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On August 31, OMB published a memo implementing an executive order from May on "Regulatory Relief." Surprisingly, it may be a unintentional positive for immigration issues. Brief thread.
Memo here: https://www.whitehouse.gov/wp-content/uploads/2020/08/M-20-31.pdf
h/t to @Kent_PubCitizen for bringing it to my attention. https://twitter.com/sarahdwire/status/1303772732711227399
Memo here: https://www.whitehouse.gov/wp-content/uploads/2020/08/M-20-31.pdf
h/t to @Kent_PubCitizen for bringing it to my attention. https://twitter.com/sarahdwire/status/1303772732711227399
The OMB memo implements Section 6 of the May 19 "Executive Order on Regulatory Relief to Support Economic Recovery."
Section 6 declares that "The heads of all agencies shall consider the principles of fairness in administrative enforcement." https://www.whitehouse.gov/presidential-actions/executive-order-regulatory-relief-support-economic-recovery/
Section 6 declares that "The heads of all agencies shall consider the principles of fairness in administrative enforcement." https://www.whitehouse.gov/presidential-actions/executive-order-regulatory-relief-support-economic-recovery/
Section 6 goes beyond just requiring "fairness." It has a detailed set of considerations that agencies must take into account "in the context of particular statutory and regulatory programs and the policy considerations identified in section 1 of this order."
Under the executive order, Section 1 says that agencies should "address this [COVID-19] economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery."
![Under the executive order, Section 1 says that agencies should "address this [COVID-19] economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery."](https://pbs.twimg.com/media/EhjvQtRXcAA5DPs.png "Under the executive order, Section 1 says that agencies should \"address this [COVID-19] economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.\"")
While the executive order seems aimed at making things easier for business by relaxing enforcement, importantly, it applies to "all agencies."
That means the order applies to both DHS, including ICE and CBP, and DOJ, including the agency which runs the immigration courts, EOIR.
That means the order applies to both DHS, including ICE and CBP, and DOJ, including the agency which runs the immigration courts, EOIR.
So that brings us to the August 31 OMB guidance.
The guidance asks all agencies to issue new regulations under the EO by November 26, and also provides a list of "best practices" to guide new regulations.
Keep in mind that this applies to ICE, CBP, and the immigration courts.
The guidance asks all agencies to issue new regulations under the EO by November 26, and also provides a list of "best practices" to guide new regulations.
Keep in mind that this applies to ICE, CBP, and the immigration courts.
So what are some of the things in here that might be positive for immigrants? There is a LOT.
To start, OMB tells agencies to apply the "rule of lenity" in administrative investigations (ICE) and adjudication (EOIR), and to shift the burden of proof to the agency where legal.
To start, OMB tells agencies to apply the "rule of lenity" in administrative investigations (ICE) and adjudication (EOIR), and to shift the burden of proof to the agency where legal.
OMB also tells agencies that the EO requires them to adopt performance metrics which "should not detract from the aim of reaching fact-based, unbiased decisions with respect to all aspects of enforcement."
How does this interact with immigration judge case completion metrics?
How does this interact with immigration judge case completion metrics?
Similarly, OMB declares that "Adjudicators should not be rewarded based on the penalties they award or in any other way that misaligns incentives."
The case completion quotas for immigration judges certainly "misalign incentives."
The case completion quotas for immigration judges certainly "misalign incentives."
OMB's guidance also tells agencies that "the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action."
That should obviously apply to people arrested by ICE. Can this be used to push for discovery?
That should obviously apply to people arrested by ICE. Can this be used to push for discovery?
OMB also tells all agencies (which, again, applies to the immigration courts and DHS) to "adopt or amend regulations regarding evidence and adjudicatory procedure to eliminate any unfair prejudice, reduce undue delay, [and] avoid the needless presentation of cumulative evidence."
![OMB also tells all agencies (which, again, applies to the immigration courts and DHS) to "adopt or amend regulations regarding evidence and adjudicatory procedure to eliminate any unfair prejudice, reduce undue delay, [and] avoid the needless presentation of cumulative evidence."](https://pbs.twimg.com/media/Ehjy_74XsAAoa5x.png "OMB also tells all agencies (which, again, applies to the immigration courts and DHS) to \"adopt or amend regulations regarding evidence and adjudicatory procedure to eliminate any unfair prejudice, reduce undue delay, [and] avoid the needless presentation of cumulative evidence.\"")
Here's the part of OMB's memo which seems to unintentionally call for limiting some immigration enforcement.
"Agencies should establish policies of enforcement discretion ... when the agency determines that the regulated party attempted in good faith to comply with the law."
"Agencies should establish policies of enforcement discretion ... when the agency determines that the regulated party attempted in good faith to comply with the law."
OMB also says that enforcement "should be free of unfair surprise" and calls for ensuring that parties have sufficient time to respond to filings.
I know what I'm citing in our response to the new BIA rule which slashes the time people have to respond to filings!
I know what I'm citing in our response to the new BIA rule which slashes the time people have to respond to filings!
Importantly, it seems very clear that neither the EO nor the OMB intended to apply these guidelines to immigration enforcement.
These are rules designed to help big business get away with murder.
But the EO and the memo apply to "all agencies." And that's a loophole we can use.
These are rules designed to help big business get away with murder.
But the EO and the memo apply to "all agencies." And that's a loophole we can use.
