Federal Register (July 2, 2019)

AGENCY:  Executive Office for Immigration Review, Department of Justice.

ACTION:  Final rule.

SUMMARY:

The Department of Justice (Department) is publishing this final rule (“final rule” or “rule”) to amend the regulations regarding the administrative review procedures of the Board of Immigration Appeals (BIA or Board). This final rule sets forth the Department’s longstanding position that the regulations providing for an affirmance without opinion (AWO), a single-member opinion, or a three-member panel opinion are not intended to create any substantive right to a particular manner of review or decision. The final rule also clarifies that the BIA is presumed to have considered all of the parties’ relevant issues and claims of error on appeal regardless of the type of the BIA’s decision, and that the parties are obligated to raise issues and exhaust claims of error before the BIA. In addition, the final rule codifies standards for the BIA’s consideration in evaluating whether to designate particular decisions as precedents. Finally, the final rule provides clarity surrounding precedent decisions in the context of decisions from the Executive Office for Immigration Review (EOIR) regarding the recognition of organizations and the designation of accredited representatives.

DATES:  This rule is effective September 3, 2019.

UPDATE (July 8):  Here are Jeff Chase’s preliminary views on the new rule: he plans to write an article.  The following is his assessment in a nutshell:

“On July 2, the Department of Justice published final regulations impacting how decisions of immigration judges will be reviewed, both on appeal to the Board of Immigration Appeals and by certification to the Attorney General.  .  .  .  [M]y quick take [is]  that the new rule encourages the BIA to decide cases using two sentences of boilerplate language (plus a citation) that provides no insight into its determination process.  However, the regs imbue such decisions with a 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.’

Just to be clear, the boilerplate denials look like this (in their entirety):

`ORDER: The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1(e)(4).’”

KJ