Department of Justice Proposes New Limit to the Board of Immigration Appeals’ Power


The Department of Justice (DOJ) is proposing a range of measures that will limit the Board of Immigration Appeals’ (BIA) authority. The new rule —scheduled to be published on August 26—will make it harder for the BIA to independently make decisions and accelerates the removal of individuals from the United States.

The proposed changes raise concerns that due process is again under attack. The government should know from experience that rushed and curtailed adjudication of immigration cases undermines fair process for immigrants facing deportation.

The BIA is the appellate body within the DOJ that decides appeals from immigration courts around the country. It also considers other matters such as motions to reopen cases previously decided by an immigration judge.

The rule describes the proposed changes to the BIA’s appeals process as an attempt to “ensure the consistency, efficiency, and quality of its adjudications.”

But the BIA’s proposed rule will not do any of those things. Instead, it will erode due process by placing additional undue pressure on BIA members. It will further limit the avenues of relief available to individuals in immigration proceedings to reduce the overall number of people who ultimately obtain relief from removal.

The “efficiency” measures proposed by the rule are particularly troubling. The rule limits the timeframes for important processes by:

  • Shortening the time for an extension of a briefing on appeal from 90 to 14 days.
  • Requiring the government and individuals facing removal while not in custody to file briefs at the same time instead of consecutively, eliminating the opportunity for people to fully understand and respond to the government’s arguments for their removal.
  • Establishing limitations on timeframes for adjudicating appeals.

The rule gives more leeway to the BIA when its decisions will result in speedier removal from the United States by, among other things:

  • Allowing the BIA to issue final orders of removal when it would have previously returned the case to an immigration judge to order removal.
  • Eliminating remands to immigration court for background checks.
  • Allowing the BIA to deem an application abandoned, rather than an immigration judge who is supposed to be the only fact finder.

In limiting the decision-making authority of the BIA, the rule proposes to remove the BIA’s ability to reopen a case or reconsider a prior removal order on its own authority, except in very limited circumstances.

While limiting authority to grant a reopening in a case may appear to be a minor technical change, the decision deprives immigrants in removal proceedings an important avenue for relief when a motion to reopen may otherwise be time barred.

The rule also limits which motions to remand that the BIA may consider, barring, with some exceptions, motions to remand based on new evidence and remands to an immigration judge to consider new evidence.

Importantly, the DOJ continues its attack on administrative closure , a long-standing measure that allows judges to manage their exploding dockets. The rule makes clear that BIA members have no “freestanding authority” to administratively close a case. This formalizes former Attorney General Jeff Session’s decision in Matter of Castro-Tum , and amends the regulations that have been used to challenge that decision in two circuit courts.

The DOJ points to the growing number of appeals at the BIA—a 38% increase since 2018—as justification for the rule. The dramatic changes to BIA processes, however, cannot be reconciled with creating mere efficiencies. As we discovered when tools like administrative closure were taken away from immigration judges, the results of these measures may increase the immigration case backlog.

Comments to the rule are due September 25. The rule will be published 30 days later.

Whatever the motives behind the changes, the rule is a brazen attempt to dramatically alter current processes at the BIA and remove important due process safeguards in BIA processes while swiftly moving individuals toward deportation.

This post originally appeared on Immigration Impact. Reprinted with permission.

About The Author

Emily Creighton is the Legal Director, Transparency at the American Immigration Council. She oversees the development of the Council's transparency-related litigation, amicus briefs, practice advisories and advocacy, including maintaining an active docket of Freedom of Information Act (FOIA) cases. She seeks to uncover agency records that will advance litigation, advocacy and research efforts to combat abuses at the border and unlawful enforcement tactics, promote fair and just removal processes, and shed light on unlawful adjudications of immigration benefits. She also seeks to strengthen collaboration among organizations involved in open government work in the immigration space. Prior to her new role at the Council, she served as the Senior Advisor on Humanitarian Programs at the CIS Ombudsman's Office from 2016 to 2017. Previous to that, she was a Senior Staff Attorney with the Council. As a staff attorney, she engaged in impact litigation, representing amicus curiae in immigration cases in federal court and before the Board of Immigration Appeals, and authored numerous practice advisories. Emily holds a J.D. from American University Washington College of Law and a B.A. from Boston College.

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