February 14, 2026
Alexander A. Krasnyanskiy, Esq,
Gleb A. Paserba, Asylum Coordinator
ВИДЕО: ICE задерживает даже семьи с детьми
BIA Appeals Reform: What Will Change Starting March 9, 2026
What does the upcoming reform of the immigration appeals system—set to take effect on March 9, 2026—mean for people seeking protection from persecution in the United States if their appeals are filed after that date? Appellate Procedures for the Board of Immigration Appeals, 91 Fed. Reg. 5267, 5267 (Feb. 6, 2026)
Who’s likely to lose from this? Who could actually benefit?
What are the less obvious consequences of the change?
Will it impact the ability to negotiate with DHS, the federal appeal structure, or those whose appeals are already pending?
And most importantly: what can be done now to prepare and minimize harm?
Today’s focus is the practical impact these new rules will have on asylum seekers. Legal nuances and questions unrelated to asylum will be covered in a separate video later.
But here’s the spoiler: things aren’t as bad as they may seem at first glance. On the whole, foreign nationals are more likely to benefit than to lose.
Not everyone—but many.
The Current System and Why It’s Being Reformed
Let’s get to it.
The changes to BIA appeals have stirred up a storm—just about everyone’s weighed in lately. And honestly, it’s no surprise: this is a major overhaul. Decades of appellate practice are being upended, and with them, the strategies used by losing parties. 91 Fed. Reg. at 5268–69
Many aren’t ready, can’t adapt, or simply refuse to. But it’s not just immigrants who will have to adjust—these new rules apply across the board. The government will also need to rework its systems. And like with any major shift, there will be winners and losers. Still, reform is clearly needed. The appeals process is gridlocked and effectively nonfunctional: cases are left hanging for years, and the backlog keeps growing. id. at 5269–70
So, how has the BIA appeal process worked until now? For decades, filing an appeal was practically a guarantee of full review. As long as the immigrant or the government submitted a timely appeal—even with minimal reasoning—the BIA would engage with the case in detail. Courts produced transcripts, clerks reviewed evidence, and a judge (or panel) examined the law. In the vast majority of cases, the result was a denial—but it was a full, reasoned denial. 8 C.F.R. § 1003.1(d)(1); 91 Fed. Reg. at 5267, 5269
That held true even when the case had blatant errors—including procedural issues like missing proper notice. While the BIA had the authority to summarily toss such appeals, they rarely used it—typically only when the mistake was the immigrant’s. 91 Fed. Reg. at 5268–69 Over time, both sides learned how to game the process and stall cases indefinitely. By framing the right kind of argument, even in a case with a solid judgment, you could get it dragged into a full review. The result? A process that crawled at a snail’s pace, sometimes for years. id. at 5269
In effect, appeals became a legal loophole—allowing people with no viable case to legally remain in the U.S. for years. Right now, our firm has about 30 appeals that have been waiting on briefing schedules for over a year. id.
Who Benefited—and Who Didn’t
Who gained under the old system?
Mostly, people with no case at all—those who, under any scenario, would eventually lose. An appeal gave them extra time: to find another option, to get married, to earn money, to leave on their own terms, or something else. Some people who didn’t yet qualify for permanent status but might later—like through family reunification—also used the appeal as a temporary fix, a placeholder. id. at 5270
And who lost out?
Everyone else. Solid cases with real judicial mistakes could sit in limbo for years. Legal precedent stopped evolving. The government abused the system too—often appealing even correct decisions, hoping that by the time the appeal ended, the basis for asylum might no longer apply and the immigrant could be deported after all. In short, the appellate process became completely stagnant. id.
How the New System Will Work
How is the reform supposed to fix this?
The biggest change is a new “screening” process by a judge panel before a full review ever happens. Up to 90% of appeals could be denied outright within 15 days of filing. It’s essentially a certiorari-style system, similar to how the Supreme Court selects cases. 91 Fed. Reg. at 5270–71
At the first stage, the appeal goes to the panel—or more accurately, their clerks—and a vote is taken. If a majority votes to hear the case, it proceeds to full review (as is done now). If not, the appeal is dismissed, and the only option left for the immigrant is to go to federal court. id. at 5270–71
The government’s goal is to reject most cases and only examine those where the judge clearly erred or a new, substantial argument is raised for the first time. id. at 5271
So what does that mean in practice?
Most appeals will get rejected at the door. Only a handful will make it to full review. Gaining access to that review will be significantly harder. Cases must be fully and properly prepared right from the start. id.
Service fees will go up. Today, only about 10% of the work is done at the time of filing, with the rest handled over the following year. That’s about to flip. At least half the work will now need to be done upfront—and fast. id.
And there’s more: logistical problems will make things harder. For example, early in the case, transcripts of hearings are often unavailable, which makes it difficult to write a proper appeal or rebuttal. Audio recordings can be requested, but that typically takes 2–3 weeks, depending on the court—though this is slowly changing. In many cases, digital recordings can now be downloaded instantly through ECAS. id. at 5271–72
But recordings need to be transcribed—lawyers need text, not hours of audio. That means additional costs. All of this will make it more difficult to get a case past the screening stage. id. at 5272
Other changes include simultaneous briefing: both sides will now submit briefs at the same time, instead of one after the other (though replies are still allowed). In some cases, the deadline to submit will shrink from 30 days to just 10—although this won’t apply to merits-based appeals. id. at 5272–73
Courts will also lose the ability to certify the accuracy of transcripts—not that this mattered much, since judges rarely did it anyway. What matters more is that people denied without a full hearing (for example, via a summary order) will be hit hardest: the BIA is signaling it has no interest in revisiting those cases. id. at 5273
These are major changes—but they don’t alter the system’s basic structure. id.
Who Wins and Who Loses
So, who benefits from the new system?
First, people who won their case. The government will no longer be able to file automatic, baseless appeals just to delay enforcement. This tactic was especially common last year—especially in California—and we currently have dozens of such cases in our office. Of course, this assumes the same rules apply to both sides. If so, this is a major win. id. at 5271, 5273
Also benefiting: immigrants whose cases involve real judicial errors and who have a solid shot at overturning the decision. But they’ll need to overcome new procedural hurdles and convince the panel their case deserves review. It won’t be easy—but it’s doable, if the prep work is strong. id. at 5273
And who’s going to lose?
Those with weak cases. Under the government’s plan, most of these appeals will be screened out early. Using the appeals process to stall deportation probably won’t work anymore. id.
Let’s be blunt.
Appeals that only challenge factual findings—not legal errors—are the first to go. These include credibility assessments, whether testimony was truthful, whether evidence was necessary or available, historical determinations, severity of past harm, risk of future persecution, country conditions, motives of persecutors, and whether persecution was connected to a protected ground. id. at 5273–74
If your main argument boils down to “the judge got it wrong” or “they misread the facts”—without citing a legal or constitutional error—your appeal will be tossed. id.
Also at a disadvantage: people with potentially valid claims who can’t fully present them. Appeals take money, time, and resources—not everyone has them. That’s especially true for those in detention. Preparing a case from jail is hard; preparing an appeal is even harder. These issues already exist, but the new rules will make them worse. 91 Fed. Reg. at 5274
Indirect Consequences
What are the indirect effects we can expect?
If the changes stick, negotiating with the government will become harder. The appeal itself will no longer serve as a bargaining chip. Right now, everyone knows a denial isn’t the end—an appeal adds years of delay. That delay often allowed defense counsel to negotiate things like voluntary departure without a removal order. With the calendar finally moving again, that leverage may disappear. id. at 5274–75
The way we file secondary motions—like to reopen a case because of ineffective assistance—will also change. With the old delays, there was time to handle that. Going forward, everything will have to be done much faster. id. at 5275
In short, for most people, immigration court will become the final stop. id.
What to Do
So what should you do?
1. If your case is strong and clearly meets legal requirements, not much changes.
You just need to prepare it properly: follow the law, gather evidence, hire qualified experts (not random people), submit a clear brief, and meet the court’s procedural standards. This is about the law as it stands—not wishful thinking or policy opinions.
From experience, only about 2 out of 10 cases fully meet the standard—and even then, only after we tighten things up. You also need to be ready for judicial error. Judges are human, the law is complex, and mistakes happen. A competent lawyer should understand that and be ready to act fast.
Keep in mind: now, your appeal must be solid from the very beginning. The old “delay game” is dead. You’ll need to request recordings, transcribe them, review the record, study the law, and write arguments compelling enough to catch the panel’s attention. That takes time. The old method—filing two forms and waiting three years—is over. Going forward, your best chance is solid preparation. id. at 5272–73
2. If your case is borderline—some merit, but undeveloped law, weak evidence, or problematic facts—you’ll need even more serious preparation.
Hire a lawyer who can identify issues, analyze appellate trends, prepare trial arguments, and separate appellate strategy in case of loss. Where the law isn’t yet settled, your odds of success on appeal might actually improve. But you must plan for it early.
Our firm’s library contains around 8,000 precedent and unpublished decisions relevant to these kinds of cases, and new ones come out all the time. And that’s just BIA; federal circuit courts are another world entirely. Sorting through all of this and crafting a custom legal argument for your situation takes real time. So don’t delay!
3. If your case is weak or full of holes, the takeaway is simple.
The days of buying time with an appeal are over. You’ll need to find another path. A sharp lawyer might still find a hook to get full review, but even then, delays will be short. Counting on years of waiting is no longer realistic. id. at 5273–74
4. If your plan is just to stall until a new basis for status appears—new law, marriage, whatever—this strategy likely won’t work either. You’ll need to negotiate directly with the government or find other options.
5. Special note for those trying to use the appeal—more precisely, the ability to waive it—as leverage in negotiations. That’s been a common tactic: offering to drop the appeal in exchange for something like voluntary departure without a deportation order, even in cases where the law technically prohibits it.
But once appeals are no longer a right and the process speeds up, the government probably won’t be as willing to play along. That said, this might not happen immediately. Paper is one thing; real-world practice is another. If the system actually starts moving again, that’s one story. If not, DHS may continue offering deals in exchange for appeal waivers. id. at 5274–75
6. Finally, don’t forget federal court review is still available—it hasn’t gone away.
Right now, these appeals move relatively quickly. But if the BIA starts screening out most cases and federal review becomes the only option for many, those dockets will swell. Speed will suffer. In other words: you may be trading one bottleneck for another. id. at 5275
Conclusion
Our firm is generally prepared and not overly worried about these changes. We’ve always tried to prepare cases thoroughly from the start when we have the time. Of course, when a client shows up two days before a deadline, we go into overdrive.
Still, in most cases we request audio early, transcribe it, and often prepare briefs well before the thirty-day mark. Other firms we work with professionally are doing the same. So if you need help—call. As always, we offer a significant youth discount to clients under 23.
That’s all for now. The fight continues—good luck to all!
← Home, English version, BlogFebruary 14, 2026
Alexander A. Krasnyanskiy, Esq,
Gleb A. Paserba, Asylum Coordinator