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EOIR Amends the Regulations Regarding Processing of Immigration Appeals

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The DOJ finalized a rule on December 11, 2020 with far-reaching changes to the process for appealing immigration decisions. The rule will amend the Executive Office for Immigration Review (“EOIR”) regulations regarding the handling of appeals to the Board of Immigration Appeals (“BIA”). The rule removes various procedural protections, emphasizing a perceived need to speed up appeals and prevent “gamesmanship.” However, what the DOJ refers to as gamesmanship is actually a normal, fair appeals process that allows judges to analyze the relevant issues and facts, hear arguments, and decide what justice demands. The changes to the process of appealing immigration court decisions will include reducing the amount of time the BIA is permitted to grant for briefing extensions, limiting the ability of immigration judges to hear cases by discretion, removing the BIA’s ability to reopen or reconsider cases on its own without a pending motion, and forbidding the BIA and immigration judges from administratively closing cases. Additionally, the director of the EOIR, a political appointee of the U.S. attorney general, will be granted new authority to seize appeals away from the BIA if the BIA has not adjudicated within a 335 day deadline. The EOIR director will also be able to hear petitions from lower immigration judges who believe the BIA committed an error of law when reopening or remanding a case. This essentially creates a simple mechanism for immigration judges to seek reversal of appellate judges at the Board of Immigration Appeals by petitioning the EOIR. The changes also revise the kinds of issues the BIA is allowed to consider, preventing the BIA from remanding a case based on new evidence unless such evidence arises from a government-backed investigation. Another implication of this rule will be that immigration attorneys will have a harder time preparing responses to DHS arguments as the new limited time period will force opposing briefs to be filed at the same time, upending the traditional motion-and-reply structure familiar to practitioners.

The DOJ purports that this new rule will ensure the consistency, efficiency, and quality of immigration adjudications, however, procedural protections such as ensuring adequate time to brief issues raised by opposing counsel and the ability for adjudicators to reopen cases in the interest of justice are key to ensuring both sides have a fair chance to be heard. Accordingly, the rule effectively prevents people in immigration proceedings from mounting an effective appeal.

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