requires.” The Board later came around in Morales-Morales, holding that it will accept a late appeal if the person shows equitable tolling: diligence, and an extraordinary circumstance that prevented timely filing. It was firm about the limit: “Even an appeal that is merely 1 day late will not be considered timely unless the party can show both diligence in the filing of the notice of appeal and that an extraordinary circumstance prevented timely filing.” Inadvertently choosing regular mail was not enough there.

The right filing matters. A motion to reconsider argues that the Board got it wrong on the record it already had. Iturribarria v. INS, 321 F.3d 889, 895–97 (9th Cir. 2003), a case about a former lawyer’s ineffective assistance, held that the Board must treat a motion resting on new evidence said to have been undiscoverable earlier as a motion to reopen, which has a 90-day limit rather than 30. As we read that rule, evidence explaining why an appeal was late, such as tracking records, belongs in a motion to reopen in the Ninth Circuit.

Now compare this to the two days in Iskandarani. As the Board describes that motion, it argued that the deadline had not passed, not that a late appeal should be excused. A person in his position would need something much more than a mistaken belief about a mailing date, such as proof of what the court or the system actually told him, and evidence of what he did about it. As we read these cases, an honest misunderstanding of when the clock started is not the kind of event the Board has treated as extraordinary, particularly when the judge said the date out loud.

Missing the appeal has a cost beyond the Board. Federal court review generally requires exhausting the remedies available as of right, and the court in Amica collected cases treating a failure to appeal to the Board as a failure to exhaust, which can close the door to the court of appeals.

What to do the day the judge rules

• Ask for the date on the record, and write it down. Compute it yourself too: 30 calendar days from the day the judge spoke, moved forward if it lands on a weekend or legal holiday.
• Treat the mail as irrelevant. A memorandum, addendum or cover letter arriving later does not move the date if the judge ruled orally.
• If you are unsure whether the ruling was oral, assume it was. A judge who announced the decision in the hearing and later sent a summary gave an oral decision. Only a decision first issued in writing runs from its mailing or electronic notification.
• Read the checked box. A form letter may contain language that does not apply.
• Do not trust a single source for a deadline. If EOIR’s online system shows something different from what the judge said, file by the earlier date, and keep a screenshot. If anyone tells you ten days, the rule is thirty, but file early anyway.
• Plan to have it received early. Electronic filing, where available, or guaranteed delivery with tracking, leaves room for mistakes.
• Check the fee or waiver before the deadline. A notice without one does not count as filed.
• State real reasons in the notice. The waiver rule was set aside, but the form still asks for your reasons, and a vague notice invites trouble.
• If you missed it, move fast and document everything. Gather tracking records, dates and declarations. In the Ninth Circuit, file with the Board within 90 days of a dismissal if your challenge depends on new evidence.

Later developments. These came after this analysis’s March 30, 2026 date. On June 24, 2026, the Ninth Circuit applied the motion-to-reopen rule to a late appeal in Garcia Corrales v. Blanche, 179 F.4th 739, No. 24-6467 (9th Cir. June 24, 2026): A motion challenging the dismissal of a late appeal, when it rests on evidence the Board did not have, is a motion to reopen, and the court told the Board to explain any refusal of tolling where a notice took 42 days to arrive by certified mail. On August 17, 2026, the D.C. Circuit dismissed the government’s appeal in Amica by joint stipulation, Amica Center for Immigrant Rights v. EOIR, No. 26-5156 (D.C. Cir. Aug. 17, 2026). EOIR’s appeal page, updated May 18, 2026, states 30 calendar days after an oral decision, and the government’s online edition of the Code of Federal Regulations, current through November 6, 2026, still prints the ten-day text of 8 C.F.R. § 1003.38.