New Proposed Rule to Expand Power of Board of Immigration Appeals

The Department of Justice (DOJ) issued a notice of proposed rulemaking which will dramatically alter the role of the Board of Immigration Appeals (BIA) in removal proceedings. Provisions of the proposed rule include:

• Codification of the Trump Administration’s elimination of administrative closure in removal proceedings from Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) (a decision that the Fourth and Seventh Circuits have already ruled is unlawful);
• New restrictive limits to the agency’s authority to reopen cases sua sponte;
• Limits to the time for the BIA to adjudicate appeal, after which the EOIR Director, often appointed with political considerations, could decide the case himself;
• Reduction in the maximum time allowable for a briefing extension to 14 days;
• Requirement of “simultaneous briefing” for all cases, forcing parties to anticipate what the other side’s arguments are before they have seen them;
• Elimination of motions to remand for new evidence with exceedingly narrow exceptions;
• Authorization for immigration judges, upon receipt of remand of a BIA decision they disagree with, to send the decision to the EOIR director to ask that it be overturned before proceeding with the case as remanded; and
• Empowering the BIA to directly issue final orders of removal, including on grounds not considered or relied upon by the immigration court;

In all, the proposed changes would concentrate far more case-deciding power with the EOIR Director and with members of the BIA.  During the Trump Administration, these positions have been intentionally staffed with those with some of the most anti-immigrant records who will continue to serve after President Trump’s first term, regardless of the results of the election.  DOJ is currently accepting comments to the proposed rule until September 25, 2020.