The Trump administration will publish a notice in the Federal Register on Friday that will demolish the slow-moving process of deporting illegals. The proposed rule aims to streamline the current process and reduce the backlog of cases that has nearly brought the system to a screeching halt. That said, we know it faces an uphill fight as federal judges, acting without jurisdiction, will certainly declare the changes improper at some point.
The Federal Register notice titled RIN 1125-AB37, Appellate Procedures for the Board of Immigration Appeals, extensively overhauls the current process that could lead an immigration case to the Supreme Court.
The first part of the system seems to remain intact. An apprehended illegal is brought before an Article 2 Immigration Judge and given a hearing. The judge either lets them stay or tells them to go home. If ordered deported, a removal order is entered. As we're seeing from the cases popping in the news, it is not uncommon for an illegal apprehended today in Minneapolis, perhaps a contractor working for the Quality Learing Center, to have a removal order dating back two decades.
Breaking the logjam at the Board of Immigration Appeals is the target.
The filing lays out how Trump 1.0 tried to fix the problem.
Among other changes, the Appellate Procedures NPRM proposed: (1) simultaneous briefing schedules for both detained and non-detained appeals before the Board; (2) shortening the reply brief deadline; (3) limiting briefing extensions; (4) harmonizing the 90- and 180-day Board adjudication timelines to both start from when the record is complete; (5) limiting the Chief Appellate Immigration Judge’s ability to hold a group of cases while awaiting certain outside actions; and (6) removing the process for Immigration Judge review of proceeding transcripts.
How it was sandbagged by district judges.
The Appellate Procedures Final Rule’s effective date was January 15, 2021, but the rule was preliminarily enjoined on March 10, 2021, before its measures were implemented fully.
And how the Biden administration just ignored the issue.
The Department finalized that rule in May 2024. See Efficient Case and Docket Management in Immigration Proceedings, 89 FR 46742 (May 29, 2024) (“ECDM Final Rule”). As a result, the relevant regulatory provisions of the Appellate Procedures Final Rule that are further addressed in this IFR were rescinded, and the relevant regulatory text was generally returned to its pre-Appellate Procedures Final Rule baseline.
These are the big changes.
The new regulation will "change the deadline for filing an appeal with the Board from 30 to 10 days, except for cases involving certain asylum applications." This is not as trivial as it could appear. The current filing fee for the BIA is $1,030. There are provisions for filing "in forma pauperis." This requires jumping through more hoops to prove you are indigent. The illegal now has 10 days to find representation and prepare an appeal, as well as pony up money. Historically, claiming you are broke is a good way to get the next flight back home.
Once you appeal, there is no requirement that the BIA will hear the case. Rather, "the default will be summary dismissal unless a majority of current Board members vote to consider the appeal on the merits." There is an expedited hearing process that will "require simultaneous briefing within 20 days of the Board setting the schedule in all cases not summarily dismissed, with no reply briefs and limited extensions."
Plus, there are deadlines for the BIA: "the Board shall dispose of all cases assigned to a single Board member within 90 days of completion of the record, or within 180 days of completion of the record for all cases assigned to a three-member panel."
So an appeal is no longer a way to buy time before a final decision is rendered. The 10-day window makes it difficult prepare, and the BIA will focus on "selecting decisions for review that present novel issues warranting the Board’s attention." If you are lucky enough for your case to be heard by the BIA, it has no more than 180 days to render a judgment. There is still an appeal to a federal appeals court; however, this requires representation and a $600 filing fee.
The rule also strips powers from the Chief Immigration Judge that have historically been used to delay and defeat deportations: "two provisions that authorize the Chief Appellate Immigration Judge to either extend adjudication deadlines in particular cases or to hold cases based on a pending, potentially impactful action, either a new binding case decision or a new regulatory action." These two changes take away the ability to let cases become inactive through neglect or design.
For good measure, there is some trolling.
Finally, the Department is making changes to 8 CFR 1003.1, 1003.18, 1003.42, 1003.55, 1208.31, 1208.35, and 1240.26 to change the term “noncitizen” to “alien” and the term “unaccompanied child” or “unaccompanied children” to “unaccompanied alien child” or “unaccompanied alien children”, as appropriate, in accordance with EOIR’s efforts to conform to statutory terminology.
The new rule goes into effect on March 6.
When it goes into effect, we'll see every loony-left judge around the nation issuing injunctions, and then the court fight will start. I'm not an authority on federal administrative procedures, but this rule looks like the administration took the time to do it right. It lays out the authority for every rule change; provides an exhaustive history of how we got to this point; and justifies each action. So while we know it will come under attack-by-lawfare, there is good reason to believe this rule will survive.
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