The Justice Department’s Executive Office for Immigration Review, or EOIR, issued an Interim Rule that changes its internal organization, the delegation of authority to adjudicate cases and appeals, and official position titles at the Board of Immigration Appeals, or BIA. The rule was issued on and goes into effect Aug. 26, 2019.

We offer the following summary and analysis of the Interim Rule, which is not exhaustive of all changes. The rule:

• Delegates authority from the Attorney General to the EOIR Director to assign appellate cases "that cannot be completed in a timely fashion" — within 90 days for detained cases or 180 days for non-detained cases — to himself or herself to issue a decision within 14 days.
  • Analysis: This raises concerns about a political appointee having significant power to make decisions as well as concerns that, like immigration judges, BIA members will be pressured to complete cases faster.
• Changes official titles within the BIA from Board members to Appellate Immigration Judge.
  • The Chairman of the BIA will now be known as Chief Appellate Immigration Judge.
  • The Vice Chairman of the BIA will now be known as Deputy Chief Appellate Immigration Judge.
  • Analysis: These more judicial-sounding titles are in stark contrast to the administration's effort to decertify the judges union, weaken their independence, and accelerate adjudications.
• Officially establishes the EOIR Office of Policy as a component of EOIR. The Office of Policy will be headed by the Assistant Director for Policy who:
  • Supervises all policy activities of EOIR.
  • Oversees EOIR’s regulatory development and implementation.
  • Administers EOIR’s pro bono and legal orientation program activities.
  • Oversees the Recognition and Accreditation, or R&A, program.
  • Analysis: The Trump administration established the Office of Policy shortly after taking office. Advocates say the Office of Policy is primarily responsible for recent initiatives to speed up deportations and weaken due process protections.
• Shifts certain functions from the Office of General Counsel to the new Office of Policy.
• Notably, the rule transfers the responsibilities of the Office of Legal Access Programs, or OLAP, from the Office of the Director of EOIR to a division in the Office of Policy. The rule:
  • Grants the Assistant Director for Policy the authority to make R&A determinations, administrative terminations, and maintain the roster of recognized organizations and accredited representatives.
  • Replaces all references of “OLAP” with “Office of Policy.”
  • Replaces references of “OLAP Director” with “Assistant Director for Policy.”
  • Analysis: Although the rule does not change any R&A regulations, it is troubling that programs related to expanding counsel will be housed within a highly politicized division of EOIR in an administration that has expressed open hostility to immigration attorneys.

The Justice Department is accepting public comments on the Interim Rule. Comments are due by Oct. 25, 2019.

CLINIC opposes expanding the authority of the Director of EOIR to allow the self-assignment of appellate cases and is concerned that EOIR is codifying the Office of Policy. The National Association of Immigration Judges has expressed outrage over the rule, stating, “By collapsing the policymaking role with the adjudication role into a single individual, the Director of EOIR, an unconfirmed political appointee, the Immigration Court system has effectively been dismantled.”

Although the Interim Rule indicates that it does not have the effect of changing any of OLAP’s current functions, it is unclear what the practical impact of these changes may be for the R&A program. Additional information and guidance on submitting a comment will be shared soon. CLINIC will submit a comment, which we will share with the public upon submission.