The BIA’s Growing Tilt Toward DHS: How Immigration Appeals Are Becoming Harder to Win

Over the past year, immigration law has been changing in ways that many immigrants may never hear about.

While changes in immigration policy often make national headlines, some of the most important developments occur quietly through decisions issued by the Board of Immigration Appeals, commonly known as the BIA. The BIA is the highest administrative body that interprets and applies immigration law, and its published precedent decisions can affect immigration judges and cases throughout the country.

Recently, many of these decisions have taken a restrictive approach toward immigrants fighting their cases in immigration court.

A Greater Focus on Credibility

One noticeable trend involves asylum cases and credibility.

In several recent decisions, the BIA has closely examined inconsistencies between an immigrant's testimony, asylum application, credible-fear interview, and supporting documents. Even where an immigration judge initially found an applicant credible, the BIA has sent cases back when it concluded that the judge did not sufficiently address inconsistencies in the record.

For example, in Matter of H-I-A-H-, 29 I&N Dec. 823 (BIA 2026), the BIA emphasized that credibility must be evaluated based on the “totality of the circumstances.” More recently, Matter of A-Q-R-K-, 29 I&N Dec. 865 (BIA 2026), again addressed an immigration judge's favorable credibility determination and the failure to adequately resolve inconsistencies.

This matters because asylum cases often depend heavily on testimony about events that occurred years earlier, sometimes under traumatic circumstances and in another country.

Identity and Documents Are Receiving Increased Scrutiny

The BIA has also emphasized an asylum applicant's burden to establish his or her identity.

In Matter of I-S-M-, 29 I&N Dec. 811 (BIA 2026), the BIA described identity as a threshold issue in an asylum case. The applicant in that case had significant inconsistencies involving names, nationalities, and identity documents, and the BIA upheld the determination that he had not sufficiently established his identity.

The broader lesson is important: immigration courts may scrutinize foreign passports, identification cards, birth records, employment records, and other documents much more closely than applicants expect. A document that an immigrant has used for years may suddenly become an important evidentiary issue in immigration court.

Winning Before the Immigration Judge May Not Be the End

Another reality that immigrants sometimes do not understand is that winning before an immigration judge does not necessarily end the case.

The Department of Homeland Security can appeal a favorable immigration judge decision to the BIA. The BIA can then affirm the decision, reverse it, or send the case back to the immigration judge for additional findings. That means someone can win asylum after a full hearing, only to find themselves continuing to litigate the same case months later because the government appealed.

A Noticeable Tilt Toward the Government

Perhaps the most concerning trend for immigrants and their attorneys is how frequently recent BIA precedent decisions have favored arguments advanced by the Department of Homeland Security. In case after case, the Board has reversed or questioned decisions in which immigration judges granted relief, found respondents credible, terminated proceedings, granted continuances, or otherwise ruled in favor of immigrants. Recent precedent decisions have made asylum credibility findings easier to challenge, placed greater emphasis on inconsistencies and document authentication, restricted administrative closure and continuances, narrowed certain asylum theories, and reversed favorable exercises of discretion. The BIA's published Volume 29 decisions provide numerous examples of this trend, including Matter of H-I-A-H-, Matter of I-S-M-, Matter of A-G-O-F-, Matter of H-L-S-M-, Matter of BEST, and Matter of T-A-G-. This does not mean that DHS wins every appeal or that every BIA decision is legally incorrect. But the direction of the recent precedent is difficult to ignore: many of the decisions establishing new nationwide rules have strengthened DHS's litigation position or made it more difficult for respondents to obtain or preserve relief in immigration court.

This is particularly important because the BIA is not simply deciding what happens to one immigrant. When the Board designates a decision as precedent, the legal rule announced in that case can become binding on immigration judges nationwide. As a result, a DHS appeal involving one asylum applicant can ultimately produce a precedent that makes it harder for thousands of future applicants to establish credibility, obtain a continuance, prove hardship, authenticate evidence, or otherwise prevail in removal proceedings. The effects therefore extend far beyond the individuals whose names appear on the decisions.

The Appeals Process Itself Is Changing

The changes are not limited to individual cases. In February 2026, the Department of Justice issued new regulations intended to streamline BIA appellate review and address the Board's substantial backlog. Among other changes, the regulations altered aspects of how cases receive merits review and how appellate briefing operates.

For immigrants and their attorneys, this means understanding immigration court procedure is becoming just as important as understanding the underlying immigration benefit.

What Does This Mean for Immigrants in Court?

The larger takeaway is that immigration litigation has become increasingly technical.

A case may turn on a statement made during an airport interview, a discrepancy in an old asylum application, the authenticity of a foreign document, whether sufficient corroborating evidence was provided, or whether an immigration judge adequately explained a favorable ruling.

For anyone currently in removal proceedings, it is important to understand that obtaining relief from an immigration judge may only be one stage of the process. Both sides generally have appellate rights, and precedent decisions issued by the BIA can change how similar cases are evaluated nationwide.

Immigration law does not change only when Congress passes a law or a new policy appears in the news. Sometimes a few pages issued by the BIA can significantly change how thousands of immigration cases are argued and decided.