Comment in Opposition to the Interim Final Rule: “Appellate Procedures for the Board of Immigration Appeals”

SUMMARY

The Immigration and Nationality Law Committee (Dorian Rojas and Ludivine Van Der Heyden,Co-Chairs) issued a comment opposing the Executive Office for Immigration Review’s Interim Final Rule (IFR) revising appellate procedures before the Board of Immigration Appeals (BIA). The Committee argues that the rule undermines due process by allowing the BIA to summarily dismiss most appeals from Immigration Judge decisions unless a majority of Board members vote to hear the case. The rule also shortens the appeal deadline from 30 days to 10 days, requires simultaneous briefing that effectively eliminates reply briefs, and removes certain procedural safeguards. The Committee argues that these changes are designed to accelerate deportation proceedings and reduce case backlogs, but they would severely restrict meaningful appellate review and make it significantly harder for noncitizens, particularly asylum seekers, to challenge removal decisions.

The Committee further contends that the rule will shift the burden of review to federal courts, strain access to legal representation, and create confusion for individuals navigating the appeals process, especially those without counsel. It also criticizes the administration’s decision to implement the rule through an Interim Final Rule with only a 30-day comment period rather than the standard notice-and-comment process required under the Administrative Procedure Act. The Committee opposes the IFR and calls for measures to make the BIA an independent court (Article I or Article III court) committed to due process coupled with adequate resources for a functioning and fair appellate body.

REPORT

By Electronic Portal
Jamee E. Comans
Acting Assistant Director
Office of Policy, Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2500
Falls Church, VA 22041

Re: RIN 1125-AB37 or EOIR Docket No. EOIR-26-AB37

Dear Jamee E. Comans:

The Immigration and Nationality Law Committee of the New York City Bar Association (“City Bar”) submits this comment in opposition to the Executive Office for Immigration Review’s (“EOIR”) above-referenced Interim Final Rule (“IFR”) titled “Appellate Procedures for the Board of Immigration Appeals,” which was published in the Federal Register on February 6, 2026[1] with a corresponding 30-day allotment for public comments (“IFR”).  The IFR fundamentally undermines due process of law by allowing the Board of Immigration Appeals (“BIA” or “Board”) to summarily dismiss appeals of Immigration Judge (“IJ”) decisions, reduces the deadline for filing appeals from 30 days to a mere 10 days for most cases, requires the parties to submit simultaneous briefing, and practically eliminates the possibility of submitting reply briefs, among other changes.  Its clear objective is to dispense with noncitizens’ immigration proceedings more swiftly, in line with the federal administration’s stated mass deportation goal.[2]  The IFR unabashedly states that “[b]y reducing potential delays in adjudications, this IFR supports the Administration’s efforts to reduce backlogs in removal proceedings and incentivize aliens to depart the United States voluntarily and return to their home country or to not come to the United States in the first instance.”[3]  In clearly adopting deterrence as an objective of this IFR, the Department of Justice (“DOJ”) is effectively weaponizing rulemaking to achieve the administration’s policy goals.

The Immigration and Nationality Law Committee addresses diverse issues pertaining to immigration law and policy. Our members include staff of legal services organizations, private immigration attorneys, judges, staff of local prosecutor’s offices, employees of government immigration agencies, academics, and law students.  We submit this comment based on our collective expertise.

I. INTRODUCTION

On February 6, 2026, the Department of Justice issued the IFR pursuant to its statutory authority at section 103(g) of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. 1103(g), as amended by the Homeland Security Act of 2002 (“HSA”), Pub. L. 107–296, 116 Stat. 2135 (as amended).  As published in the Federal Register, the IFR is proposing significant changes, explained below.

a. Summary dismissal becomes the default rule. The IFR allows the BIA to summarily dismiss all appeals from an IJ’s decision – with certain exceptions[4] – “unless a majority of the permanent Board members vote en banc to accept the appeal for adjudication on the merits.”[5]  Such dismissals shall be made by a single Board member without further consideration through the issuance of a written order and will occur quickly – within 15 days of filing the appeal.  When an appeal is summarily dismissed under the IFR, the IJ’s decision is adopted by the Board and articulates the rationale for removal that is subject to judicial review.[6]  The IFR applies equally to appeals filed by both the Department of Homeland Security (“DHS”) and noncitizens.

b. Deadline for filing an appeal is shortened. The deadline for filing an appeal with the BIA is changed from 30 to a mere 10 days for most cases.[7]  This includes asylum claims denied on grounds specified at sections 208(a)(2)(A), (B), or (C) of the INA.  These are where a noncitizen: (1) can be removed to a third country pursuant to a bilateral or multilateral agreement such as an Asylum Cooperative Agreement (“ACA”), INA 208(a)(2)(A); (2) cannot show by a preponderance of the evidence that his or her application has been filed within one year after the date of arrival in the United States, subject to narrow exceptions, INA 208(a)(2)(B); or (3) has previously applied for asylum and had such application denied, subject to narrow exceptions, INA 208(a)(2)(C).

c. Parties are expected to file simultaneous briefing. If a majority of the current BIA members vote to consider the appeal on the merits within 10 days, the IFR requires simultaneous briefing within 20 days of the Board setting the schedule, generally precluding reply briefs and limiting extensions.  This applies to both detained and non-detained noncitizens.[8]  Extensions, which had become “an expectation based on Board routine in recent years,” will be limited to cases of exceptional circumstances as defined by section 240(e)(1) of the INA.[9]  “In short, for exceptional circumstances beyond the control of a party, the Board retains authority to grant an extension.”[10]  Finally, depending on the “important or novel issues for the Board to resolve on appeal,” the IFR does not preclude the Board from exercising its discretion to request or accept additional briefing on the case.[11]

d. Certain procedural safeguards are eliminated. “To provide maximum flexibility in ensuring the record is forwarded as quickly as possible,” immigration judges will no longer be required to review and approve transcripts of their oral decisions.[12]

e. The Interim Final Rule is not applicable to pending appeals. After recognizing that the IFR “represents a notable procedural change to how the Board has operated,” the DOJ states it will apply these changes to cases only once the rule becomes effective.[13]  The IFR is set to become effective on March 9, 2026.[14]

f. Other Changes. While a handful of other technical changes are included in the IFR, it is noteworthy that the DOJ is ordering to revert to the term “alien” instead of “noncitizen” and the term “unaccompanied alien child” or “unaccompanied alien children” instead of “unaccompanied child” or “unaccompanied children” throughout its regulations.[15]

II. THE INTERIM FINAL RULE SEVERELY UNDERMINES DUE PROCESS PROTECTIONS

The City Bar is deeply concerned that the IFR does not comport with fundamental principles of due process.  In fact, the changes sought will make it nearly impossible for noncitizens to appeal their deportation cases.  This is especially concerning where a noncitizen is seeking review of a denial of an asylum claim, which carries life or death consequences.  The IFR repeatedly underlines the goal to speed up deportation proceedings, even if this means effectively curtailing review of IJ decisions by an administrative agency entirely.  Jennifer Peyton, the former assistant chief immigration judge in Chicago, described the rule as “yet another deprivation of due process for noncitizens who are already getting the short end of the stick.”[16]  Johnny King, an immigration attorney and former US Citizenship and Immigration Services counsel also noted: “[t]his raises serious due process concerns.”[17]

Summary denials by the BIA deprive the circuit courts of the analysis they need to undertake meaningful judicial review.  As the Second Circuit noted in Poradisov, v. Gonzalez:

Despite our generally deferential review of IJ and BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.  See, e.g., Diallo, 232 F.3d at 287-89 (vacating a decision because the BIA failed to make a credibility finding, explain why its demand for corroborative evidence was reasonable, or assess Diallo’s stated reasons for failing to provide certain corroboration);  Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir.1992) (“[W]e cannot assume that the BIA considered factors that it failed to mention in its decision.” (internal quotation marks omitted)); Sanon v. INS, 52 F.3d 648, 651 (7th Cir.1995) (explaining that courts of appeals defer to BIA rulings only where there is “proof that the Board has exercised its expertise in hearing a case”).

Poradisov, v. Gonzalez, 420 F.3d 70, 77 (2005).

The IFR purports to justify abdicating the BIA’s appellate review of IJ decisions by stating that it allows “aliens to seek Federal court review expeditiously, rather than potentially waiting for years for a Board decision.”[18]  But federal courts are already inundated with other litigation stemming from this administration’s immigration policies, including habeas petitions from noncitizens in detention.[19]  Displacing judicial review of IJ decisions to federal appellate courts is inefficient, in addition to being an erosion of due process.

Shifting the burden of review to the federal appellate courts is complicated by the Supreme Court’s decision in Riley v. Bondi, 606 U.S. __, 2025 WL 1758502 (June 26, 2025), holding that the 30-day time limit set forth in 8 U.S.C. § 1252(b)(1) for filing a Petition for Review (“PFR”) of a final order of removal is non-jurisdictional.  But the Court did not rule on whether the rule is mandatory, i.e., applicable only subject to waiver and/or forfeiture by the DOJ, or also subject to equitable tolling by the courts of appeals.[20]  It is unlikely that this administration’s DOJ will be inclined to agree to waive any objection to the timeliness of a PFR.  With thousands of cases speeding through a BIA process that is now fundamentally lacking in due process and designed to result in denials, appellants in removal proceedings will have to race to file petitions for review or lose their only opportunity for meaningful review.

In February 2025, EOIR removed 9 BIA members who were appointed during the Biden Administration, reducing the size of the Board from 24 to 15 members.[21]  The IFR recognizes that it has aggressively downsized the agency to 15 members, while simultaneously using a nonsensical justification that an increased Board size will not lead to increased case adjudications.  Instead, the administration explains that simply removing the BIA’s appellate review for the majority of cases will lead to swifter decisions and therefore decrease the “unprecedented Board caseload.”[22]  Yet, the sweeping changes laid out in the IFR, coupled with the removal of highly competent BIA members earlier this year, appears to be nothing more than a problematic solution to a manufactured crisis.[23]  Similarly inexplicable is the reasoning that the Board should simply relinquish its appellate review entirely because it sustained only a small percentage of appeals.[24]  To the contrary, the fact that the BIA sustained appeals in even just a handful of cases or remanded to the IJ for further proceedings, should be sufficient proof that a careful review of cases on appeal is warranted as a bulwark against violations of due process. Similarly, the value of the statistic set forth in the IFR should be taken with a grain of salt, as it does not appear to encompass the number of times the BIA decided to remand a case to the IJ, making it rather a misleading statistic overall.

Expediting the appellate process in immigration cases, as proposed by the IFR, also raises serious concerns with noncitizens’ access to legal representation.  Shortening the appeal deadline to a mere 10 days will inevitably make it harder for noncitizens to timely find legal representation.  Even if the noncitizen is able to secure counsel on such short notice, the 10-day deadline will make it exceedingly difficult for the attorney to meaningfully review the underlying decision for factual and legal errors before filing the notice of appeal.  The reality is that given that most appeals will be decided without any briefing, the notice of appeal will be the appellant’s only opportunity to raise any issues for the BIA’s (and/or the circuit court’s) review.  This will also have a chilling effect on legal services organizations’ capacity to mentor and support pro bono attorneys in such cases, and to engage in limited-scope assistance with appeals.  While the DOJ acknowledges this very real concern in a mere footnote to the IFR,[25] it simply brushes it off against the goal to expeditiously deny relief to noncitizens.

Moreover, the two distinct deadlines introduced by the IFR for appealing asylum claims are wildly confusing. Coupled with language barriers and the difficulty in finding legal representation, the IFR will no doubt have the effect of creating chaos for pro se respondents seeking appellate review of their asylum denials. The IFR ignores the crucial context that the administration’s evisceration of court-based legal assistance programs such as Immigration Court Helpdesk, as well as the logistical limitations for pro se respondents to obtain their Record of Proceedings from the BIA once a Notice of Appeal is filed, makes it virtually impossible for an attorney to review the record and decide whether it’s appropriate to take a case for appellate representation. Not to mention the recently increased and highly deterrent filing fee of $1,030.00 to appeal an IJ decision before the BIA,[26] only to have the appeal summarily dismissed.  Indeed, for asylum denials on the merits who remain subject to the 30-day appeal deadline, the IFR still results in extreme prejudice to the appellant as the BIA will simply issue a summary dismissal with no analysis whatsoever.

Finally, the IFR seeks to change the tone of the discourse around immigration by reintroducing the term “alien” instead of the term “noncitizen” throughout the regulations.  EOIR Policy Memorandum (“PM”) 21-27, issued on July 23, 2021, under the Biden Administration, had mandated that EOIR personnel use inclusive, modern terminology for noncitizens, avoiding terms like “alien” in favor of “noncitizen” or “undocumented individual.”  The Supreme Court has approvingly used the term “noncitizen” as equivalent to the statutory term “alien.” See, e.g., Santos-Zacaria v. Garland, 598 U.S. 411, 414 n.1 (2023) (citing Nasrallah v. Barr, 590 U. S. 573, 578 n. 2 (2020)) (slip op., at 4, n. 2).   EOIR PM 21-27 was rescinded by EOIR PM 25-07 on January 29, 2025, at the beginning of the second Trump Administration.[27] We are deeply concerned at the regulatory codification of such pejorative language, which is only meant to demean a part of the population and make clear this administration’s stance that they do not belong.[28]  This is simply unacceptable.

III. THERE IS NO JUSTIFICATION FOR BYPASSING THE NOTICE AND COMMENT RULEMAKING PROCEDURES MANDATED BY THE ADMINISTRATIVE PROCEDURE ACT

Instead of an IFR, the administration could have chosen a Notice of Proposed Rulemaking (“NPRM”), a proposal for a new regulation that invites public comment before taking effect.  On the other hand, IFRs are effective immediately or shortly after their publication.  The IFR was published in the Federal Register on February 6, 2026 and is set to go into effect swiftly on March 9 without the agency having to respond to or even consider comments first.  The administration’s use of an IFR for such an important overhaul of the appeal process in immigration proceedings is deeply flawed.

Generally, under the Administrative Procedure Act (“APA”), agencies provide 60 days for comment.[29]  The adequacy of notice is a critical starting point which affects the integrity of an administrative proceeding.  Notice is said not only to improve the quality of rulemaking through exposure of a proposed rule to comment, but also to provide fairness to interested parties and to enhance judicial review by the development of a record through the commentary process.”  The current administration has provided only 30 days for the public to comment on the IFR because it contends that the changes only affect the “practices and procedures of the Board.”  The shortened period – particularly in the face of such major changes to the BIA’s substantive review of immigration cases – does not appear justified.  The IFR is not a “procedural” rule, nor an “interpretive” rule, nor a “general statement of policy,” but rather a substantive rule, affecting substantial rights of respondents in removal proceedings, and thus required adequate notice and comment under the APA. EPIC v. DHS, 653 F.3d 1 (D.C. Cir. 2011).  There is also no justification provided as to what could be considered an urgent need to cut the comment period short.

In short, adequate notice is essential to due process.  National Black Media Coalition v. FCC, 791 F.2d 1016 (2d Cir. 1986) (an “agency must allow interested persons an opportunity to comment on the proposed rules. [5 U.S.C.] Sec. 553(c).  Curtailing the public’s right to meaningfully comment on the IFR, an outcome proscribed by the APA under its notice and comment rulemaking procedures, is unacceptable.  It is also disingenuous to pass such a rule as simply procedural when it fundamentally changes how the system operates.  The fact that the IFR states that the changes do not apply to appeals pending prior to the effective date directly  undermines the DOJ’s reasoning that these are simple procedural adjustments.  The IFR’s own language concedes as much when it states that the DOJ “has reconsidered the Board’s role as an appellate tribunal.”[30]  “Issuing the policy before the customary notice and comment process is gathered and incorporated” is guaranteed to open the administration to legal challenges on procedural grounds.[31]

IV. CONCLUSION

While the need for an efficient BIA is beyond cavil, the IFR does not increase its efficiency. It radically revises the BIA’s appellate authority, gutting fundamental due process protections for the most vulnerable noncitizens – those facing the imminent prospect of banishment through deportation, particularly asylum seekers who are at risk of persecution, torture, and death in their countries of origin.

The City Bar opposes the IFR and instead calls for measures to make the BIA an independent court (Article I or Article III court) committed to due process,[32] coupled with adequate resources for a functioning and fair appellate body.  The administration must not use backlog concerns as a pretext to undermine our nation’s commitment to due process and humanitarian values.  We look forward to engaging in further dialogue with the administration to ensure that our immigration policies are both effective and just.

Respectfully submitted,

Immigration & Nationality Law Committee
Ludivine Van Der Heyden, Co-Chair
Dorian Rojas, Co-Chair