New EOIR Rule Expands Powers of the Board of Immigration Appeals and AG Barr

July 9, 2019 – The Executive Office for Immigration Review (EOIR) issued a final rule last week that expands the authority of the Board of Immigration Appeals (BIA) and Attorney General William Barr when reviewing an immigration judge’s decision following a removal proceeding.

The BIA reviews an immigration judge’s decision if ether the individual or the Department of Homeland Security (DHS) appeals. The appeal is assigned to either a single Board member or a panel of three Board members, who must either affirm the judge’s decision, reverse it, or send it back with instructions for making a new decision. If the BIA rules against the immigrant, the individual then has the option of appealing the BIA’s decision to a federal district court.

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Currently, a single Board member can issue what’s called an “affirmance without opinion” (AWO), a two-sentence order that states that the BIA agrees with the immigration judge’s decision. An AWO decision does not include any further explanation or reasoning from the BIA.

The government justified AWOs by claiming they would cut through the backlog of pending cases in immigration courts. In practice, they don’t achieve this goal because noncitizens often appeal AWOs to the federal courts. This causes a strain on the federal court system and continues the backlog in the immigration courts, as federal courts often send the case back to the BIA to decide again.

The new rule—which takes effect on August 31, 2019—not only upholds the AWO practice but expands the powers of the BIA and Attorney General Barr in three major ways:

1. The Attorney General can order a BIA-issued decision to be binding on all immigration judges and DHS.

Prior to the new rule, the Attorney General’s own decisions were binding on all of DHS, but the BIA’s decisions weren’t binding on the entire system unless a majority of Board members voted to publish them. Currently, this happens about 30 times a year. By giving the Attorney General unilateral power to designate BIA decisions as precedent with the stroke of a pen, the regulation destabilizes the fair checks and balances in the court process.

2. In any appeal to a federal court, the court must assume the BIA properly handled the case.

Courts must assume that the BIA thoroughly considered all issues, arguments, and claims, even if the BIA did not mention some of them in the decision. This rule applies both to AWO decisions and full written decisions of single Board members or panels. This will negatively affect an immigrant’s ability to demonstrate that the BIA decision is wrong. If immigrants and federal judges don’t have an explanation of how the BIA reached their conclusion, they are deprived of the ability to properly review that explanation on appeal.

3. The BIA can decide on any issue not raised by either party on appeal.

This inappropriately expands the BIA’s authority to issue a decision, potentially one that is binding on all immigration judges, on any issue it wants. As an appellate body, the BIA should be restricted to deciding only those issues brought on appeal.

There was significant backlash from commenters during the public comment period regarding many of the changes’ legality. While EOIR corrected some of these issues before releasing the final rule, it unfortunately still places speed above due process for immigrants. It also puts additional burden on the federal courts. A return to a panel review and written opinions would help to alleviate these problems and increase the legitimacy of the BIA.

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