The Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) issued a proposed rule on August 26, 2020, that would make multiple changes to processing of appeals by the Board of Immigration Appeals (BIA).

Among other things, the proposed rule would “make clear that there is no freestanding authority of line immigration judges or BIA members to administratively close cases.” It would shorten the time allowed for the BIA to grant an extension for a party to file an initial or reply brief from 90 to 14 days; decrease the scope of motions to remand that the BIA may consider, including “mak[ing] clear that the BIA cannot remand a case under a ‘totality of the circumstances’ standard”; and delegate authority to the BIA “to issue orders of removal, termination or dismissal, and voluntary departure, and orders granting relief or protection as part of the process to adjudicate appeals.”

The proposed rule also seeks to limit the authority of immigration judges and BIA members to take action “appropriate and necessary for the disposition” of the cases they adjudicate. “The broad sweep of this language has caused confusion,” DOJ said, especially regarding administrative closure. The proposed rule seeks to address that confusion by making it clear that neither the Board nor immigration judges have authority under the regulations to administratively close a case—”either unilaterally or with the consent of the parties—unless authorized by regulation or a judicial settlement.” DOJ also proposes to withdraw, with limited exceptions, the BIA’s authority to sua spontereopen or reconsider decisions and to certify cases to itself on its own motion.

DOJ said it believes that these and other proposed changes will enable EOIR “to better address the growing number of cases and related challenges, as well as to ensure that all cases are treated in an expeditious manner consistent with due process.”

Comments should be submitted by September 25, 2020, using one of the methods listed in the proposed rule’s summary.

Related Link:

EOIR proposed rule