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New EOIR regs restrict admin closure, curtail BIA decisional authorities, and truncate briefing

  1. Date Announced

    Dec. 16, 2020

    EOIR 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]

    View Policy Document
  2. Effective Date of Change

    Jan. 15, 2021
  3. Subsequent Action

    March 10, 2021

    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.

    2021.03.10 CENTRO LEGAL DE LA RAZA, et al., Plaintiffs, v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al., Defendants.
  4. Subsequent Action

    April 3, 2021

    CLINIC, along with Democracy Forward and National Immigration 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.**

    CLINIC v. EOIR (D.D.C.)--Stay Granted
Type of Action: Rule
Subject Matter: Hearings and Adjudications
Agencies Affected: EOIR

Prior Policies

Subsequent Actions

Other Documents

Commentary

TRAC: The Life and Death of Administrative Closure

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ABA Comment on Proposed Rule

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AILA IJC AIC Comment on Proposed Rule

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