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Original Date Announced
December 16, 2020EOIR finalizes regulations that create several restrictions on how BIA decides and processes appeals, imposes restrictions on motions rulings, and truncates the briefing process. Among the many changes, the new regulations:
- Forbid the BIA and the IJs from administratively closing cases, except in limited circumstances (thus retreating from established case law).
- Limit the BIA's authority to reopen a case sua sponte to the correction of “minor mistakes” (thus preventing the BIA from entertaining cases where a respondent's motion to reopen is time- or number-barred), and prohibit the BIA from sua sponte remanding a case for further factfinding, absent narrow circumstances involving jurisdiction, errors of law, and issues preserved for appeal.
- Prohibit the BIA from receiving new evidence, receiving a motion to remand based on new evidence, or remanding a case for an immigration judge to consider new evidence.
- Prohibit the BIA from remanding a case for voluntary departure, and provides the BIA with the authority to grant voluntary departure in the first instance.
- Require simultaneous briefing in non-detained cases (digressing from the long-standing practice of sequential briefing).
- Restrict the BIA's ability to grant briefing extensions, limiting parties to a single briefing extension and a maximum of 14 additional days.
- Require the BIA to screen cases for summary dismissal within 14 days of filing (changing BIA case processing to prioritize and expedite summary dismissals).
- Permit the BIA to affirm an IJ decision "on any basis" in the record including any basis supported by the facts that are not disputed (as opposed to current law, which limits the BIA to express rulings made by the IJ). Allows the BIA to take administrative notice of facts “that are not reasonably subject to dispute.”
- Allow IJs to 'certify' BIA decisions to the EOIR Director for review (thus creating a new mechanism that functionally allows IJs to 'appeal' a BIA decision they disagree with), and allows the Director to require the parties brief the certified case.
- Prohibit IJs from considering any issues beyond the scope of the BIA's remand.
[ID #1023]
Appellate Procedures and Decisional Finality, 85 Fed. Reg. 81588Effective Date
January 15, 2021Subsequent Trump-Era and Court Action(s)
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March 10, 2021
2021.03.10 CENTRO LEGAL DE LA RAZA, et al., Plaintiffs, v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al., Defendants.
On March 10, 2021, Judge Illston in N.D. Cal. preliminarily enjoined the rule which eliminated admin closure and sua sponte MTRs, among other things. The case was brought by Centro Legal de la Raza, ILRC, Tahirih, and RAICES.
View Document -
April 3, 2021
CLINIC v. EOIR (D.D.C.)--Stay Granted
CLINIC, along with Democracy Forward and National Immigrant Justice Center, filed a lawsuit challenging the new EOIR rule. Plaintiffs in the case include CLINIC, Brooklyn Defender Services, Florence Immigrant & Refugee Rights Project, NIJC and HIAS.
On April 3, 2021, D.C. District Court Judge Leon stayed the rule pending the outcome of the litigation. He found that the public comment period of 30 days was insufficient for such a complex and technical rule and, therefore, that the plaintiffs had shown a likelihood of success on the merits.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
View Document
Biden Administration Action: Under Study
November 1, 2021Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure
With this notice in the Fall 2021 Unified Regulatory Agenda, DOJ announced its intention to rescind or modify the enjoined Trump administration regulations regarding finality of case disposition at both the immigration court and appellate levels.
View DocumentBiden Administration Action: Proposed Revocation/Replacement/Modification
September 8, 20232023.09.08 Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure
This proposed rule by the Biden administration's Executive Office for Immigration Review would restore longstanding procedures in place prior to the Trump administration's AA96 Final Rule, including administrative closure of cases by Immigration Judges and the Board of Immigration Appeals, and would clarify and codify other established practices. Given the injunction in place, the proposed regulatory language largely reflects the currently operative status quo.
View DocumentCurrent Status
Not in effectMost Recent Action
September 8, 2023 Action: Proposed Revocation/Replacement/Modification 2023.09.08 Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative ClosureNovember 1, 2021Acted on by Biden Administration
September 8, 2023Acted on by Biden Administration
Original Trump Policy Status
Trump Administration Action: RuleSubject Matter: Hearings and AdjudicationsAgencies Affected: EOIRPre Trump-Era Policies
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February 28, 2003
Under prior regulations and case law, the BIA has considerable leeway with respect to how it manages briefing and adjudicates motions. The EOIR Director has little involvement or role in BIA process. Both BIA and IJs have the authority to administratively close cases.
8 CFR 1003.1 - Organization, jurisdiction, and powers of the Board of Immigration Appeals
Documents
Trump-Era Policy Documents
- New Policy
- Prior Policy
- Subsequent Action
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Subsequent Action
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Commentary
Original Source:
TRAC: The Life and Death of Administrative Closure
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Commentary
Original Source:
ABA Comment on Proposed Rule
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Commentary
Original Source:
AILA IJC AIC Comment on Proposed Rule
- Other
Commentary
TRAC: The Life and Death of Administrative Closure
Go to articleABA Comment on Proposed Rule
Go to articleAILA IJC AIC Comment on Proposed Rule
Go to article