September 25, 2020

Via Federal e-Rulemaking Portal Lauren Alder Reid, Assistant Director

Office of Policy, Executive Office for Immigration Review 5107 Leesburg Pike, Suite 1800

Falls Church, VA 22041

RE: Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

85 Fed. Reg. 52491 (Aug. 26, 2020)

EOIR Docket No. 19-0022; A.G. Order No. 4800-2020 RIN 1125-AA96

Dear Assistant Director Alder Reid:

Brooklyn Defender Services (“BDS”) submits these comments to the Department of Justice (“DOJ”) Notice of Proposed Rulemaking regarding “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” published in 85 Fed. Reg. 52491 (Aug. 26, 2020) (hereinafter, the “Proposed Rule”). For the reasons set forth below, BDS strongly opposes the Proposed Rule.

BDS is a full-service public defender organization in Brooklyn, New York that provides multi-disciplinary and client-centered criminal defense, family defense, immigration, and civil legal services, along with social work and advocacy support. BDS represents low-income people in nearly 30,000 criminal, family, civil, and immigration proceedings each year. Since 2009, BDS has counseled, advised, or represented more than 15,000 clients in immigration matters including deportation defense, affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s criminal court system. About a quarter of BDS’s criminal defense clients are foreign-born, roughly half of whom are not naturalized citizens and therefore at risk of losing the opportunity to obtain lawful immigration status as a result of criminal or family defense cases. Our criminal-immigration specialists provide support and expertise on thousands of such cases. BDS’s immigration practice represents people in applications for immigration relief before

U.S. Citizenship and Immigration Services (“USCIS”), and in removal proceedings in New York’s immigration courts. BDS is one of three New York Immigrant Family Unity Project (“NYIFUP”) providers and has represented more than 1,500 people in detained deportation proceedings since the inception of the program in 2013. BDS’s immigration practice regularly litigates removal defense cases before the Board of Immigration Appeals (“BIA”).

At its core, the Proposed Rule contravenes the notions of justice and appellate judicial review. First, the Proposed Rule would undermine the due process rights of noncitizens who appear before the BIA. It would strip immigration judges and BIA board members of discretionary authority to allow noncitizens the opportunity to obtain relief for which they are eligible, while simultaneously increasing the ability of the BIA to make arbitrary and inappropriate findings to finalize deportation orders. The changes to the standards and procedures set forth in the Proposed Rule would have a detrimental impact on the ability of individuals to defend themselves from removal, leaving them with no meaningful legal avenues to pursue meritorious claims for relief. As a result, individuals from our communities would be deported despite being eligible for relief or immigration status.

Second, the Proposed Rule would also hamstring the practice of attorneys who regularly appear before the BIA by creating inefficiencies and redundancies in the appellate process. This Proposed Rule is evidence that the BIA is subject to the political whims of an Administration focused on deportation, not on the proper execution of the law, and is yet another reminder that immigration courts are far from independent.

BDS urges that the Proposed Rule be rescinded in its entirety as it forecloses an appellate institution that provides people with a fair opportunity to have their cases heard—including individuals facing the exceedingly harsh penalty of deportation—in line with the pillars of due process and judicial independence.

A. A 30-day Comment Period To Respond to the Proposed Rule Is Insufficient

The Proposed Rule changes the procedures, standards, and practices of the BIA, and would have a significant impact on individuals who seek to defend themselves in removal proceedings and on their legal representatives. Given the breadth of the Rule, and the importance of the BIA as the central administrative appellate forum for noncitizens to assert their claims, the 30-day comment period is far too short to allow individuals, practitioners, and advocates to fully digest the rule and meaningfully craft feedback. Notably, 30 days is the minimum time allotted for a comment period.¹

Although at any time 30 days would be too short a comment period for such an extensive proposed regulation, this is especially true during the current COVID-19 pandemic, which continues to wreak havoc and cause public health and economic devastation. Across the country, the physical offices of many legal organization—including BDS—have been closed, with staff working from home and having to meet with clients, collect documents, and make submissions remotely. Notably, the country’s largest immigration court—26 Federal Plaza in New York—has been closed since March 18, 2020, and as of the date of this comment is still not open for hearings.² Against this backdrop, the DOJ is proposing a significant shift to procedure that requires legal organizations to divert resources to carefully review the Proposed Rule and provide meaningful feedback. And, despite the existing challenges of the pandemic, is forging ahead to make it even more difficult for immigrants to defend themselves in removal proceedings.

BDS substantively objects to the entirety of the Proposed Rule; however, given the limited time allowed for comments, we have not addressed every proposed regulation or provision. Our silence regarding a proposed regulations or provision does not mean acquiescence. Instead, at a minimum, DOJ should rescind the Rule in its entirety and, should the DOJ seek to re-issue the Rule, grant a minimum of a 60-day comment period.

B. The Proposed Rule Would Violate the Due Process Rights of Noncitizens By Significantly Narrowing the BIA’s Ability To Remand Cases

As the appellate body charged with reviewing judicial record of trial-level immigration courts, the BIA is frequently called upon to identify factual questions that the trial court overlooked. Rather than resolving those questions itself, the BIA remands the case so that an immigration judge can properly address issues in the first instance. Remand is an important mechanism to promote the efficient, effective, and fair operation of immigration courts, and yet the Proposed Rule would significantly narrow its availability. Specifically, the Proposed Rule would prohibit the BIA from receiving new evidence on appeal, remanding a case for the immigration judge to consider new evidence, or considering a motion to remand based on new evidence. 8 C.F.R. § 1003.1(d)(3)(iv) (proposed). The proposal would allow for remand only where it pertains to removability, the jurisdiction of the immigration court, or background investigations.³ See 85 Fed. Reg. at 52500. Nonetheless, the Proposed Rule would drastically limit the ability of individuals to file motions for remand, leaving them without meaningful legal avenues to pursue meritorious claims for relief.

The Proposed Rule would eliminate the ability to move to remand a case based on changes in the law as to relief from removal that require further factfinding. This is one of the many ways that DOJ is prioritizing speed over fairness and due process. Where there have been changes in the law that the BIA will seek to apply in any given case, intervening precedent requires remand so that individuals can present evidence regarding relief that the immigration judge did not require at the time of the hearing. Denying a person the opportunity to present such evidence raises serious due process concerns. There is no reason an individual defending themselves before an immigration judge should be expected or required to develop the record to meet new relief criteria or standards that were not in place at the time of the individual hearing. Yet that would be exactly the impact of this provision. Eliminating the ability of the BIA to remand for this reason would deprive immigrants the opportunity to present facts necessary to meet the legal standard being applied in their cases. Situations such as this demonstrate that motions to remand are not a form of “gamesmanship” as the DOJ claims (85 Fed. Reg. at 52501), but rather are an important tool to provide individuals a fair opportunity to present their claims.

For example, both through agency rulemaking and Attorney General certification of cases, the government has made frequent and drastic changes to the standards for asylum relief,⁴ making the availability of motions to remand for changes in the law that much more important. This includes Matter of A-C-A-A-, 28 I & N Dec. 84 (A.G. 2020), issued just yesterday. It is reasonable for an immigration judge to have relied on precedent in effect at the time of their decision and for an individual to present facts they believed necessary to succeed on the merits under the then- existing precedent. This type of intervening change in law may require remand to allow asylum seekers to present evidence that the immigration judge did not require and the respondent could not have known would be germane at the time of their individual hearing.

The Proposed Rule’s suggestion that individuals seeking to submit motions to remand to present new evidence should instead bring a motion to reopen is problematic. See 85 Fed. Reg. at 52500. Motions to reopen are subject to strict numerical and time bars, and there is no statutory basis to bring a motion to reopen simply for new evidence. However, remand for changes in the law are completely appropriate as part of the direct appeal. By suggesting a motion to reopen is appropriate in the case of a change in applicable legal standards, the DOJ would be effectively forcing individuals to accept a removal order—and all the consequences that entails, including losing any employment authorization—despite potentially being eligible for relief under the law. Further, this course of action would require individuals to utilize their sole statutory motion to reopen and potentially forgo any other legally viable basis for reopening their case. And, as discussed below, this Proposed Rule would eliminate the sole regulatory basis, sua sponte authority, for bringing non-statutory motions to reopen to present new evidence and motions to reopen that are outside the number and time bars.

Similarly, the Proposed Rule would also limit the scope of the immigration judge’s review when a case is remanded, effectively preventing immigration judges from considering all available relief. Under the proposed 8 CFR § 1003.1 (d)(7)(iv), the BIA would be authorized to remand a case to the immigration judge and divest itself of jurisdiction, yet the immigration judge could not consider any other issues beyond those specified on remand. Thus, if a new avenue of relief became available in the intervening months or years when an individual was waiting for a new individual hearing, the immigration judge could not consider those options. The result would be to tie the immigration judge’s hands to order removal even when there is an avenue of relief available and to deprive a noncitizen of the opportunity to seek all available opportunities to obtain legal status.

The law requires the BIA to engage in a deferential standard of review because the immigration judge is in the best position to evaluate evidence and make factual findings. This standard of review is rooted in fundamental principles of due process and fairness. Yet the impact of the Proposed Rule would be to undermine these essential principles. While the DOJ claims that the stated goal of the Proposed Rule is efficiency and finality, the practical result would be the opposite. Appellate practitioners like BDS would be forced to file more petitions for review at the circuit level to protect the due process rights of the individuals we represent, and to ensure that the BIA is not engaged in improper factfinding. This, in turn, would result in more remands back to the BIA.

C. The Proposed Rule Would Allow the BIA To Engage in Improper Fact Finding

The Proposed Rule would take the unprecedented—and previously denounced—step of permitting the BIA to engage in fact finding on appeal, allowing the BIA to notice facts that were not contained in the original record, instead of remanding cases to the immigration judge. The DOJ’s stated purpose in the Proposed Rule is to provide clarification for when the BIA can engage in factfinding; however this “clarification” expands the authority of the BIA to engage in factfinding. The practical effect of this proposed change would be to give the BIA authority to cherry pick facts that they deem to be undisputed, regardless of whether they in fact are, and insert them into the record without a remand or an opportunity for the respondent to contest the facts. It would also make it easier for the BIA to rely on facts that did not constitute part of the immigration judge’s decision-making to uphold a denial of relief in a case.

A remand to the immigration judge has served as one of the main ways that noncitizens are able to resolve appeals when further fact finding is necessary. The BIA is expressly prohibited from “engag[ing] in de novo review of findings of fact determined by an immigration judge.” 8

C.F.R. § 1003.1(d)(3)(i); see also id. § 1003.1(d)(3)(iv) (“Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand.”). The Second Circuit has repeatedly reversed the BIA for inappropriately engaging in de novo review of facts and making credibility determinations in contravention of jurisdictional requirements and the highly deferential “clear error” standard. See, e.g., Wu Lin v. Lynch, 813 F.3d 122, 131 (2d Cir. 2016) (remanding to BIA because their determination that a witness was not credible, without a “supportable basis” for their conclusion, did not satisfy clear error standard); Sherpa v. Holder, 374 Fed. Appx. 104, 105 (2d Cir. 2010) (reversing BIA because BIA had “reached its own credibility determination”); Padmore v. Holder, 609 F.3d 62, 68-69 (2d Cir. 2010) (reversing because the BIA had engaged in impermissible factfinding in determining, contrary to an immigration judge’s ruling, that cancellation of removal was not warranted); Fen Yong Chen v. Bureau of Citizenship & Immigration Services, 470 F.3d 509 (2d Cir. 2006) (reversing the BIA’s ruling because it, “started anew, conducting its own credibility analysis.”). Encouraging the BIA to accept facts that are not in the record will lengthen not shorten, the appellate process. It is not aligned with the judicial efficiency the DOJ cites to support the Proposed Rule.

D. The Elimination of the BIA and Immigration Judges’ Longstanding Sua Sponte Authority Over Motions to Reopen Would Bar Many Immigrants From Pursuing Relief For Which They Are Eligible

By eliminating sua sponte authority, the Proposed Rule would eliminate the ability of immigration judges and BIA board members to exercise their discretion and, when looking at the totality of the circumstances before them, prevent manifest injustices from being carried out. See 85 Fed. Reg. at 52504. Sua sponte authority allows judges the flexibility to use their discretion in exceptional circumstances when lawful avenues to challenge removal or assert relief exist. It is another tool that judges have to ensure the law is fairly and properly applied and is not, as the DOJ posits, to undermine finality of immigration proceedings and to contravene the statutory bars. See id. at 52493.

Given the statutory and regulatory constraints on motions to reopen filed by noncitizens, eliminating sua sponte authority to reopen would greatly reduce the ability of noncitizens to reopen their removal cases, even where doing so is necessary to ensure a just result. For example, the Proposed Rule would bar cases where an individual is now eligible for relief or not removable, even in circumstances where the noncitizen could not have presented the evidence earlier. Under current regulations, with only a few exceptions, a noncitizen may only file one motion to reopen and must file that motion within 90 days of the final order. 8 U.S.C. § 1229a(c)(7). Individuals bring motions to reopen their removal proceedings when there are new facts that could change the outcome of their case, either because of a change in law that means they are not removable or because they are now eligible for relief or status under the law. Contrary to what the DOJ suggests in the Proposed Rule, currently the bar to grant a motion to reopen is high. See I.N.S. v. Abudu, 485 U.S. 94, 95 (1988) (Noting that a motion to reopen is akin to “a motion for a new trial in a criminal case on the basis of newly discovered evidence, as to which the moving party bears a heavy burden.”). Often, it involves establishing not only eligibility for relief or status, but a strong likelihood of success; that such relief could not have been asserted at the individual hearing; and positive equities that show the individual merits a favorable exercise of discretion. Moreover, these are situations where the government has not executed the removal order.

We frequently represent individuals who are eligible for lawful permanent residence in the U.S., but for an old removal order. These members of our community frequently do not have any recourse other than a sua sponte motion to reopen to be able to adjust status and remain with their families. This includes individuals with approved I-130 petitions who are sponsored by U.S. citizen spouses or children, and victims of abuse, including victims of crimes, VAWA recipients, and children, for which U.S. law provides statutory protections.

For example, BDS represented a teenager for his motion to reopen who came to the United States when he was a toddler with his mother. In his removal proceedings, no independent relief was asserted on his behalf, and his mother lost her asylum claim, causing him, as a young child, to have a removal order. Instead of filing a direct appeal, their attorney at the time filed a motion to reopen, which was denied. Years later, as a teenager, he applied for and was granted Special Immigrant Juvenile Status (“SIJS”), but he was both time- and number-barred from bringing a statutory motion to reopen his case. Thus, despite having spent nearly his entire life in the United States, he had no other avenue to lift his removal order than a sua sponte motion to reopen.

Under the Proposed Rule, this young person, who the BIA noted in their decision reopening his case had significant positive equities, would be left without recourse to lift his removal order for the remainder of his life. In granting his motion to reopen, the BIA specifically rejected the argument that the DOJ now makes in the Proposed Rule, finding that reopening this young person’s case would not threaten the finality of thousands of final orders. As the BIA recognized in that case, finality is not undermined simply by the existence—and sometimes exercise—of discretionary authority, because that authority allows judges to look at the totality of the circumstances, and decide whether, in each individual case, relief is appropriate.

The DOJ argues that removing sua sponte authority would “improve consistency in BIA decision-making” because there is no regulatory definition of “exceptional circumstances.” 85 Fed. Reg. at 52505. The DOJ ignores that there is fulsome authority around exceptional circumstances.⁵ And DOJ’s statements that such motions to reopen are subject to “abuse” are similarly misplaced. As shown in the example above, this discretionary authority is a necessary tool to ensure that the strict bars around motions to reopen are not undermining congressional intent regarding adjustment of status and relief for vulnerable immigrants. Further undermining its claims regarding finality and abuse, under the Proposed Rule, DHS is not subject to time and number bars in submitting motions to reopen. Thus, the Proposed Rule unfairly allows DHS to access further review, while preventing respondents from doing so.

Moreover, sua sponte motions to reopen also provide an avenue for lawful permanent residents of the United States to challenge removal orders based on criminal convictions that were later either vacated for constitutional infirmities in their criminal cases, or who are not in fact removable given a change in law. For example, some BDS clients are placed in removal proceedings because of criminal convictions that were obtained unconstitutionally. The process of vacating those pleas can take years. Many of our clients are no longer removable after the pleas are vacated and could be left with no recourse to fight their removal if this proposed change is finalized. Such a result contravenes basic principles of due process and justice.

The DOJ argues that its proposed regulatory exception allowing one motion to reopen outside of existing time and number bars in certain limited circumstances where jurisdiction or removability is implicated, is sufficient to minimize any negative impacts from eliminating sua sponte authority. 85 Fed. Reg. at 52506. In reality this exception is far too narrow to prevent the manifest injustices that would be created by eliminating sua sponte authority. For instance, the exception would not apply to individuals who are now eligible for relief or status, as explained above. This, in itself, is a glaring concern. Nor would it apply to individuals who have already been removed. Further, it would add a requirement that individuals establish that they have exercised diligence in pursing the motion to reopen. This requirement seems to replicate the standards to equitably toll the time deadline for statutory motions to reopen. It does not make sense for this to be a requirement pertaining to motions to reopen brought outside the existing time bars, if many of those same motions could in fact be brought as statutory motions to reopen requesting equitable tolling. Further, DOJ does not provide a reason why an individual would be limited to only one such motion to reopen based on a change in the law implicating their removability. Bone fide changes in the law are outside of the respondent’s control, and thus it is not abuse to ask for a case to be reopened for more than one such change.

Furthermore, as proposed, sua sponte authority over motions to reopen would be eliminated as of the effective date of the Rule. See 85 Fed. Reg. at 52498. In doing so, the DOJ did not provide any carve out or exception for motions seeking sua sponte reopening that are pending with the BIA as of the effective date. For these motions, the Proposed Rule would retroactively withdraw sua sponte authority without notice, despite the reasonable reliance of noncitizens and their attorneys that their arguments as to sua sponte authority would be reviewed under the standards in place at the time they filed.

The DOJ’s arguments against sua sponte authority are short-sighted, circular, and inaccurate. The Proposed Rule would injure U.S. citizen family members and children, as well as our larger communities. The beneficiaries of sua sponte motions are often individuals with deep ties to this country, where living with a removal order, at risk of deportation, and often without status hampers their ability to fully contribute and be part of U.S. society.

E. The Proposed Rule Would Strip the Authority of the BIA and Immigration Judges To Handle Their Dockets, Undermining Judicial Independence

The Proposed Rule would explicitly eliminate any authority for immigration judges or the BIA to administratively close immigration cases absent an express regulatory or settlement basis to do so, not even with the consent of both parties. 8 C.F.R. 1003.1(d)(1)ii), 1003.10(b) (proposed). The DOJ seeks to codify Matter of Castro-Tum, despite it being superseded by at least two circuit courts. See Romero v. Barr, 937 F.3d 282 (4th Cir. 2019); Morales v. Barr, 963 F.3d 629 (7th Cir. 2020).

In courts across the country, administrative closure is a routine but important docketing tool allowing judges to prioritize cases most in need of their immediate attention, while allowing cases without an urgent need or that rely on a parallel proceeding for resolution to be deprioritized. See, e.g., WRS, Inc. v. Plaza Entm't, Inc., 402 F.3d 424, 427 (3d Cir. 2005). In the Proposed Rule, the DOJ fails to take into account that both noncitizens in removal proceedings and the immigration system benefit from administrative closures. Administrative closure allows for the efficient allocation of judicial resources, specifically in the context where individuals have a pending application with USCIS over which EOIR does not have jurisdiction, or where an individual is waiting for their priority date to become current so they can lodge an adjustment of status application. In many cases, once that application is approved, the removal case can be terminated or an individual may then apply for adjustment of status before the immigration court. This obviates the need for the immigration court to make a determination prior to a prima facie adjustment of status application. Thus, administrative closure facilitates judicial efficiency—a value the DOJ cites throughout the Proposed Rule. Given the extensive delays in adjudicating USCIS applications,⁶ it is particularly counterintuitive for DOJ to eliminate administrative closure at this time. Doing so would exacerbate the backlog of immigration court cases, which has only worsened during the COVID-19 pandemic, and prevent immigration judges from being able to prioritize and manage their own dockets. For example, BDS represents individuals who have been waiting years for their individual hearing on their asylum claim while, at the same time, young people who have been granted SIJS by USCIS and are still awaiting their priority date to become current so that they can adjust status are being calendared for hearings.

Further, for vulnerable noncitizens who are prima facie eligible for humanitarian relief, such as SIJS or U- or T-visas, administrative closure allows them to pursue permanent relief that only USCIS can grant. The Proposed Rule would result in the unduly harsh consequence of facing deportation while their USCIS application is pending. In this way, eliminating administrative closure would also result in harsh consequences for the most vulnerable individuals seeking humanitarian relief over which USCIS has exclusive jurisdiction.

The Proposed Rule would also make it more difficult for immediate relatives of U.S. citizens to obtain provisional waivers and stabilize their immigration status. Individuals who are in removal proceedings cannot obtain a provisional waiver unless their removal proceedings are administratively closed. See 8 C.F.R. § 212.7(e)(4)(iii). By explicitly stripping immigration judges and the BIA of the ability to administratively close cases, the DOJ is proposing to use a backdoor to end provisional waiver eligibility for many people who are in removal proceedings.

F. The Proposed Rule Would Disrupt the Appellate Practice, Disproportionately Burdening Indigent Individuals and the Attorney That Serve Them

The Proposed Rule would provide for simultaneous briefing within 21 days for both detained and non-detained appeals, and reduce the maximum allowable time for an extension of the briefing schedule from 90 days to 14 days. See 8 C.F.R. § 1003.3 (c)(1), (2) (proposed). The DOJ suggests that this severe reduction in time will improve efficiency and reduce the “likelihood of gamesmanship associated with simultaneous briefing in which one party files a last-minute extension request and then has a lengthy period of time to review and address arguments made in the opposing party’s brief that was already filed consistent with the prior deadline.” 85 Fed. Reg. at 52498.

BDS’s immigration practice has an active appellate docket. Our lawyers frequently rely heavily on the hearing transcripts when writing their briefs to ensure accuracy and completeness. Because of the time required to review an extensive record and the transcript of proceedings (which is not obtained before the notice of the briefing schedule), BDS may request briefing extensions to write a thorough brief that fully explains the relevant facts, analyzes the relevant law, and puts forth fulsome advocacy for the people we represent. As the BIA does not have electronic filing like the federal court system, we do not receive the briefing schedule immediately, nor are we able to file on the deadline itself. Instead, it often can take several days to receive the briefing schedule by U.S. Postal Service mail, and then at least one day for us to ensure the brief is filed on time via express mail. We may need to correct the transcript, or challenge the translation; requesting and then listening to the underlying recordings is a time consuming and burdensome task. Thus, the 21 day briefing period, without a proper opportunity to request a reasonable extension, would represent an exceedingly short window to brief important issues. It is not excessive to need more than a few weeks to write an adequate appellate brief; notably, federal court briefing periods are often 40 days or more. See, e.g., Local Rules of the Second Circuit Court of Appeals 31.2. On top of all these difficulties, there have been lengthy delays in receiving the mail due to the COVID- 19 pandemic and U.S. Postal Service delays.⁷ In short, when our office requests an extension, we are not attempting to “game” the system, rather we are ensuring that the people we represent are able to fully assert their rights and have an opportunity to access the relief to which they are entitled, despite hurdles beyond their control.

The DOJ asserts that the change in timeline will have “relatively little impact on the preparation of cases by the parties on appeal.” 85 Fed. Reg. at 52498. They further note that parties frequently do not file any briefs all. While it may be true that DHS often does not file a brief, or individuals who are proceeding pro se may not be in a position to file a brief, BDS files briefs in every appeal. The Proposed Rule does not account for this possibility, which is the reality in countless legal practices across the country, who believe. Briefs are critical to ensure that we adequately defend the individuals we represent and develop a record before the BIA.

The DOJ also proposes a simultaneous briefing schedule for non-detained individuals “to reduce adjudicatory delay” without explaining how the Proposed Rule would achieve this result. Id. This provision does not serve the DOJ’s purported goal of efficiency. The reason most courts in this country have consecutive briefing is to ensure that the parties are able to respond to their opponent’s arguments thoroughly. Contrary to what is stated in the Proposed Rule, id., the notice of appeal often does not contain a detailed statement of the findings of fact and law that are being challenged. In practice, notices of appeal generally provide only a cursory summary of the issues to be appealed, and may explicitly reserve the right to raise additional issues upon review of the transcript. This leaves the appellee without the ability to fully defend their case, by depriving them of the opportunity to counter the arguments made by DHS. The consecutive briefing process employed by the majority of appellate courts in the United States allows for cases to be briefed and resolved in both a fair expeditious manner, as it generally curtails the need for the kind of supplemental briefing the Proposed Rule envisions. It is also of concern that the request for supplemental briefing is solely within the discretion of the court itself: with the documented failure of the government to file briefs, supplemental briefing could be used by the BIA to seek briefing only from the DHS on issues helpful to them.

These changes to the appellate practice is yet another ways that DOJ is prioritizing speed over fairness and due process.

* * *

As set forth above, BDS strongly opposes the Proposed Rule. It would alter many aspects of long-established immigration court and appellate practice, further eroding the due process available in immigration proceedings. We request that DOJ consider these recommendations and immediately halt the implementation of the Proposed Rule. Please do not hesitate to contact us if you have questions regarding our comments. Thank you for your attention and considering our concerns.

Sincerely,

/s/ Brooke Menschel

Brooke Menschel

Director, Civil Rights and Law Reform

/s/ Sonia Marquez

Sonia Marquez

Senior Staff Attorney, Civil Rights and Law Reform

***

¹ Office of the Federal Register, A Guide to the Rulemaking Process Prepared by the Office of the Federal Register, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf.

² See EOIR Operation Status During Coronavirus Pandemic, https://www.justice.gov/eoir/eoir-operational-status- during-coronavirus-pandemic.

³ Under the Proposed Rule, the BIA could only remand a case for further factfinding if all of the following conditions are met: (1) The party seeking remand preserved the issue by presenting it before the immigration judge; (2) The party seeking remand, if it bore the burden of proof before the immigration judge, attempted to adduce the additional facts before the immigration judge; (3) The additional factfinding would alter the outcome or disposition of the case; (4) The additional factfinding would not be cumulative of the evidence already presented or contained in the record; and

(5) One of the following circumstances is present in the case: (i) The immigration judge’s factual findings were clearly erroneous, or (ii) Remand to DHS is warranted following de novo review. See 8 C.F.R. § § 1003.1(d)(3)(iv)(D) (proposed).

⁴ See, e.g., Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018); Matter of L-E-A-, 27 I & N Dec. 581 (A.G. 2019).

⁵ See e.g, Matter of G-D-, 22 I & N Dec. 1132, 1132 (BIA 1999) (“In order for a change in the law to qualify as an exceptional situation that merits the exercise of discretion by the Board of Immigration Appeals to reopen or reconsider a case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law.”); Matter of J-J-, 21 I & N Dec. 976, 984 (BIA 1997) (sua sponte reopening is limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations).

⁶ See AILA, AILA Policy Brief: USCIS Processing Delays Have Reached Crisis Levels Under the Trump Administration, (Jan. 30, 2019) https://www.aila.org/infonet/aila-policy-brief-uscis-processing-delays.

⁷ Is The Mail Getting Slower? Our Tracker Says Yes, N.Y. Times, available at https://www.nytimes.com/interactive/2020/09/14/upshot/is-the-mail-getting-slower-tracker.html.