EOIR’s Latest Plan: Overhauling the BIA’s Procedures in Fourteen Steps

On Friday, August 21, 2020, the National Archives and Records Administration posted an advance copy of the Executive Office for Immigration Review’s (EOIR) notice of proposed rulemaking (NPRM) for a new rule, titled “Administrative Closure: Appellate Procedures and Decisional Finality in Immigration Proceedings.” The proposed rule’s text is available at this link. The public inspection documents site indicates they slated it for publication on August 26, 2020, which will start a thirty-day comment period, with comments due September 25, 2020.

Advocates need to submit comments in the coming month.

The NPRM advances yet another laundry list of reforms designed to produce final orders of removal more quickly by eliminating important procedural protections in the immigration courts and Board of Immigration Appeals (BIA). It purports to reduce unwarranted delays and provide the BIA with appropriate tools to make final decisions.

But as with the administration’s heavy use of the Attorney General’s certification authority, and its earlier regulatory changes–including its returning the BIA’s affirmances without opinion practices and revising the BIA’s panel assignment and publication policies (Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 84 Fed. Reg. 31,463 (July 2, 2019)); bestowing the agency’s Director with power to rule on individual cases and also set precedents (Organization of the Executive Office for Immigration Review, 84 Fed. Reg. 44,537 (Aug. 26, 2019)); and court-packing (Expanding the Size of the Board of Immigration Appeals, 85 Fed. Reg. 18,105 (Apr. 1, 2020))—this move further undermines the BIA’s professional adjudicators and institutional integrity.

Parsing each of the proposed changes is beyond this post’s scope. In brief, however, it makes the following fourteen changes:

1. shrinking the permitted briefing extensions to a single fourteen-day period, having already raised the legal standard for granting such extensions (Case Processing at the Board of Immigration Appeals, OOD PM 20-01 (Oct. 1, 2019));
2. eliminating responsive filings, requiring appellants and appellees in both detained and nondetained cases to file their opening and answering briefs simultaneously;
3. erasing the BIA’s authority to remand records involving presumptive grants of relief for background checks and instead inviting the BIA’s factfinding in the first instance and also authorizing it to deem applications abandoned in the first instance;
4. allowing the BIA to enter removal orders and grant voluntary departure in the first instance and eliminating the requirement that those persons granted voluntary departure receive meaningful advisals;
5. upending decades of settled practice and case law on motions to remand and motions to reopen, and directing parties to file concurrent motions and appeals in the name of limiting BIA factfinding;
6. granting the BIA broad factfinding authority and eschewing party presentation;
7. preventing the BIA’s remanding under the “totality of the circumstances” and instead requiring that a Board Member, temporary Board Member, or Appellate Immigration Judge responsible for that kindness detail his or her reasoning for entering a favorable ruling;
8. attempting to prevent parties from seeking alternative relief on remand by authorizing the BIA to limit a remand’s scope even where it does not retain jurisdiction, contrary to long-standing case law;
9. giving the IJs the power to step into one party’s shoes in challenging a BIA remand order and the agency’s Director further authority to overrule the BIA;
10. eliminating regulatory authority for the IJs’ and the BIA’s entering administrative closure orders, even where appropriate and necessary;
11. upending decades of settled practice and case law on motions to reopen by eliminating regulatory authority for the IJs’ and the BIA’s reopening proceedings or reconsidering decisions on their own motions, requiring that a three-member panel rule on the narrow exception the NPRM creates, and granting the Department of Homeland Security (DHS) the authority to approve the IJs’ and the BIA’s otherwise making exceptions to the time and number bars;
12. eliminating the BIA’s regulatory authority to certify cases to itself, a mechanism the BIA uses for—among other things—remedying the lack of a mailbox rule by docketing untimely filed appeals;
13. overhauling the BIA’s case-processing timelines in a way that disincentivizes reasoned decisionmaking in favor of rapid dismissals and increasing the likelihood the agency’s Director will rule on individual cases; and
14. ceasing the practice of the BIA sending the IJs’ oral decisions to IJs for their review and signature and the immigration courts’ sending physical case files to the BIA.

Notably, the administration proposes these purported cost-saving measures at the same time it aims to increase the fee for filing a notice of appeal in the BIA from $110 to $975 and for filing a motion to reopen or reconsider in the BIA from $110 to $895 (Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11,866, 11,870 (Feb. 28, 2020)). It may also line up with a fiscal-year increase in employees’ performance work plan requirements, as the administration has done previously. See Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (Oct. 1, 2017), https://www.naij-usa.org/images/uploads/publications/NAIJ_Quotas_in_IJ_Performance_Evaluation_10-1-17.pdf.

The Office of Management and Budget’s Office of Information and Regulatory Affairs concluded reviewing RIN 1125-AA96 three weeks ago, on August 3, 2020. (The spring agenda also indicates that they merged it with another, RIN 1125-AA97.)

Somewhat curiously, the fall 2019 agenda indicated that the administration would promulgate this rule as an Interim Final Rule (IFR), not an NPRM. And the Department’s Fall 2019 priorities statement did not reference it. Rather, the notice itself stated that it appeared for the first time in the fall 2019 agenda.

For Congressional Review Act purposes, a rule promulgated as an IFR is just as final as one promulgated with notice-and-comment rulemaking. The former would likely be more vulnerable to a set-aside under judicial review, particularly if the new administration does not defend it. There may, however, be a mechanism for a new administration to alter or rescind an IFR following post-promulgation comments, particularly if the rule included a stipulation to respond to later comments. See Org. for Competitive Markets v. U.S. Dep’t of Agric., 912 F.3d 455, 460 (8th Cir. 2018) (“It is certainly not unprecedented for an agency to rescind an ‘interim final rule’ because it determines that additional public comment is needed.”) (citing Mortg. Inv’rs Corp. of Ohio v. Gober, 220 F.3d 1375, 1377 (Fed. Cir. 2000)). Notably, the Office of the Federal Register’s guidance states that “[i]n most cases, the agency stipulates that it will alter the interim rule if warranted by public comments.” Office of the Federal Register, A Guide to the Rulemaking Process (Sept. 2013), available at https://www.federalregister.gov/uploads/2013/09/The-Rulemaking-Process.pdf.

Again, advocates need to submit comments in the coming month.

An update: As expected, the agency published the NPRM in the Federal Register on August 26, 2020. See Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 52,491 (Aug. 26, 2020).