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The Trump administration puts out ANOTHER final attack on the immigration courts—set to go into effect 5 days before inauguration.This regulation would reshape the appeals process, strip authority from judges, and allow the Director to decide cases. https://public-inspection.federalregister.gov/2020-27008.pdf
Here's an article I wrote on this regulation when it was proposed just a few months ago.
It eliminates one of the most powerful tools the Biden administration could have to address the court backlogs and use prosecutorial discretion—and more. https://immigrationimpact.com/2020/09/16/administrative-closure-regulation/#.X9N9pdhKhjE
It eliminates one of the most powerful tools the Biden administration could have to address the court backlogs and use prosecutorial discretion—and more. https://immigrationimpact.com/2020/09/16/administrative-closure-regulation/#.X9N9pdhKhjE
Before I get into the changes made in the final regulation, here's a thread I wrote breaking down the worst parts of the rule on the day it was initially proposed.
Today EOIR says that the rule has been adopted only "with minor changes." It's just as bad. https://twitter.com/ReichlinMelnick/status/1296914305808564227
Today EOIR says that the rule has been adopted only "with minor changes." It's just as bad. https://twitter.com/ReichlinMelnick/status/1296914305808564227
And of course, like yesterday, I’m going to throw in a picture of Petra I just took to soften the blow that we’re all feeling. Unlike this regulation, she is Very Good.
First, EOIR clarifies when various parts of the rule go into effect:
- The restrictions on sua sponte reopening apply immediately on 1/15
- The appeal changes apply to new / reopened / remanded appeals after 1/15
- Killing admin closure applies to new / reopened cases after 1/15
- The restrictions on sua sponte reopening apply immediately on 1/15
- The appeal changes apply to new / reopened / remanded appeals after 1/15
- Killing admin closure applies to new / reopened cases after 1/15
The new regulations adopts with seemingly no changes a rule restricting briefing extensions from max 90 days to max 14 days.
This will be murderous to pro bono appeals work. Very few pro bono lawyers will take a last-minute case when there's only 14 days extra time permitted.
This will be murderous to pro bono appeals work. Very few pro bono lawyers will take a last-minute case when there's only 14 days extra time permitted.
The final rule also adopts with no change simultaneous briefing for all BIA appeals (currently this is the case for a small subset of detained appeals).
But don't worry—there's a 14-day period for reply briefs (which is actually days shorter because this is all done by mail).
But don't worry—there's a 14-day period for reply briefs (which is actually days shorter because this is all done by mail).
The final rule makes changes to a proposal allowing DHS to demand biometrics from someone whose case is on appeal and if they didn't respond within 90 days the BIA would deem the appeal abandoned.
EOIR admits the original proposal had some serious flaws. Still bad, though!
EOIR admits the original proposal had some serious flaws. Still bad, though!
The final rule also makes some fixes to the initial proposal to allow the BIA to grant voluntary departure, all of which responded to comments pointing out that the original proposal had huge practical flaws.
However, no changes to the BIA's new power to grant or deny relief.
However, no changes to the BIA's new power to grant or deny relief.
The final rule adopts wholesale the proposed rule's allowance of the BIA to engage in factfinding on appeal (but only with government sources or ones that hurt the immigrant's case *cough*bias*cough*).
There is one minor tweak to fix one of the stupidest proposals.
There is one minor tweak to fix one of the stupidest proposals.
The final rule makes absolutely no changes to the proposal to allow the BIA to limit the scope of remand—meaning if a case is remanded to an immigration judge on one issue and the immigrant has since become eligible for another form of relief in the meantime, tough luck.
The final rule ALSO makes absolutely no changes to one of the most patently absurd proposals—which would allow individual immigration judges who think the BIA got an appeal in their case wrong to ask the Director to overturn the BIA.
I am not making this up. Here's the summary.
I am not making this up. Here's the summary.
The final rule makes no substantive changes to the provision killing administrative closure.
Admin closure was one of the tools that the Obama administration used for prosecutorial discretion from 2012-2016. With admin closure dead, they'll have to fully terminate cases instead.
Admin closure was one of the tools that the Obama administration used for prosecutorial discretion from 2012-2016. With admin closure dead, they'll have to fully terminate cases instead.
The final rule makes no changes to the provision killing sua sponte motions to reopen.
These were an important safety valve to prevent some egregious failures of justice from occurring, providing an important equitable remedy in many cases.
Now it'll be dead. Goodbye fairness.
These were an important safety valve to prevent some egregious failures of justice from occurring, providing an important equitable remedy in many cases.
Now it'll be dead. Goodbye fairness.
The final rule makes SOME changes to the rule allowing the Director to decide cases which pending at the BIA for more than 335 days—but none which would prevent the rule from applying to thousands of cases a year.
This gives the Director unprecedented power over peoples' lives.
This gives the Director unprecedented power over peoples' lives.
EOIR got over 1,000 comments opposing the rule. They take issue with the tenor of some comments.
"Many comments appear rooted in a belief that EOIR's adjudicators are incompetent or unethical and are either incapable or unwilling to adhere to applicable law."
Gee, I wonder why?
"Many comments appear rooted in a belief that EOIR's adjudicators are incompetent or unethical and are either incapable or unwilling to adhere to applicable law."
Gee, I wonder why?
Oh look, EOIR had to respond to my personal comment!
Needless to say, they disagree with me that their entire rule is pretext to undermine the immigration court system due to Trump's repeated demands to get rid of judges.
My comment: EOIR's response:
Needless to say, they disagree with me that their entire rule is pretext to undermine the immigration court system due to Trump's repeated demands to get rid of judges.
My comment: EOIR's response:
EOIR totally rejects any claim that rules speeding up appeals will hurt those without lawyers, citing several times to the existence of the BIA Pro Bono Project.
But in my comment, I explained how the new rules make that Project useless!
My comment: EOIR:
But in my comment, I explained how the new rules make that Project useless!
My comment: EOIR:
EOIR's failure to meaningfully engage with the comments, especially those on the major impact the rule would have on pro bono counsel and immigrants without lawyers, may well doom the rule in court.
But regardless, Biden must take steps to unwind the rule once he takes office.
But regardless, Biden must take steps to unwind the rule once he takes office.
Finally, this regulation and yesterday's attack on asylum aren't the last things the administration is going to push out.
At @DOJ_EOIR, in the next week we are likely to see another rule imposing a 15-day-since-first-hearing filing deadline for asylum applications, and new fees.
At @DOJ_EOIR, in the next week we are likely to see another rule imposing a 15-day-since-first-hearing filing deadline for asylum applications, and new fees.
