Comment on Executive Office for Immigration Review Proposed Rule Regarding Appeal Procedures and Administrative Closure

The American Immigration Council and the American Immigration Lawyers Association, through their joint initiative, the Immigration Justice Campaign, submitted this comment in opposition to the proposed rule, "Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure."

The rule would strip the Executive Office for Immigration Review (EOIR) of the ability to make a reasoned decision on a fully developed record and blocks people in immigration proceedings from mounting an effective appeal. Throughout the rule, the Department of Justice (DOJ) removes procedural protection after procedural protection, emphasizing a perceived need to speed appeals and prevent “gamesmanship.”

However, procedural protections—like adequate time to brief issues raised by opposing counsel, the ability for adjudicators to reopen cases in the interest of justice, and maintenance of impartiality—are key to ensuring both sides have a fair chance to be heard. What the DOJ refers to as gamesmanship is instead merely a normal, fair appeals process—meant to allow judges to pull out the relevant issues and facts, hear arguments, and decide what justice demands.

The proposed rule would make numerous changes to the process of appealing immigration court decisions, including:

• Greatly reducing the amount of time the Board of Immigration Appeals (BIA) is permitted to grant for briefing extensions and giving the EOIR Director unprecedented authority to issue decisions.
• Forbidding the BIA and immigration judges from managing their overwhelmed dockets by administratively closing cases.
• Hindering pro bono representation by limiting the ability to place cases and pro bono volunteers’ ability to effectively represent their clients.