Signature Optional for Proof-of-Service in EOIR Electronic Filings:
A Detailed Commentary on Cortez v. Bondi, 67 F.4th ___ (10th Cir. 2025)

1. Introduction

Background: Ana Sofia Cortez and her minor son, natives of El Salvador, were placed in removal proceedings after entering the United States without authorization in 2021. An Immigration Judge (IJ) denied their applications for asylum, withholding of removal, and CAT protection. Petitioners attempted to appeal to the Board of Immigration Appeals (BIA) via EOIR’s Electronic Courts and Appeals System (ECAS). The appeal was rejected because counsel did not sign the “Proof of Service” section of Form EOIR-26, despite having checked the box indicating that no separate service was required because ECAS would effectuate it.

After several procedural misfires, the BIA ultimately declined to reconsider its original rejection. The petitioners sought review in the Tenth Circuit, challenging only the refusal to reconsider. The core dispute became a narrow—but important—question of administrative procedure: When a notice of appeal is filed electronically and the “No service needed” box is checked, does the proof-of-service portion still require a handwritten or digital signature?

Key Issue Decided: Whether the BIA erred, as a matter of law, in insisting on a signature in the proof-of-service section when (1) the appeal was filed through ECAS, and (2) the “No service needed” box had been marked because DHS participates in ECAS.

Parties:

• Petitioners: Ana Sofia Cortez and M.Y.A.C.
• Respondent: United States Attorney General (represented by Pamela J. Bondi).

2. Summary of the Judgment

The Tenth Circuit (Judges Hartz, McHugh, and Moritz; opinion by Judge Hartz) vacated the BIA’s order and remanded. Key holdings:

• The BIA’s interpretation that a signature was required in the proof-of-service portion of Form EOIR-26 when electronic filing is used was legally incorrect. The form’s text and governing regulations do not impose such a requirement.
• Because the BIA rested its refusal to reconsider on this erroneous premise, it abused its discretion.
• The court declined to affirm on an alternative ground (untimeliness) because the BIA did not rely on timeliness in its own decision.

3. Analysis

3.1 Precedents Cited

• Zapata-Chacon v. Garland, 51 F.4th 1191 (10th Cir. 2022): clarifies that a court may not uphold agency action on grounds not relied on by the agency, unless remand would be futile.
• Estrada-Cardona v. Garland, 44 F.4th 1275 (10th Cir. 2022): states that legal error by the BIA necessarily constitutes an abuse of discretion.
• Berdiev v. Garland, 13 F.4th 1125 (10th Cir. 2021): addresses reviewability of BIA’s sua sponte reopening decisions when legal error underlies the decision.
• Sarr v. Gonzales, 474 F.3d 783 (10th Cir. 2007): reiterates that courts will not supply alternative rationales for agency decisions.

These authorities guided the court’s refusal to entertain the government’s timeliness argument and its determination that misinterpretation of regulations constitutes reversible legal error.

3.2 Legal Reasoning

a) Textual Analysis of Form EOIR-26 and Regulations

• The form’s general instructions tell filers: “Electronic filers are not required to serve the opposing party if the opposing party is participating in ECAS.”
• They further instruct filers to “Complete and, if applicable, sign the ‘Proof of Service.’” The conditional qualifier strongly suggests that where service occurs automatically, a signature is superfluous.
• 8 C.F.R. § 1003.3(g)(6)(i) expressly excuses separate service when all parties use ECAS. Section 1003.3(g)(5) regulates how signatures must appear when required but never says a signature is required on the proof-of-service line in all circumstances.

b) Practice Manual & Other Guidance

• The 2021 BIA Practice Manual stated “[e]very proof of service must be signed by the person serving the document,” but only if a person actually serves the document. Automated ECAS notice is not “service by a person.”
• The manual itself did not contemplate electronic filing of notices of appeal when Petitioners filed, undermining its persuasive value.
• Later-issued manuals post-dating Petitioners’ filing cannot retroactively create obligations.

c) Administrative Law Principles Applied

• Agency actions “not in accordance with law” must be set aside. By treating a non-existent signature requirement as jurisdictional, the BIA acted contrary to its own regulations.
• The Chenery doctrine prevented the court from affirming on a ground not articulated by the agency (untimeliness).

3.3 Impact of the Decision

This opinion establishes a clear, published precedent within the Tenth Circuit (and persuasive authority elsewhere) that:

1. When EOIR forms explicitly state that no separate service is required because ECAS performs service, the absence of a signature on the proof-of-service section cannot form the basis for rejecting a filing.
2. Courts will scrutinize an agency’s adherence to its own forms and instructions, even in the seemingly ministerial arena of document processing.
3. Alternative agency justifications raised only in litigation (e.g., untimeliness) will not salvage decisions unless the agency itself relied on them.

Practical Consequences:

• Immigration practitioners can confidently rely on ECAS auto-service without signing the proof-of-service section as long as the “No service needed” box is checked.
• The decision pressures EOIR to harmonize its regulations, forms, and manuals, reducing clerical rejections that jeopardize substantive rights.
• Future litigants confronting filing-defect dismissals have a robust precedent for challenging rejections predicated on form misinterpretations.

4. Complex Concepts Simplified

• ECAS (Electronic Courts and Appeals System): EOIR’s online portal permitting digital filing and automatic electronic service to parties registered in the system.
• Proof of Service: A certification indicating that a filing party has delivered copies of a document to the opposing party. In electronic-filing contexts, the system itself often fulfills this function.
• Motion to Reconsider versus Sua Sponte Reopening: A motion to reconsider asks the same tribunal to re-examine a decision for legal or factual error; sua sponte reopening/reconsideration is when the tribunal does so on its own initiative, outside normal time limits.
• Chenery Doctrine: Courts must review agency actions on the grounds invoked by the agency itself, not on post-hoc rationalizations offered in litigation.
• Abuse of Discretion: Standard under which appellate courts reverse if the agency’s decision is arbitrary, capricious, or rests on legal error.

5. Conclusion

Cortez v. Bondi underscores a foundational administrative-law principle: agencies must follow their own rules, forms, and instructions. By holding that a signature is not required in the proof-of-service section when ECAS provides automatic service and the relevant box is checked, the Tenth Circuit removed a procedural trap that threatened substantive rights to appellate review in immigration cases.

Beyond immigration practice, the decision reinforces the judiciary’s role in ensuring that procedural technicalities do not eclipse statutory or regulatory text. Practitioners should expect this precedent to curb unjustified filing rejections and to encourage EOIR to clarify any residual ambiguities in its electronic-filing regime.

Key Takeaway: In the ECAS era, the absence of a signature on a proof-of-service section—after checking “No service needed”—is not a fatal defect. Courts will intervene when agencies impose extra-textual hurdles that impede access to appellate review.