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As “of counsel” and on behalf of Solow, Isbell & Palladino, LLC (SIP), welcome to another blog exploring issues impacting the Immigration Courts. In this blog, I will highlight some of the most important portions of the latest proposed regulation that is yet another assault on immigrants and the political independence of the BIA and IJs. PLUS, BONUS POLICY ALERTS: Philadelphia Immigration Court remains open with backlogs mounting and future scheduling undisclosed; work permit rules eased in light of printing delays; USCIS furloughs averted at the 11th hour, but at what cost; USCIS implements DHS guidance on DACA and rejects all initial applications in defiance of Supreme Court ruling.

On August 26, 2020, DOJ/EOIR published a comprehensive 88-page proposed regulation that dramatically alters much of the administrative appellate process, impacting IJs as well. Under the guise of merely speeding up appeals, the proposal is so much more.

It is an assault on and a warning to circuit courts that have dared to defy the Attorney General (AG) by validating the authority of the BIA and IJs to administratively close cases (either unilaterally or with the consent of the parties) and generally manage their dockets. With a stroke of a pen, DOJ would simply amend the regulations within which the 4th and 7th circuits found the source of the aforementioned authority. 

Moreover, the proposal would clarify that under those regulations, the AG is withdrawing, with limited exceptions, the delegation of his authority for the BIA to sua sponte reopen or reconsider decisions and for the BIA to certify cases to itself on its own motion. Moreover, the proposal also withdraws the delegation of the AG’s authority for IJs to reopen or reconsider decisions sua sponte, subject to a limited exception. 

Next, the proposal would allow IJs to certify BIA decisions reopening or remanding proceedings for further review by the EOIR Director (a politically appointed manager) in situations in which the IJ alleges that the BIA made an error. The proposal asserts that it is too cumbersome and time-consuming to rely on the current legal process through subsequent motions by the parties. So instead the proposal suggests that the process default to the politically motivated Director. 

To make matters worse and even more subject to the political winds, once an appeal has been pending for 335 days (which will occur much more frequently than the regulation suggests), all such appeals are to be referred to the EOIR Director for adjudication. This opening for default decision-making by the politicized Director, who is not a “judge” in any sense, all supposedly in the name of speed and timeliness, is both inappropriate even for a quasi-judicial process and is ripe for abuse. The Director will be a panel of one, just like the AG in cases he has certified to himself. Will the Director be able to designate any of his adjudicated cases as precedents? This is just a bad policy that is designed over time to further shape the ideological direction of decision-making by both IJs and the BIA.

Moreover, this aspect of these new regulations is undoubtedly driven by forces from above with origins within the Stephen Miller core of political advisers.

An additional change proposed by this regulation would, in most cases, establish a standardized simultaneous briefing schedule of 21 days with extensions of 14 days possible. Of course, this means that neither party will have an opportunity  to review and respond to each other’s arguments.

The proposal would also end the BIA practice of remanding solely for background checks or because the IJ did not provide proper voluntary departure advisals. The BIA would now be authorized to issue dispositive decisions, including decisions on voluntary departure. But the proposal would also limit the BIA’s authority to consider new evidence on appeal or to grant motions to remand for consideration of new evidence, except in cases where there is new evidence or information obtained as a result of identity, law enforcement, or security investigations or examinations or where the new information raises a question of jurisdiction or removability.

The proposal further instructs that the BIA may affirm a decision based on any reason contained in the record and clarifies that there is no “totality of the circumstances” standard of review.

Reversing years of well-settled law, the proposed regulation further “clarifies” that the BIA may limit or qualify the scope of a remand while simultaneously divesting itself of jurisdiction over the case. Thus, for example, if the BIA were to “limit” the scope of a remand for further proceedings relative to a particular relief application and the respondent became eligible to seek alternative relief (for example, as a result of a bona fide marriage to a U.S. citizen), that would not be possible under the new regulation absent a subsequent modified order from the BIA.

While these and other portions of this massive rewrite of BIA appellate procedure are purportedly designed with speed and efficiency in mind, their overall intent is clearly to restrict and reduce immigration benefits under the watchful eye of both the AG and his chief surrogate within EOIR management, namely the Director. Likewise, it is a political strategy that is perfectly willing to amend or withdraw regulations should federal circuit courts interpret them in a manner that expands the authority of IJs or the BIA.

Following on the heels proposed asylum and public health/national security regulations, written or electronic comments must be submitted within a 30-day window on or before September 25, 2020.

BONUS POLICY ALERTS:

The Philadelphia Immigration Court remains open with backlogs mounting and future scheduling undisclosed. As reported previously, five of the six IJs are hearing individual cases one week and then are authorized for telework during alternate weeks. One IJ is apparently not opting for the telework week and one is working just half days during work weeks. As of now, there is no open communication about future planning including when master calendars will resume and in what format. Meanwhile, thousands of cases have been postponed since the pandemic began and more cases are being added to the dockets each week.

Work permit rules are being eased in light of printing delays. In an effort to end a proposed class action challenging delays in work permit card printing, U.S.C.I.S. announced that individuals with approval notices received between December 2019 and August 20, 2020, may start working. The government indicated that it was relaxing the requirement that employers verify the actual employment authorization documents due to the “extraordinary and unprecedented COVID-19 public health emergency.” This temporarily eased requirement will help individuals in a number of circumstances, including those in removal proceedings.

USCIS furloughs have been averted at the 11th hour, but at what cost? On August 25, 2020, the agency announced that the intended furlough of more than 13,000 employees, scheduled to begin on August 30, 2020, will not occur as a result of unprecedented spending cuts and a steady increase in daily incoming revenue and receipts. While the agency states that it now expects to be able to maintain operations through the end of the 2020 fiscal year, it also notes that it has had to impose aggressive spending reduction measures impacting all agency operations, including naturalizations, aliens adjusting status, and case processing times generally. Previously, members of Congress had requested that agency leadership avoid operational cuts of this magnitude. Many, including this writer, suspect foul play, particularly with respect to naturalizations, in advance of the upcoming presidential election.

U.S.C.I.S. implements DHS guidance on DACA and rejects all initial applications in defiance of the Supreme Court ruling. The agency announced its implementing guidance on August 24, 2020, and indicated that the rejections would be without prejudice should the policy change in the future (renewal requests, including employment authorization, will be granted for just one year and advance parole for travel outside the U.S. will only be granted for urgent humanitarian reasons or significant public benefit). In its announcement, the agency did not discuss how it was reconciling its position with that of Chief Justice Roberts’ decision which concluded, at least for now, that the program would remain intact as it was originally formulated. While the administration could initiate efforts to end DACA in a manner that could conceivably withstand Supreme Court scrutiny, in the meantime, it seems to this writer that the rejection of all initial DACA applications is in violation of both the letter and spirit of the Supreme Court’s decision. 

Thank you for taking the time to consider the important issues and information discussed in this submission.