Thread by @ReichlinMelnick

New! We're finally getting the long-foreshadowed proposal to amend immigration court regulations, which would "streamline" appeals by giving the BIA unprecedented new powers, as well as create a regulatory ban on administrative closure.

Comments due 9/25.
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The new regulation would formalize A.G. Session's elimination of administrative closure in Matter of Castro-Tum by amending the regulations that two federal circuit courts have already relied on to overturn that decision.

The new regulation would "withdraw the Attorney General's delegated authority ... of the BIA and immigration judges to sua sponte reopen a case or reconsider a decision."

This would be a BIG change, blocking the ability of many people to ever overturn an old deportation order.

However, the BIA would still have the authority to reopen cases sua sponte in some 'limited circumstances," but would now require a third-member BIA panel to hear those motions.

The new regulation would make a number of changes to the timeline of the appeals process, and provide even stronger authority for the EOIR Director—a political appointee requiring no Senate confirmation—to issue decisions in cases where the BIA hadn't acted quickly enough.

The specific date at which the EOIR Director would be allowed to issue decisions is 335 days after the record of proceedings is complete.

The rule also standardizes internal appeal "deadlines" to 90 or 180 days after the record is complete.

The text: "there is no reason for a typical appeal to take more than 335 days to adjudicate."

The footnote: " the median time to completion for case appeals in FY 2019 was 323 days"

The result? That suggests MANY cases will be referred to the EOIR Director for adjudication.

The "limited circumstances" where someone would be permitted to file for a formerly sua sponte motion to reopen would be:

(1) intervening change in law or fact that renders a person no longer removable, and due diligence was exercised; or
(2) claim to US citizenship/nationality

This proposed change could be a NIGHTMARE for people trying to appeal their case, as well as the lawyers representing them, by changing the time that the BIA can grant for an extension of the appellate briefing schedule from a maximum of 90 days to a maximum of 14 days.

This new proposal would require simultaneous briefing for all immigration court cases.

Currently, only detained cases require simultaneous briefing—meaning neither side can see the arguments the other side is making in the appeal, and must anticipate the other side's arguments.

This new proposal would severely restrict the BIA's ability to remand cases to the immigration judge in certain circumstances where they do so today, including remands because the IJ didn't provide a required advisal, and remands for DHS to complete its job.

🚨This new proposal would drastically reshape the role of the Board of Immigration Appeals, by giving them independent power to "issue orders of removal, termination or dismissal, and voluntary departure, and orders granting relief or protection."

This proposal would also have huge ramifications for current BIA practice, "clarifying the limited situations in which the BIA may engage in factfinding" (by BANNING the submission of new evidence), and allow the BIA to "affirm a decision based on any valid reason."

This proposal would, following the BIA remanding a decision to the immigration judge, strip authority from judges to consider other issues not contained in the remand.

The list of new changes to the appeals process ends with a doozy—what I'm calling the 'world turned upside down' proposal."

Immigration judges unhappy with the BIA's decision in a case could independently submit a request to the EOIR Director to overturn the BIA decision!

Immigration judges would only be able to ask the EOIR Director to overrule the BIA in what EOIR says are a "limited" set of circumstances, but in reality are extremely broad and could arguably apply to every single appeal (e.g. "the Board decision is vague [or] ambiguous").

Incidentally, I've long thought James McHenry, the EOIR Director, wants to remove the "courts" aspect of the immigration courts and transform the agency into an adjudicator-based model like the Social Security Agency—less courts, more bureaucratic.

So my eyebrows raised here.

EOIR insists allowing immigration judges to go over the head of the BIA and ask for the BIA's boss (which they call a "quality assurance process") is "not a mechanism solely to express disagreements with Board decisions or to lodge objections to particular legal interpretations."

Here EOIR bizarrely blames the immigration backlog on on administrative closure being expanded in 2012.

But the backlog grew mostly due to growing numbers of asylum cases, and admin closure grew post-2012 mostly due to prosecutorial discretion, which was 100% allowed pre-2012!

The regulation offers a true galaxy brain moment here: forget that the BIA has repeatedly said that it is using its authority sua sponte (of their own accord) to reopen cases, in reality none of those circumstances were sua sponte because the BIA had been asked to do it first.

Eliminating motions to reopen where an intervening change in law or fact made someone eligible for relief for which they were previously ineligible would lock in thousands of peoples' deportation orders in circumstances where, today, they have a second shot at staying in the US.

But don't worry, everyone. While immigrants would drastically lose their ability to file motions to reopen their cases with the Board of Immigration Appeals, the regulation would now clarify that ICE can file as many motions to reopen as they feel like, with no limits!

Basically, a lot of the "evidence" provided by this rule boils down to "We broke the system, so we'll fix it by consolidating power in a single political appointee and make it harder for immigrants to win their appeals."

Heads we win, tails you lose.

https://twitter.com/MatthewHoppock/status/1296930059152953344

It brings me a small comfort to realize that the people who drafted these awful rules also seem to be limited to reviewing Westlaw for unpublished BIA decisions, so even they can't access the vast majority of unpublished decisions.

These changes, which would prohibit immigrants from submitting new evidence to the BIA, would effectively require the BIA to ignore intervening changes in circumstance—for instance, regime change in an asylum seeker's home country. They suggest motions to reopen be filed instead.

Going back to my "EOIR Director James McHenry doesn't want the immigration courts to be courts," here the new rule describes immigration judges as "EOIR adjudicators."

They hate that immigration courts operate like courts—and not like a bureaucratic deportation machine.

There are a few more technical changes I'm not going to get into here. A few aren't bad (no longer requiring the immigration judge to review transcripts), but most are in line with the rest of the proposals—make it harder for immigrants to win and make a court less like a court.

Anyway, happy Friday to everyone except the person who decided that this regulation should be published on a Friday.

The rule formally publishes on Wednesday, 8/26. After the rule is published, we'll have until 9/25 to submit comments in opposition.