Analysis of the Proposed BIA Regulations

On Wednesday, August 26, 2020 the Executive Office for Immigration Review (EOIR) released proposed changes to some of the regulations at 8 CFR Parts 1003 and 1240. For the most part, these proposed changes concern the Board of Immigration Appeals (BIA). They will significantly impact the way practitioners appeal and move to reopen or remand decisions from immigration court. As with the proposed regulatory changes for asylum we have seen recently, the government only gave 30 days to make comments on these new rules. Comments are due by Friday, September 25, 2020.

CILA has reviewed the proposed changes to the regulations in detail and thought about the impact this will have on your practice. You can find an outline of the changes, including cites to the regulations that are changing and our ideas as to how they will impact you and your clients, by clicking here.  We summarized some of the changes below to give you a feel of what the government is proposing:

  • BIA cannot consider new evidence on appeal and can no longer remand to the IJ to consider new evidence. There are 3 narrow exceptions to this rule, but generally it is going to have a massive impact on pro se respondents, who often can become our clients for appeal.
  • These proposed regulations codify Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). They disallow administrative closure by the IJ or the BIA. IJs and the BIA can no longer act sua sponte. This will severely limit the ability to re-open client’s cases.
  • The only options are those specifically laid out in the INA/CFR, which makes almost all motions to re-open time bound (maximum 90 days from when IJ renders decision) and limits the number of motions to re-open to one per case.
  • Changes to the timing of appeals and certain briefing practices:
    • Practitioners will now have only ~79 days from when the Immigration Judge (IJ) renders their decision to submit a complete brief to the BIA. There is a possibility of a 14-day extension, but only for good cause shown. Extensions will no longer be given as a matter of course.
    • Both parties’ briefs are due at the same time. This is good for the appellant, because opposing counsel will not be able to rebut the arguments made in their brief.

The changes listed above are only the ones CILA feels are the most extreme proposed changes to the regulations. As you can see in our outline, there are many more changes, each of which will have an impact on our practices. If you are able, we would encourage you to comment before the September 25 deadline. The ABA’s Commission on Immigration will be submitting comments on behalf of CILA and the ABA. CLINIC also has resources on the proposed regulations and a template comment to help you out.