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Board of Immigration Appeals Expands from 17 Members to 21

Introduction

On February 27, 2018, the Executive Office for Immigration Review (EOIR) published a new final rule in the Federal Register (FR) at 83 FR 8321 titled “Expanding the Size of the Board of Immigration Appeals” [PDF version]. The new rule will mend 8 C.F.R. 1003.1 to expand the size of the Board of Immigration Appeals (BIA) from 17 to 21. In this article, we will briefly examine the background of the expansion and what it means going forward.

Background

The number of BIA members is set forth in 8 C.F.R. 1003.1. Prior to June 3, 2015, the regulation stated that the Board shall have 15 members. However, on June 3, 2015, the EOIR published an interim rule at 80 FR 31461 expanding the Board from 15 members to 17 members [PDF version]. The interim rule also solicited public comment on whether it should add more positions to the BIA beyond the two additional Board members provided for by the interim rule.

The EOIR published the 2015 interim rule due to the Board’s expanding case-load. To handle the increasing number of cases pending before the immigration courts, the EOIR had emphasized hiring new immigration judges, adding a total of 64 to the bench in Fiscal Year 2017 [see article]. Because the Board is an appellate body, its workload will generally increase along with that of the immigration courts because the Board reviews decisions of the immigration courts. The final rule explains that the EOIR “expects that, as these additional immigration judges enter on duty, the number of decisions rendered by the immigration judges nationwide will increase, and the number of appeals filed with the Board will increase as a result.” The final rule cites to evidence for this proposition: “For example, the number of appeals [before the BIA] increased throughout FY 2017, from 2,618 in October 2016 to 3,035 in September 2017.” The EOIR took the position that this increasing case-load could become overwhelming for a BIA consisting of only 17 members.

After issuing the interim rule in 2015, the EOIR considered whether it should add additional appellate judges beyond the 17 provided for in 2015 to provide for the expeditious handling of appeals before the Board. However, the EOIR sought to accomplish this while “[k]eeping in mind the goal of maintaining cohesion and the ability to reach consensus…” This concern reflects that the Board requires a majority of all of its members to issue a precedential decision, which constitutes binding guidance to immigration judges and other agencies nationwide. Ultimately, the EOIR determined that the logic behind the interim rule now “supports increasing the size of the Board in the final rule to 21.”

Regulatory Change and Effect

The final rule amends 8 C.F.R. 1003.1 to read: “The Board shall consist of 21 members.” The rule will take effect immediately.

Conclusion

The increase in the size of the BIA from 17 to 21 is designed to allow the Board of Immigration Appeals to more expeditiously handle appeals from growing number of immigration court decisions. The rule cites to both the increasing number of pending cases before the immigration courts and the influx of new immigration judges to begin working through the backlog as factors that may increase the Board’s workload. It remains to be seen whether the increases in the size of both the immigration bench and the BIA will have a significant effect on the backlog of cases before the immigration courts and on appeals before the Board. We will continue to monitor the situation over the coming weeks and months.

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