Introduction

On August 26, 2019, the Executive Office for Immigration Review (EOIR) published an interim final rule in the Federal Register (FR) titled “Organization of the Executive Office for Immigration Review” [84 FR 44537 (Aug. 26, 2019)]. The interim final rule amends regulations relating to the internal organization of the EOIR to make the EOIR regulations consistent with a 2017 reorganization of the Department. Although the rule took effect on August 26, the EOIR is accepting public comments on the rule through October 25, 2019. In this post, we will examine the regulatory changes to the organization of the EOIR in the new rule.

Clarifying the Roles of the Office of Policy and the Office of the General Counsel

The EOIR established the Office of Policy in 2017. The purpose of the Office of Policy is to assist the Director of EOIR in carrying out his or her duties under 8 CFR 1003.0(b)(1). The EOIR notes that these duties include the authority to “issue operational instructions and policy, administratively coordinate with other agencies, and provide for training to promote quality and consistency in adjudications.”

In the new rule, the EOIR seeks to both clarify the duties of the Office of Policy and distinguish those duties from those of the Office of the General Counsel.

The EOIR explains that the Office of the General Counsel oversees many EOIR programs, “including those related to employee discipline, ethics, anti-fraud efforts, practitioner discipline, privacy, Freedom of Information Act requests, litigation support, and regulatory development and review.” The EOIR explains that the scope of many of the programs and duties under the Office of the General Counsel’s purview have expanded in recent years. Furthermore, some of the programs “involve a substantial policy role.” It is for these reasons that the EOIR has opted, in its new rule, to transfer some of the responsibilities of the Office of the General Counsel to the new Office of Policy.

The EOIR explains that the General Counsel works under the supervision of the EOIR Director. The General Counsel is the chief legal counsel of EOIR on all matters of immigration law under 8 CFR 1003.0(e). The current regulation provides that the General Counsel cannot advise on particular cases. The EOIR took the position that the wording of the regulation “has created confusion as many activities that [the Office of the General Counsel] currently performs-ranging from advice on the discipline of immigration judges to advice on policy-may relate directly or indirectly to the adjudication of specific cases, creating tension with the existing regulation.”

The EOIR seeks to clarify the role of the General Counsel in its new rule. The new regulation providing for the General Counsel’s duties is found at 8 CFR 1003.0(f). The rule reaffirms that the General Counsel, subject to the supervision of the Director of EOIR, remains the chief legal counsel and supervisor of legal activities relating to specific categories of issues. It also holds that the General Counsel may not influence the adjudication of specific cases under the INA. The new rule goes further, prohibiting the General Counsel from acting as an advisor on disciplinary matters relating to the adjudication of cases under the INA. The General Counsel will retain the authority to advise on matters relating to immigration law, so long as such advice does not direct or influence specific adjudications under the INA. In short, the General Counsel will advise the Director, Deputy Director, and other EOIR component heads on matters relating to the INA and other administrative issues generally, but the General Counsel may not direct or influence the adjudication of any individual cases.

The Office of Policy’s authorities are outlined in the new 8 CFR 1003.0(e). The Office of Policy is, like the General Counsel, subject to the supervision of the EOIR Director. The regulation provides that the Office of Policy will advise on matters relating to policy. In so doing, the Office of Policy will oversee the EOIR’s regulatory development, taking that duty over from the Office of the General Counsel. The Office of Policy will also oversee the development of policy guidance, supervise and administer EOIR’s pro bono and legal organization programs, and supervise legal and policy training of all EOIR components.

The Office of Policy will not have the authority to adjudicate cases under the INA or its implementing regulations with one important exception, set forth in 8 CFR 1003.0(e)(3). We discuss that exception below in the next section of this article.

Folding the Office of Legal Access Programs into the Office of Policy

The Office of Legal Access Programs was responsible for administering a program to recognize organizations and accredit representatives who provide representation in proceedings before EOIR components. Its structure was formalized in 2017, placing it dircectly under the EOIR Director. The EOIR explains in the new rule that the Office of Legal Access Programs has been transferred among EOIR components since 2000, and that no justification was provided in a series of proposed and final rules from 2015 to 2017 for why it should be an office reporting directly to the EOIR Director.

The interim rule now folds the Office of Legal Access Programs into the Office of Policy, discussed above. As a result, the regulations remove all references to the Office of Legal Access Programs. The only effect of the change is that, as a component of the Office of Policies, the former Office of Legal Access Programs will no longer report directly to the Director of EOIR. It will instead be a part of the Office of Policy, which reports directly to the Director of EOIR.

Although the regulations state that the Office of Policy does not have the authority to adjudicate individual cases, there is one exception to this rule. Under 8 CFR 1003.0(e)(3), the Office of Policy has authority to adjudicate cases and issue precedential decisions under the accreditation program, taking this authority over from the Board of Immigration Appeals (BIA). We discussed the EOIR’s regulations providing for the publication of precedential decisions in this area in a separate article [see section].

In one related change, the new regulations clarify that the Director of EOIR does not have the authority to adjudicate requests to review certain reconsideration decisions of the Office of Policy relating to accreditation, unless the Director is otherwise authorized by regulation or has been delegated the authority by the Attorney General. This is merely a technical change to correct an oversight from the 2017 final rule, discussed above. This is codified at 8 CFR 1003.0(c).

Technical Changes to the Regulations

The Department of Justice (DOJ) is amending its regulations regarding the EOIR to ensure uniformity between title 8 and title 28, both of which contain regulations concerning the structure of the EOIR.

Members of the Board of Immigration Appeals to be Known as “Appellate Immigration Judges”

The new rule provides that members of the BIA will also be known as “Appellate Immigration Judges.” This new regulation is codified at 8 CFR 1003.1(a)(1). 8 CFR 1003.1(a)(2) provides that the Chairman of the Board will also be known as the Chief Appellate Immigration Judge, and the Vice Chairman will be known as the “Deputy Chief Appellate Immigration Judge.” Under 8 CFR 1003.1(a)(4), Temporary Board members will also be known as “temporary Appellate Immigration Judges.”

Efficient Disposition of Cases on Appeal Before the Board

The regulations provide for a BIA case management system in 8 CFR 1003.1(e). In general, as provided by 8 CFR 1003.1(e)(8)(i), cases assigned to a single member of the BIA must be adjudicated within 90 days of the completion of the record, whereas cases assigned to three-member panels must be decided within 180 days after the assignment. Under the existing rules, the Chairman of the BIA was required to either assign overdue cases to himself or herself or the Vice Chairman, or to refer them to the Attorney General for adjudication within 14 days under 8 CFR 1003.1(e)(8)(ii).

The EOIR found that the provision providing for referral to the Attorney General for case-management purposes was flawed. Firstly, the EOIR explains that the Attorney General is not in a position to adjudicate cases because the BIA was unable to adjudicate them in a timely manner. Secondly, the EOIR explains that the concept that the Chairman of the BIA, under supervision of the Director of EOIR, could refer cases directly to the Attorney General for case management purposes was flawed.

In one of the most consequential changes in the new rule, the new 8 CFR 1003.1(e)(8)(ii) provides that in the event of an overdue BIA case, the Chairman of the Board shall either assign the case to himselfor the Vice Chairman or refer the case to the Director of EOIR for a decision within 14 days. If the case is referred to the Director, the Director will be able to exercise delegated authority from the Attorney General identical to that of the BIA to decide the case and, if necessary, issue a precedent decision. The Director may, in the exercise of discretion, refer the case to the Attorney General if such referral is justified. The Chairman of the Board will no longer be able to refer cases directly to the Attorney General for case-management reasons.

Conclusion

The new interim final rule proposes significant changes to the internal structure of EOIR. The change with the most potential practical export is the delegation of authority to the Director of EOIR to adjudicate overdue appeals pending before the BIA and, if necessary, issue a precedential decision. It remains to be seen how this change and some of the other changes may affect the functioning of the EOIR going forward. Although the rule may be modified after the EOIR considers public comments, a subsequent final rule will likely be substantially similar to the interim rule.