On August 26, 2019, the Department of Justice (DOJ) published an interim rule, with request for comment, to amend the regulations organizing the Executive Office for Immigration Review (EOIR). Those regulations would give the director of EOIR the authority to adjudicate appeals to the Board of Immigration Appeals (BIA), specifically state that the agency's Office of the General Counsel (OGC) may not influence or direct adjudications under the Immigration and Nationality Act (INA), and give power (and legitimacy) to EOIR's Office of Policy.
Under current regulations, if an alien respondent seeks to appeal an immigration judge's decision, that respondent may file an appeal with the BIA. Appeals are screened under a case-management system established by the BIA chairman. Those cases are then assigned to a single BIA member for adjudication, except in the following six circumstances:
The need to settle inconsistencies among the rulings of different immigration judges;
The need to establish a precedent construing the meaning of laws, regulations, or procedures;
The need to review a decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents;
The need to resolve a case or controversy of major national import;
The need to review a clearly erroneous factual determination by an immigration judge; or
The need to reverse the decision of an immigration judge or the Service, other than a reversal [that "is plainly consistent with and required by intervening Board or judicial precedent, by an intervening Act of Congress, or by an intervening final regulation."]
In those six circumstances, the case is assigned to a three-member BIA panel.
Appeals are supposed to be adjudicated in a timely manner. Specifically, appeals assigned to a single BIA member are expected to be completed within 90 days after briefs and motions are filed, or within 180 days of assignment to a three-member panel. The chairman may also grant a 60-day extension of these deadlines where there are "exigent circumstances".
With extremely limited exceptions, however, if a decision cannot be issued within these time frames, as extended, the chairman may assign the case to himself or herself or to the vice chairman of the BIA for a decision within 14 days, or may refer the case to the attorney general (AG) for decision.
This latter option does not make much sense. If three judges of the BIA cannot make a decision on a case in the better part of a year, it obviously contains some difficult issues. That said, going to the extreme step of punting the case to the AG would seem to be a waste of his time. As the interim rule notes: "Due to his numerous other responsibilities and obligations, the Attorney General is not in a position to adjudicate any BIA appeal simply because it has exceeded its time limit for adjudication."
Further, it is operationally anomalous for the Chairman, who is under the supervision of the Director, to be able to directly refer a case to the Attorney General based solely on a workload management issue, rather than on the underlying merits of the case. As the supervisor of the Chairman and already possessing the authority to ensure that adjudications are conducted in a timely manner ... the Director is in a better position to address cases that cannot be completed in a timely fashion by the BIA.
The proposed regulation therefore delegates the authority to the director of EOIR to adjudicate appeals that have not been completed in accordance with the deadlines set in the regulations, "based on a referral from the Chairman". The chairman retains the authority to issue his or her own decision, or to assign it to the vice chairman. The director can also refer the case to the AG, and the AG retains the authority to direct that a decision be referred to him.
The proposed regulation also makes clear that while OGC can advise the director or the director's deputy "on other legal matters, including matters related to immigration law or policy and related to adjudicator discipline", OGC lacks "authority, directly or indirectly, to direct or influence the adjudication of any cases under the" INA.
OGC serves as the lawyer to the director, the BIA chairman, the chief immigration judge, and the chief administrative hearing officer (CAHO, who has jurisdiction over worksite enforcement matters, cases under the INA involving discrimination based on national origin or citizenship status, and civil document fraud) on matters of immigration law. As the rule notes:
The current regulation does not exclude advising on issues related to the general adjudication of immigration cases, although it does provide that the General Counsel shall not supervise legal activities related to specific adjudications. ... This delineation of the General Counsel's responsibilities has created confusion as many activities that OGC currently performs — ranging from advice on the discipline of immigration judges to advice regarding litigation positions to advice on policy — may relate directly or indirectly to the adjudication of specific cases, creating tension with the existing regulation. For example, as the chief legal counsel for EOIR, including its adjudicatory components, the General Counsel may take a position on immigration law through the complaint process involving an adjudicator's decision that is arguably neither the best nor only view of the law, leaving EOIR's adjudicators uncertain as to whose view to follow in order to adjudicate cases without risk of potential discipline or corrective action. [Emphasis added.]
The proposed regulation would clear up this confusion, and make it clear that adjudicators adjudicate and OGC advises. The final responsibility for adjudicating cases, therefore, rests solely with those individuals who must sign the decisions.
That regulation, as proposed, would also delineate between functions performed by OGC and by the Office of Policy, which was created in 2017. The current regulations state that the director has the "authority to ... [i]ssue operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities." As the EOIR website describes the duties of the Office of Policy:
The Office of Policy is responsible for all agency policy and regulatory review and development, internal and external communications, official data collection and reporting, strategic planning, and legal education, research, and certifications. The Office strives to maintain open communication among components through the efforts of the staff of the following divisions:
Communications and Legislative Affairs Division [CLAD]
Immigration Law Division [ILD]
Legal Education and Research Services Division [LERS]
The ILD "is responsible for drafting regulations in consultation with OGC, coordinating legal policy development and drafting policy memoranda as necessary, and coordinating the review of proposed legislation." LERS "develops and coordinates headquarters and nationwide substantive legal training and professional development for new and experienced judges, attorneys, and others within EOIR who are directly involved in EOIR's adjudicative functions." CLAD does pretty much what its name suggests.
The Office of Policy does not currently appear on the EOIR organizational chart, and is not in the current regulation organizing EOIR. The proposed regulation would codify that office in regulation. It also would transfer certain programs that are currently under OGC, such as such as the agency's "regulatory development and implementation process", which, as the rule suggests, "involve a substantial policy role".
Finally, in an action that is likely only of interest to BIA members, the rule changes their title to "appellate immigration judges". Oddly, the rule states: "The Department has previously considered changing the title of Board members to 'Appellate Immigration Judges' by regulation, but elected not to because of possible confusion by the public with federal appellate judges appointed under Article III of the Constitution." Talk about over-thinking a problem. BIA members currently wear robes when hearing appeals and are entitled to the prenominal "The Honorable", so this truly is a minor change.
The immigration judges' union (yes, there is one, and yes, I was a member when I was an immigration judge) decried aspects of the proposed regulation in a statement by Immigration Judge Ashley Tabaddor, the union's president:
"By collapsing the policymaking role with the adjudication role into a single individual, the Director of EOIR, an unconfirmed political appointee, the Immigration Court system has effectively been dismantled," said Ashley Tabaddor, President of the National Association of Immigration Judges.
The new rule is a wolf in sheep's clothing. While couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators. The creation of a mini-Attorney General in the EOIR's Director, who is a political appointee, not confirmed by the Senate and currently not empowered to adjudicate cases, will in effect abolish the separation of functions where the Attorney General's duties as a law enforcement agent are distinct and separate from his adjudicatory duties. The unprecedented creation of an Office of Policy within EOIR under the Director's authority, designed to formulate, coordinate, and implement the executive branch's immigration law enforcement policies combined with the Director's new direct adjudicatory role over individual cases, removes any semblance of an independent, non-political court system which ensures due process rather than political expediency.
With due respect to my former colleague (whom I know personally and for whom I have a great deal of respect), this rhetoric is overblown, and at least in one significant aspect, wrong. First, the EOIR director has no law-enforcement duties.
Second, by statute, the AG (the nation's highest law-enforcement officer) does have significant policy authority over immigration. Specifically, section 103(a)(1) of the INA makes clear "that determination and ruling by the [AG] with respect to all questions of law shall be controlling." This gives the AG the power to shape immigration policy by issuing binding precedent. While under the rule the Office of Policy "in coordination with other components as appropriate ... shall also oversee EOIR's regulatory development and implementation process," the director already has that authority, and can delegate it as he or she sees fit.
Third, the AG, subject to only limitations placed on him by Congress, also has the authority to delegate his adjudicatory powers. That was how immigration judges originally received the authority to issue decisions at all, and is the source of authority for the BIA. Delegation of that authority in rare cases where the BIA fails to rule in a timely manner, and only after referral by the BIA chairman, to the EOIR director is unexceptional.
Finally, Judge Tabaddor is in error with respect to the status of the EOIR director. Law360 reported:
The EOIR director is appointed by the U.S. Attorney General, the head of the Justice Department, and, according to the Office of Government Ethics, a political appointee is "any employee who is appointed by the President, the Vice President, or agency head."
"[T]he Director is not a political appointee, but rather a career employee who is selected on merit – just like any other immigration judge or board member," [DOJ spokeperson Sarah Sutton] said. "It is evident from the text of the regulation that these changes do not interfere with the core functions of the Board of Immigration Appeals."
Of course, the AG is a political appointee, and his authority to make decisions in removal proceedings by certification is rather unexceptional.
Comments on the interim rule are due on or before October 25, 2019.