Introduction

On July 2, 2019, Attorney General William Barr published a final rule to the Federal Register (FR), affecting the U.S Department of Justice’s (DOJ’s) Executive Office for Immigration Review (EOIR), titled “Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents” [84 FR 31463 (Jul. 2, 2019)]. The rule is the final version of a proposed rule which was published to the Federal Register in 2008. The new final rule was modified from the 2008 proposed rule.

The final rule addresses several points regarding immigration proceedings. The final rule clarifies and codifies the DOJ’s position on BIA affirmances of immigration judge decisions without opinion, making clear that they are not intended to create any substantive right to a particular manner of review of a decision. The final rule clarifies that the BIA is presumed to have considered all of the relevant issues and claims of error on appeal regardless of the form of opinion, notably including when the BIA issues an affirmance without opinion. It restates the obligation of the parties to exhaust claims of error before the BIA. The final rule codifies standards for the BIA’s deciding whether to designate a decision as precedential, but ultimately does not adopt some of the changes proposed in 2008. Finally, the final rule clarifies policies regarding precedent decisions of the EOIR regarding the recognition of organizations and the designation of accredited representatives.

In this article, we will examine each aspect of these important new rules for immigration review. We discuss more issues pertinent to immigration appeals in our growing selection of articles on the subject [see category].

Background of the New Final Rule

The Final Rule details the regulatory actions which led to it.

On October 18, 1999, the DOJ published a final rule authorizing a single BIA member to affirm the decision of an immigration judge by a summary written order without issuing a separate written opinion at 64 FR 56135 (Oct. 18, 1999) [PDF version]. The “written order” is now known as “affirmance without opinion.”

On August 26, 2002, the DOJ published a final rule mandating the use of an affirmance without opinion in cases that met certain regulatory criteria at 67 FR 54878 (Aug. 26, 2002) [PDF version]. The 2002 rule required affirmance without opinion in cases in which the reviewing BIA member concludes that the result in the immigration judge’s decision under review was correct, any errors were “harmless or nonmaterial,” and that either the issues on appeal were “squarely controlled” by existing precedent and did not present a novel factual scenario requiring a decision or were not substantial such as to warrant a written opinion.

On January 9, 2006, then-Attorney General Alberto Gonzales directed a comprehensive review of the immigration courts and the BIA in response to concerns about the quality of decisions and the behavior of certain immigration judges. On August 9, 2006, then-Attorney General Gonzales announced the competition of the review. He directed the EOIR to implement

On June 18, 2008, the DOJ published a proposed rule with the same name as the new final rule at 73 FR 34654 (June 18, 2008) [PDF version]. The DOJ received public comments on the rule through August 18, 2008. The proposed rule did not reopen the 2002 rule on affirmation without opinion. The proposed rule, instead, proposed encouraging the use of single-member decisions instead of affirmation without opinion in order to address poor or intemperate immigration judge decisions, allowing the use of three-member written decisions for providing legal analysis in complex cases, and authorizing three-member panels to designate their decisions as precedential by a majority vote.

Amended Regulations and Comments

The new rule substantially revises three regulatory provisions dealing with the EOIR. In the forthcoming subsections, we will examine both the new regulations and the discussion of the new regulations in the final rule.

Form of Board Decision

The final rule promulgates a new regulation at 8 C.F.R. 1003.1(e)(9). The new provision reads as follows:

(9) The provisions of paragraphs (e)(4)(i) and (e)(5) and (6) of this section are internal agency directives for the purpose of efficient management and disposition of cases pending before the Board and are not intended to create any substantive or procedural rights to a particular form of Board decision. A decision by the Board under paragraph (e)(4), (5), or (6) of this section carries the presumption that the Board properly and thoroughly considered all issues, arguments, and claims raised or presented by the parties on appeal or in a motion that were deemed appropriate to the disposition of the appeal or motion, whether or not specifically mentioned in the decision. A decision by the Board under paragraph (e)(4), (5), or (6) also carries the presumption that the Board did not need to consider any issue, argument, or claim not raised or presented by the parties on appeal or in a motion to the Board. In any decision under paragraph (e)(5) or (6) of this section, the Board may rule, in the exercise of its discretion as provided under this part, on any issue, argument, or claim not raised by the parties, and the Board may solicit supplemental briefing from the parties on the issues to be considered before rendering a decision.

The regulation references 8 C.F.R. 1003.1(e)(4), (5), and (6). Each of these three provisions refers to a different form of BIA decision. 8 C.F.R. 1003.1(e)(4) describes affirmance without opinion, 1003.1(e)(5) describes single-member decisions, and 1003.1(e)(6) describes three-member panel decisions.

The Federal Register notice includes a detailed explanation of the process which led to 8 C.F.R. 1003.1(e)(9).

The Attorney General noted that commenters on the 2008 proposed rule had expressed concern that some courts had construed the 2002 streamlining regulations as creating an additional layer of judicial review — that is, of the Board’s form of decision itself. Other commenters expressed concern that the language in the proposed rule endeavored to impermissibly eliminate an alien’s right to review a single Board member’s decision to issue an affirmance without opinion.

The 2002 rule took the position that there is no statutory right to a particular form of decision. The Board explained that subsequent to 2002, every circuit court to have considered the issue has held that an alien does not have a right to one form of decision over another.

The Attorney General stated that the wording in the final sets forth “the Department’s position as it has existed since the establishment of the streamlining process and to clarify that the rules governing [8 C.F.R. 1003.1(e)(4) through (6)] are internal agency rules designed to assist the BIA in efficiently managing its caseload and carrying out its duties.” In so doing, the Attorney General made clear that the streamlining procedures and rules mandating affirmance without opinion under certain circumstances are not designed to create an additional layer of judicial rule or any substantive right to review the particular form of the BIA decision.

The language of the regulation also addressed concerns from commenters that administrative efficiency should have no bearing on the form of a decision in a particular case — that is, the overall resources of the BIA should not inform its decision to issue an affirmance without opinion. The Attorney General rejected these concerns, noting that it has internal procedures for reviewing every case and determining which cases meet the regulatory criteria for affirmance without opinion. The new regulation makes the EOIR’s position clear — any decision by the Board “carries the presumption that the Board properly and thoroughly considered all issues, arguments, and claims raised or presented by the parties on appeal or in a motion that were deemed appropriate to the disposition of the appeal or motion, whether or not specifically mentioned in the decision.” In addition to attempting to strengthen the position that the form of a Board decision is not subject to review, the regulation also takes the position that Board reviews the pertinent issues when issuing affirmance without opinion to the same extent that it does when issuing a written decision.

The Attorney General rejected concerns that the regulation improperly curtails judicial review generally. It noted that if a court has particular issues with a decision to affirm without opinion, it may remand under traditional principles — such as when it is unable to determine whether it has jurisdiction or when it is unsure whether the decision on a question was reserved for appeal. Thus, the EOIR’s position is that while the decision to issue an affirmance without opinion in lieu of a written decision is not reviewable in and of itself, an affirmance without opinion is otherwise reviewable in the same way that any other Board decision is. Courts may remand to the BIA for clarification of the issues underlying a decision — written or unwritten — under traditional principles.

The new 8 C.F.R. 1003.1(e)(9) also states that the Board may, in its discretion in accord with the regulations, rule on issues not raised by the parties as necessary to resolve a case. In so doing, the Board may request supplemental briefing. In explaining the rule, the Attorney General made clear that this language is only intended to allow the BIA to resolve the issues before it thoroughly and is not intended to modify the parties’ obligation to exhaust or to give the Board fact-finding authority. It does not modify the precedent that the Board will not consider issues raised for the first time on appeal [see article].

The Attorney General opted to not use language included in the proposed rule stating that parties had an obligation to “rais[e] in a meaningful manner all issues and claims of error in the first instance on appeal to the Board…” While parties do have an obligation to raise all claims before the Board, the Attorney General excluded the “meaningful manner” language as to not establish a “novel” standard for presenting claims before the BIA.

Criteria for Three-Member Panel Decisions

The rule added one criterion to the criteria for three-member panel decisions by the BIA. Below, we will reproduce all the criteria with the new criterion emphasized:

  • “8 C.F.R. 1003.1(e)(6) Panel decisions. Cases may only be assigned for review by a three member panel of the case presents one of these circumstances:
    • (i) The need to settle inconsistencies among immigration judges;
    • (ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures;
    • (iii) 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;
    • (iv) The need to resolve a case or controversy of major national import;
    • (v) The need to review a clearly erroneous factual determination by an immigration judge;
    • (vi) The need to reverse the decision of an immigration judge or the Service, other than a reversal under [section] 1003.1(e)(5); or
    • (vii) The need to resolve a complex, novel, unusual, or recurring issue of law and fact.”
    • (Emphasis added.)

The initial proposed rule suggested providing single Board members with the discretion to refer a case for review by a three member panel of it presented a “complex, novel, or unusual issue of law or fact.” In the final rule, the Board added “or recurring issue of law and fact.” The Attorney General explained that the Board is in the best position to identify issues that recur nationwide. It recognized that such recurring issues may not result in inconsistent decisions among immigration judges or involve an issue of major national import — covered by 8 C.F.R. 1003.1(e)(1) and (6) respectively — but may nevertheless benefit from review by a three-member panel of the Board.

Publication of Precedential Decisions

The Attorney General codified its rules for designating decisions as precedents, and modified the rules from the 2008 proposal. The following are the new regulations for publication of decisions as precedent, found at 8 C.F.R. 1003.1(g):

  • “(g) Decisions as precedents-(1) In general. Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board and decisions of the Attorney General are binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States.
  • (2) Precedent decisions. Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretary of Homeland Security as provided in paragraph (h)(2)(i) of this section will be published and serve as precedents in all proceedings involving the same issue or issues.
  • (3) Designation of precedents. By majority vote of the permanent Board members, or as directed by the Attorney General or his designee, selected decisions of the Board issued by a three-member panel or by the Board en banc may be designated to be published and to serve as precedents in all proceedings involving the same issue or issues. In determining whether to publish a precedent decision, the Board may take into account relevant considerations, in the exercise of discretion, including among other matters:
    • (i) Whether the case involves a substantial issue of first impression;
    • (ii) Whether the case involves a legal, factual, procedural, or discretionary issue that can be expected to arise frequently in immigration cases;
    • (iii) Whether the issuance of a precedent decision is needed because the decision announces a new rule of law, or modifies, clarifies, or distinguishes a rule of law or prior precedent;
    • (iv) Whether the case involves a conflict in decisions by immigration judges, the Board, or the federal courts;
    • (v) Whether there is a need to achieve, maintain, or restore national uniformity of interpretation of issues under the immigration laws and regulations; and
    • (iv) Whether the case warrants publication in light of other factors that gave it general public interest.”

The initial 2008 proposed rule would have given three member panels of the Board the authority to designate decisions as precedent by majority vote. The Attorney General ultimately eschewed that proposal, finding it unnecessary in light of the fact that the Board now issues an adequate number of precedents every year. Accordingly, the decision whether to publish a decision as precedent will continue to be made by a majority vote of all of the permanent members of the Board.

The rest of the new 8 C.F.R. 1003.1(g) was published as proposed in 2008, with one addition. The final rule adds to the criteria for publication cases in which a decision of a three-member panel distinguishes a rule of law or prior precedent.

Review of Decisions Involving Recognition and Accreditation

In 2008, the BIA was responsible for administering the EOIR’s recognition and accreditation program. As such, the Board could designate its decisions involving recognition and accreditation as precedent under its general authority to issue precedent decisions. In 2017, responsibility for administering the EOIR’s recognition and accreditation program was transferred from the BIA to the Office of Legal Access Programs (OLAP). In transferring this authority, the EOIR inadvertently failed to provide a mechanism for the publication of OLAP decisions on the recognition and accreditation program as precedent. To correct the oversight, the final rule includes a mechanism for the referral of OLAP decisions on accreditation and recognition to the Attorney General for publication. The new regulations are found at 8 C.F.R. 1292.18, and reproduced below:

“(c) Referral of cases to the Attorney General. The Director will refer to the Attorney General for review of decisions pursuant to this section in all cases that the Attorney General directs the Director to refer to him or that the Director believes should be referred to him.
(d) Decisions as precedents. The Director, in his discretion, may cause reconsideration decisions by the OLAP Director pursuant to § 1292.13(e), § 1292.16(f), or § 1292.17(d), or decisions by the Director pursuant to this section to be published as precedents in the same manner as decisions of the Board and the Attorney General. Such decisions by the OLAP Director, except as overruled by the Director, and such decisions by the Director, except as overruled by the Attorney General, will serve as precedents in all proceedings under part 1292 involving the same issue or issues.”

In short, this addition ensures that in appropriate cases, decisions on recognition and accreditation to represent aliens in immigration proceedings can be designated as precedent.

Conclusion

The most important provisions of the new final rule concern affirmances without opinion. While the underlying policy regarding affirmance without opinion remains unchanged, the DOJ sought to clarify its position that there is no independent ground for review of the Board’s decision to issue one type of decision in lieu of another. To accomplish this, the Board clarified that its regulations on the form of opinions are internal guidance and that it is presumed to have reviewed all of the pertinent issues regardless of the form of opinion. It remains to be seen how courts will interpret the Board’s new explicit regulatory posture in reviewing affirmances without opinion.

The Board also codified its policies for designating decisions as precedent. The Board ultimately declined to make the most drastic change proposed in 2008 — allowing three-member panels to designate their own decisions as precedent — finding that the current requirement that all of the permanent members of the Board must vote on whether to designate a decision as precedent was adequate.