The Department of Justice finalized a decision amending the current law on immigration appeals that will further restrict which cases can be appealed to the Board of Immigration Appeals (BIA) and the Executive Office for Immigration Review (EOIR). In the name of “consistency, efficiency, and quality of adjudications,” the Department of Justice’s new rule makes 12 categorical changes to the 8 CFR parts 1003 Executive Office for Immigration Review and 1240 Proceedings to Determine Removability of Aliens in the United States.

Rather than returning the case to an immigration judge, now the “BIA has authority to issue final orders when adjudicating an appeal, including final orders of removal when a finding of removability has been made by an immigration judge and an application for protection or relief from removal has been denied.” It further allows the BIA to “issue final decisions on requests for voluntary departure based on the record of proceedings.”

Additionally, the BIA is “prohibited from receiving new evidence on appeal, remanding a case for the immigration judge to consider new evidence in the course of adjudicating an appeal, or considering a motion to remand based on new evidence.” The new rule also restricts them from engaging in any fact-finding activities regarding the appeal.

In January 1983, the DOJ went through an internal reorganization that established the EOIR as a separate agency within the department. The EOIR “interprets and administers federal immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings.” Their primary mission is to adjudicate cases including “detained aliens, criminal aliens, and aliens seeking asylum as a form of relief from removal.”

The BIA is an administrative body within the EOIR headquarters and does not generally conduct courtroom proceedings; rather it “decides appeals by conducting a ‘paper review’ of cases.” The BIA is the highest administrative body to interpret immigration laws and includes 23 Appellate Immigration Judges. The “decisions are binding on all DHS officers and Immigration Judges unless modified or overruled by the Attorney General or a federal court.”

The Department of Justice certifies that the changes to the policy are, in part, a direct result of the backlog of cases and strongly criticizes the comments that assert these changes are politically motivated. In fiscal year 2020, 51,250 case appeals were filed. 84,673 cases were still pending by the end of fiscal year 2020, which is a 26% increase from the 67,014 cases pending by the end of fiscal year 2019. However, at the end of fiscal year 2015, just months before the Trump administration was about to take office, the pending appeals caseload was just 12,867 cases, which is a 558.1% increase in just four years.

The rule will be published in the Federal Register on December 16, 2020, after reviewing feedback received during the 30-day comment period that began on August 26. The report received over 1,000 comments from private citizens. One of the most cited concerns about the new policy is the fear that the new rule denies aliens the right to due process in deportation appeals. With the new streamlined process of deadlines, some also commented that this would “put increased pressure on immigration judges to decide cases quickly” and it “would eliminate a robust and meaningful appeal process.”

Commenters also speculated that “the rule was motivated by politics and would ‘enable politicized and biased decision-making.’” Some commenters further addressed their concerns by stating, “the rule would turn the BIA into a political tool” or that the changes would turn the BIA into “a rubber stamp for deportation orders.”

The DOJ addresses the comments that were posed during the comment period in the published new rule. One of their most significant rebuttals was that “commenters equate ‘due process’ with an outcome favorable to the alien and an ‘erosion’ of due process with an outcome adverse to the alien.” They argue that due process is not being restricted for the sake of efficiency and that those who consider that to be the case think that more time looking at a case will always lead to more favorable outcomes for the defendant alien.