A new Department of Justice interim rule, effective August 26, 2019, and published on the same day, makes significant changes to several components of the Executive Office for Immigration Review (EOIR) and its lines of authority.
Among other things, the interim rule:
- Outlines the functions and roles of the new Office of Policy and transfers the Office of Legal Access Programs (OLAP) to a division in the Office of Policy.
- Delegates authority from the Attorney General to the EOIR Director when appeals pending before the Board of Immigration Appeals (BIA) have not been “timely resolved in order to allow more practical flexibility in efficiently deciding appeals.” Specifically, the rule states that with limited exceptions, appeals assigned to a single Board member must be adjudicated within 90 days of completion of the record, and appeals assigned to a three-member panel must be completed within 180 days after assignment. Appeals not completed within these time limits that are not subject to an exception will be assigned by the BIA Chairman either to him- or herself or to a Vice Chairman for a final decision within 14 days, “or the Chairman shall refer them to the Attorney General.”
- Distinguishes functions performed by the Office of Policy and the Office of the General Counsel (OGC). Specifically, the rule transfers some of OGC’s current programs to the Office of Policy. The rule explains that the General Counsel, subject to the supervision of the Director, remains the chief legal counsel and supervisor of legal activities related to specific categories of issues, but expressly provides that the General Counsel “does not have authority to influence the adjudication of specific cases under the [Immigration and Nationality Act (INA)], including as an advisor on disciplinary matters related to the adjudication of cases under the cases under the It also explains that the General Counsel may continue to advise on matters of immigration law, provided that the advice does not direct or influence specific adjudications under the Act.”
- Changes the titles of members of the BIA. Specifically, the rule provides that members of the Board will also be known as “Appellate Immigration Judges.”
The rule states that it is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because it is an “internal delegation of administrative authority.” The DOJ said it is providing an opportunity for “post-promulgation comment” before the final rule is issued. Written comments must be received by October 25, 2019.
Reaction. Ashley Tabaddor, president of the National Association of Immigration Judges (NAIJ), called the new interim rule “an unprecedented attempt at agency overreach” and said that it “ends any transparency and assurance of independent decision making over individual cases.” Characterizing the new rule as a “wolf in sheep’s clothing,” Ms. Tabaddor said that although the rule is “couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators.” She said NAIJ would “provide a more detailed analysis in the days ahead,” noting that NAIJ received notice of the action on the same day the press was advised.