Rule2026-02326
Appellate Procedures for the Board of Immigration Appeals
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 6, 2026
Effective
March 9, 2026
Issuing agencies
Justice DepartmentExecutive Office for Immigration Review
Abstract
This interim final rule ("IFR") amends Department of Justice ("Department" or "DOJ") regulations to streamline administrative appellate review by the Board of Immigration Appeals ("Board" or "BIA") of decisions by Immigration Judges by making review of such decisions on the merits discretionary, by setting appropriate times for briefing in cases that are reviewed on the merits, and by streamlining other aspects of the appellate process to ensure timely adjudications and avoid adding to the already sizeable backlog at the Board. Additionally, the Department is making various technical and non- substantive changes to its regulations.
Full Text
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<title>Federal Register, Volume 91 Issue 25 (Friday, February 6, 2026)</title>
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[Federal Register Volume 91, Number 25 (Friday, February 6, 2026)]
[Rules and Regulations]
[Pages 5267-5278]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02326]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 91, No. 25 / Friday, February 6, 2026 / Rules
and Regulations
[[Page 5267]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1208, and 1240
[Docket No. EOIR-26-AB37; Dir. Order No. 02-2026]
RIN 1125-AB37
Appellate Procedures for the Board of Immigration Appeals
AGENCY: Executive Office for Immigration Review (``EOIR''), Department
of Justice.
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule (``IFR'') amends Department of Justice
(``Department'' or ``DOJ'') regulations to streamline administrative
appellate review by the Board of Immigration Appeals (``Board'' or
``BIA'') of decisions by Immigration Judges by making review of such
decisions on the merits discretionary, by setting appropriate times for
briefing in cases that are reviewed on the merits, and by streamlining
other aspects of the appellate process to ensure timely adjudications
and avoid adding to the already sizeable backlog at the Board.
Additionally, the Department is making various technical and non-
substantive changes to its regulations.
DATES:
Effective date: This IFR is effective March 9, 2026.
Comments: Electronic comments must be submitted, and written
comments must be postmarked or otherwise indicate a shipping date on or
before March 9, 2026. The electronic Federal Docket Management System
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> will accept electronic comments until
11:59 p.m. Eastern Time on that date.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit your comments, identified by the agency name and
reference RIN 1125-AB37 or EOIR Docket No. EOIR-26-AB37, by one of the
two methods below.
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the website instructions for submitting comments.
<bullet> Mail: Paper comments that duplicate an electronic
submission are unnecessary. If you wish to submit a paper comment in
lieu of electronic submission, please direct the mail/shipment to:
Jamee E. Comans, Acting Assistant Director, Office of Policy, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2500, Falls
Church, VA 22041. To ensure proper handling, please reference the
agency name and RIN 1125-AB37 or EOIR Docket No. EOIR-26-AB37 on your
correspondence. Mailed items must be postmarked or otherwise indicate a
shipping date on or before the submission deadline.
A summary of this rule may be found in the docket for this
rulemaking at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Jamee E. Comans, Acting Assistant
Director, Office of Policy, Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041; telephone (703)
305-0289.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule via one of the methods and by the deadline stated above. The
Department also invites comments that relate to the economic,
environmental, or federalism effects that might result from this rule.
Comments that will provide the most assistance to the Department in
developing these procedures will reference a specific portion of the
rule; explain the reason for any recommended change; and include data,
information, or authority that supports each recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONALLY
IDENTIFYING INFORMATION'' in the first paragraph of your comment and
identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify the confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Personally identifying information located as set forth above will
be placed in the agency's public docket file but not posted online.
Confidential business information identified and located as set forth
above will not be placed in the public docket file. The Department may
withhold from public viewing information provided in comments that it
determines may impact the privacy of an individual or is offensive. For
additional information, please read the Privacy Act notice that is
available via the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>. To
inspect the agency's public docket file in person, you must make an
appointment with the agency. Please see the For Further Information
Contact paragraph above for agency contact information.
II. Legal Authority
The Department issues this IFR pursuant to 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''),
Public Law 107-296, 116 Stat. 2135 (as amended). The HSA provides that
EOIR exists within DOJ and that it shall be ``subject to the direction
and regulation of the Attorney General'' under section 103(g) of the
INA, 8 U.S.C. 1103(g). Further, under the HSA, the Attorney General
retains authority to ``establish such regulations, . . . issue such
instructions, review
[[Page 5268]]
such administrative determinations in immigration proceedings, delegate
such authority, and perform such other acts as the Attorney General
determines to be necessary for carrying out'' the Attorney General's
authorities under the INA. HSA 1102, 116 Stat. at 2273-74; INA
103(g)(2), 8 U.S.C. 1103(g)(2). Those authorities include conducting
removal proceedings under section 240 of the INA, 8 U.S.C. 1229a
(``section 240 removal proceedings'').
III. Background
A. General Regulatory Authority of the Board
In 1940, the Immigration and Naturalization Service (``INS'') and
its functions were transferred to the Department, to be ``administered
under the direction and supervision of the Attorney General.'' See
Reorganization Plan No. V, 5 FR 2223 (June 14, 1940). Shortly
thereafter, the Attorney General delegated various powers and
authorities to the Board, or, as it was then known, the Board of Review
of the INS, including ordering deportation after proceedings and
considering appeals of decisions in specific types of cases.\1\ See
Order No. 3888, Delegation of Powers and Definition of Duties, 5 FR
2454, 2454-55 (July 3, 1940). In January 1983, a reorganization
consolidated Immigration Judges and the Board into the newly created
EOIR in order to ``streamlin[e] the Department's management of this
important function and minimiz[e] mission disparities within the INS.''
Aliens and Nationality; Rules of Procedure for Proceedings Before
Immigration Judges, 52 FR 2931, 2931 (Jan. 29, 1987) (explaining the
1983 reorganization).
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\1\ ``The Board has existed, in one form or another and by one
name or another, since the early days of effective immigration law
enforcement in this country.'' Maurice A. Roberts, The Board of
Immigration Appeals: A Critical Appraisal, 15 San Diego L. Rev. 29,
30 (1977) (retired Board Chairman discussing the Board's origins and
development).
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Notably, since its inception as a component of the Department, the
Board's appellate authorities have been delegated by the Attorney
General and delineated by regulation, rather than by statute. See,
e.g., 8 CFR 1003.1(a)(1) (``The Board members shall be attorneys
appointed by the Attorney General to act as the Attorney General's
delegates in the cases that come before them.''); 8 CFR 1003.1(d)(1)
(``The Board shall function as an appellate body charged with the
review of those administrative adjudications under the Act that the
Attorney General may by regulation assign to it.''); Kucana v. Holder,
558 U.S. 233, 239 (2010) (``As adjudicator in immigration cases, the
Board exercises authority delegated by the Attorney General.'').\2\
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\2\ Indeed, the INA mentions the Board in one lone subparagraph
where it provides that a removal order becomes final when it is
affirmed by the Board or when the period for seeking Board review
has expired. INA 101(a)(47)(B), 8 U.S.C. 1101(a)(47)(B).
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Through regulation, the Attorney General has provided for appellate
review by the Board of multiple case types, including decisions of
Immigration Judges in exclusion, deportation, removal, asylum-only, and
withholding-only proceedings; carrier fines; certain immigrant visa
petition decisions by the Department of Homeland Security (``DHS'')
under sections 204 and 205 of the INA, 8 U.S.C. 1154, 1155;
applications for the exercise of discretion under section 212(d)(3) of
the INA, 8 U.S.C. 1182(d)(3); decisions on applications for adjustment
of status and rescission of adjustment of status; decisions relating to
Temporary Protected Status; determinations related to bond, parole, or
detention of an alien; and disciplinary proceedings involving
practitioners or recognized organizations. See 8 CFR 1003.1(b).
To adjudicate such cases, the Attorney General has also, through
regulation, provided the Board with multiple adjudicatory options,
including summary dismissal, affirmance without opinion (``AWO''), or
decision by a single Appellate Immigration Judge, a panel of three
Appellate Immigration Judges, or en banc. See, e.g., 8 CFR
1003.1(a)(5), (d)(2), (e)(2)-(6). Procedures like AWO and summary
dismissal were introduced to address significant appeal backlogs and
have been upheld by Federal circuit courts as being well within the
Department's authority. See, e.g., Executive Office for Immigration
Review; Board of Immigration Appeals; Streamlining, 64 FR 56135, 56137-
38 (Oct. 18, 1999) (AWO rule detailing the time-consuming appeals
process and the need for more efficient adjudication measures);
Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003) (holding that
``[p]romulgation of the AWO regulations is within the power of the
[agency]'' and the Board ``can adopt, without further explication, the
IJ's opinion''); Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005)
(holding that the petitioner ``has not established that the BIA's
regulations--authorizing summary dismissal for failure to either file a
brief or specify the grounds for appeal--violated his due process
rights'').
In line with these long-standing procedures, the Department is
issuing this IFR to amend its summary dismissal procedures to better
address lengthy appeal backlogs at the Board, as detailed in Section
IV.A of this preamble.
B. History of Measures To Increase Board Efficiency
Over time the Department has adopted measures to streamline Board
review, especially when appeal receipts outpaced appeal adjudications
leading to backlogs. In 1999, after a more than 9-fold increase in
annual appeal and motion receipts over the course of 14 years, the
Department adopted streamlining measures with four goals: (1) promoting
uniformity in dispositions by Immigration Judges by providing
authoritative guidance in high-quality appellate decisions; (2)
deciding all incoming cases in a timely and fair manner; (3) assuring
that individual cases are decided correctly; and (4) eliminating its
backlog of cases. 64 FR 56136 (``In 1984, the Board received fewer than
3,000 new appeals and motions. In 1994, it received more than 14,000
new appeals and motions. In 1998, in excess of 28,000 new appeals and
motions were filed.''). To do so, the Board limited the use of three-
member panels to review appeals and allowed for AWO by a single Board
member in specific circumstances. Id.
The streamlining process undertaken by the Board proved a success,
leading to a 50 percent increase in overall Board productivity in
fiscal year 2001. Operations of the Executive Office for Immigration
Review (EOIR): Hearing Before the Subcomm. on Immigr. and Claims of the
H. Comm. On the Judiciary, 107th Cong., 2d Sess. 48 (2002) (testimony
of Kevin Rooney, Director, EOIR). The initiative was also assessed
favorably by an external auditor. Arthur Andersen & Company, Board of
Immigration Appeals (BIA) Streamlining Pilot Project Assessment Report
(Dec. 13, 2001).
In 2002, the Department published a final rule that, while
maintaining the basic AWO process, mandated the use of AWO in any case
that met the regulatory threshold criteria. See Board of Immigration
Appeals: Procedural Reforms To Improve Case Management, 67 FR 54878
(Aug. 26, 2002). Compare 8 CFR 3.1(a)(7)(ii) (2000) (providing that a
single Board member ``may'' affirm without opinion), with 8 CFR
1003.1(e)(4) (2003) \3\ (providing that a
[[Page 5269]]
single Board member ``shall'' affirm without opinion). Under the 2002
rule, an AWO was issued if the Board member concluded that ``the result
reached in the decision under review was correct,'' that any errors in
the decision were ``harmless or nonmaterial,'' and that either the
issues on appeal are ``squarely controlled'' by precedent and do not
present a novel factual scenario that requires a decision to apply
precedent or are not so substantial as to warrant issuance of a written
opinion by the Board. 8 CFR 1003.1(e)(4)(i) (2003).
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\3\ In 2003, the Attorney General redesignated the previous
regulations in 8 CFR part 3, relating to EOIR, as 8 CFR part 1003 in
connection with the abolition of the former INS and the transfer of
its responsibilities to DHS. See Aliens and Nationality; Homeland
Security; Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003).
Under the HSA, EOIR (including the Board and the Immigration Judges)
remains under the authority of the Attorney General. See 6 U.S.C.
521; 8 U.S.C. 1103(g).
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Although these changes initially helped the Board adjudicate more
cases overall, their impact on how timely and efficiently the Board
adjudicated individual cases is less clear. As the Department's Office
of Inspector General (``DOJ OIG'') found in 2012, EOIR did not track
all Board appeals the same way and used different measures rather than
simple case processing times to track timely adjudication. See DOJ OIG,
Management of Immigration Cases and Appeals by the Executive Office for
Immigration Review (Oct. 2012), <a href="https://oig.justice.gov/reports/2012/e1301.pdf">https://oig.justice.gov/reports/2012/e1301.pdf</a> [<a href="https://perma.cc/TPZ8-47JC">https://perma.cc/TPZ8-47JC</a>]. For example, ``[d]epending on
the type of review--one or three board members--EOIR counts the appeal
processing time from different starting points,'' and ``[t]hese
different starting points significantly skew the reported achievement
of its completion goals for appeals and impede EOIR's effective
management of the appeals process.'' Id. at 50. As a result, the case
processing times reported by EOIR did not accurately reflect the
complete case processing times for an appeal. Id. at 49 (``While EOIR's
method of calculation showed an average of 54 days to process an appeal
under the one-member goal and an average of 76 days under the three-
member goal, the entire time to process the appeals averaged 372 and
361 days, respectively.''). Moreover, EOIR declined to implement the
DOJ OIG's recommendation to ``improve its collecting, tracking, and
reporting of BIA appeal statistics to accurately reflect actual appeal
processing times.'' Id. at 50. Additionally, despite a regulatory
command to do so, see 8 CFR 1003.1(e)(8)(v), the Chief Appellate
Immigration Judge declined until 2019 to both provide notice ``if a
Board member consistently fails to meet the assigned deadlines for the
disposition of appeals'' and to ``prepare a report assessing the
timeliness of the disposition of cases by each Board member on an
annual basis''--and then declined again to do so between 2021 and 2024.
See generally EOIR, Policy Memorandum 25-04, Cancellation of Policy
Memorandum 21-16 2 & n.2 (Jan. 27, 2025), <a href="https://www.justice.gov/eoir/media/1386546/dl?inline">https://www.justice.gov/eoir/media/1386546/dl?inline</a> [<a href="https://perma.cc/NWE9-V7EN">https://perma.cc/NWE9-V7EN</a>].
Notwithstanding the reforms of the early 2000s, due to ``gross
mismanagement and poor leadership at the Board,'' by 2019, the Board's
case management system had become ``dysfunctional.'' See id. at 2.\4\
As a result, on August 26, 2020, the Department published a notice of
proposed rulemaking (``NPRM'' or ``proposed rule'') that proposed to
amend EOIR's regulations to address the Board's backlog. Appellate
Procedures and Decisional Finality in Immigration Proceedings;
Administrative Closure, 85 FR 52491, 52491 (Aug. 26, 2020) (``Appellate
Procedures NPRM''). The Appellate Procedures NPRM explained that
changes to various procedures were necessary due to significant
increases in the Board's backlog such that the Department needed ``to
again review the BIA's regulations to reduce any unwarranted delays in
the appeals process and to ensure the efficient use of BIA and EOIR
resources.'' Id. at 52492.
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\4\ Although these reforms were initially coupled with a
reduction in the number of authorized positions on the Board from 23
to 11 Appellate Immigration Judges, between 2006 and 2024, the
Department subsequently expanded the number of authorized positions
to 28 Appellate Immigration Judges. See generally Reducing the Size
of the Board of Immigration Appeals, 90 FR 15525, 15526 (Apr. 14,
2025). As before, a larger Board did not translate into a more
efficient Board, leading to a reduction in size to 15 authorized
Appellate Immigration Judge positions in 2025. Id. at 15526-27.
Additionally, also as before, that reduction is being coupled with
procedural reforms to the Board's procedures as represented by the
instant rulemaking.
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Among other changes, the Appellate Procedures NPRM proposed: (1)
simultaneous briefing schedules for both detained and non-detained
appeals before the Board; (2) shortening the reply brief deadline; (3)
limiting briefing extensions; (4) harmonizing the 90- and 180-day Board
adjudication timelines to both start from when the record is complete;
(5) limiting the Chief Appellate Immigration Judge's ability to hold a
group of cases while awaiting certain outside actions; and (6) removing
the process for Immigration Judge review of proceeding transcripts. See
85 FR 52491. The Department received 1,287 comments during the 30-day
comment period.\5\
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\5\ The Department posted 1,284 of the comments received for
public review. The Department did not post three of the comments
received because they were either non-substantive or duplicates of
other comments that were posted.
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On December 16, 2020, the Department published a final rule,
responding to comments received during the notice-and-comment period
and adopting the regulatory language proposed in the Appellate
Procedures NPRM with minor changes. See Appellate Procedures and
Decisional Finality in Immigration Proceedings; Administrative Closure,
85 FR 81588 (Dec. 16, 2020) (``Appellate Procedures Final Rule''). The
Appellate Procedures Final Rule's effective date was January 15, 2021,
but the rule was preliminarily enjoined on March 10, 2021, before its
measures were implemented fully. See Centro Legal de la Raza v. EOIR,
524 F. Supp. 3d 919 (N.D. Cal. 2021).
On September 8, 2023, after reconsidering the Appellate Procedures
Final Rule, including the comments received during that rulemaking and
the issues identified in the Centro Legal de la Raza litigation as well
as litigation in Catholic Legal Immigr. Network, Inc. v. EOIR, No. 21-
00094, 2021 WL 3609986 (D.D.C. Apr. 4, 2021), the Department published
an NPRM proposing to remove the preliminarily enjoined regulatory
language codified by the Appellate Procedures Final Rule, with certain
exceptions, as well as proposing standards for Immigration Judges and
Appellate Immigration Judges to consider when adjudicating requests for
the administrative closure or termination of proceedings. See Appellate
Procedures and Decisional Finality in Immigration Proceedings;
Administrative Closure, 88 FR 62242 (Sept. 8, 2023).
The Department finalized that rule in May 2024. See Efficient Case
and Docket Management in Immigration Proceedings, 89 FR 46742 (May 29,
2024) (``ECDM Final Rule''). As a result, the relevant regulatory
provisions of the Appellate Procedures Final Rule that are further
addressed in this IFR were rescinded, and the relevant regulatory text
was generally returned to its pre-Appellate Procedures Final Rule
baseline. See id. 46742. Notably, neither the NPRM nor the final rule
addressed the efficiency reasons the Department provided for those
measures in the Appellate Procedures Final Rule. Indeed, despite the
fact that the Board's backlog continued to grow, the 2024 rule enacted
no procedures aimed at increasing case completions.
[[Page 5270]]
IV. Reforms To Improve Appeal Processing
As described in Section III.B of this preamble, until 2021, with
various amounts of success, the Department has instituted measures to
address increasing case receipts by the Board and the backlog that has
accrued when the Board has been unable to keep up with them. However,
since 2021, despite a rapidly growing backlog, the only regulatory
measure taken to increase case completions was to further increase the
number of authorized Board members to 28. See Expanding the Size of the
Board of Immigration Appeals, 89 FR 22630 (Apr. 2, 2024).\6\ As the
Attorney General recently explained when decreasing the size of the
Board to 15 authorized members,
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\6\ Indeed, instead of defending appeal processing reforms EOIR
attempted to adopt in the Appellate Procedures Final Rule, as
explained in Section III.B of this preamble, those reforms were
removed from EOIR's regulations without addressing or mentioning the
Board's pending caseload. Moreover, prior Board leadership
mismanaged the existing Board processes, significantly contributing
to inefficiencies and the growing backlog. See EOIR, Policy
Memorandum 25-04, Cancellation of Policy Memorandum 21-16 (Jan. 27,
2025), <a href="https://www.justice.gov/eoir/media/1386546/dl?inline">https://www.justice.gov/eoir/media/1386546/dl?inline</a> [<a href="https://perma.cc/NWE9-V7EN">https://perma.cc/NWE9-V7EN</a>].
While the number of Board members authorized by regulation has
increased by 13 since 2015, the number of cases completed annually
by Board members has exceeded the total number completed in 2015
only three years since then, and the current projection for Fiscal
Year 2025 is that completions will be less than in Fiscal Year 2015.
. . . In short, the data available do not conclusively demonstrate
that the increased Board size will lead to increased case
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adjudications.
Reducing the Size of the Board of Immigration Appeals, 90 FR 15525,
15526 (Apr. 14, 2025).\7\
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\7\ The number of completions in fiscal year 2025 ultimately did
exceed the number in fiscal year 2015, by a little over 1000. See
EOIR, Adjudication Statistics: All Appeals Filed, Completed, and
Pending (Nov. 18, 2025), <a href="https://www.justice.gov/eoir/media/1344986/dl?inline">https://www.justice.gov/eoir/media/1344986/dl?inline</a> [<a href="https://perma.cc/88C5-MU4N">https://perma.cc/88C5-MU4N</a>]. Nevertheless, the larger
point was reinforced by the quarterly numbers. In the first quarter
of fiscal year 2025, the Board completed 8,405 cases with 28
Appellate Immigration Judges. In the fourth quarter of fiscal year
2025, the Board completed 11,473 cases with between 10 and 13
Appellate Immigration Judges (plus 6 temporary Appellate Immigration
Judges). In other words, the Board adjudicated considerably more
cases with fewer Appellate Immigration Judges.
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Indeed, between fiscal year 2015 and the end of fiscal year 2025,
the Board's pending case load increased more than five-fold--from
37,285 pending appeals to 202,946 pending appeals. EOIR, Adjudication
Statistics: All Appeals Filed, Completed, and Pending (Nov. 18, 2025),
<a href="https://www.justice.gov/eoir/media/1344986/dl?inline">https://www.justice.gov/eoir/media/1344986/dl?inline</a> [<a href="https://perma.cc/88C5-MU4N">https://perma.cc/88C5-MU4N</a>]. The Board is at a point where, even were it to have
additional resources and better management, without significant
reforms, it would not be able to keep up with incoming filings while
tackling the backlog in any meaningful way.
Given the unprecedented Board caseload, and the insufficiency of
the currently available tools to manage it, the Department has
reconsidered the Board's role as an appellate tribunal. The Board
cannot--and does not need to--adjudicate every case on the merits with
the tools at its disposal, including the ability for single Board
members to issue an AWO. Thus, rather than require such adjudications,
the Department is changing its regulations to provide the Board more
flexibility in reviewing appeals. Instead, for appeals taken from
decisions issued after this IFR becomes effective, as explained in
Section IV.A of this preamble, the default will be summary dismissal
unless a majority of current Board members vote to consider the appeal
on the merits. And such dismissals will occur quickly--within 15 days
of filing the appeal--allowing aliens to seek Federal court review
expeditiously, rather than potentially waiting for years for a Board
decision that in the vast majority of cases would affirm the underlying
Immigration Judge decision.\8\ This change in procedure will allow the
Board to focus its limited resources on adjudicating the more than
200,000 pending appeals and, going forward, on selecting decisions for
review that present novel issues warranting the Board's attention.
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\8\ Although the Board may remand a case for many reasons (e.g.
to update background checks or in response to an alien's request for
a remand to seek a new form of relief), it rarely sustains a party's
appeal on the merits. Between October 1, 2023, and September 15,
2025, the Board sustained only 123 out of 55,065 case appeals
(excluding interlocutory appeals, bond appeals, and appeals of
motion to reopen decisions) on the merits. Thus, regardless of which
party appeals, the Board generally agrees with the outcome of the
decision below.
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The IFR will also change the deadline for filing an appeal with the
Board from 30 to 10 days, except for cases involving certain asylum
applications, as discussed in more detail in Section IV.B of this
preamble. And, as explained in Sections IV.C and D of this preamble,
the IFR adopts other measures previously adopted by the 2020 Appellate
Procedures Final Rule, which were never fully operationalized, to
streamline the processes for obtaining the parties' briefs and
assembling the record on appeal.
These changes, individually and together, will streamline Board
appellate review so that aliens receive timely final decisions and do
not have to wait years to seek Federal court review.\9\ They will also
allow the Board to focus on addressing the backlog and, once it is
clear, on providing meaningful review in cases requiring Board
intervention.\10\
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\9\ The Department has considered the potential impacts of these
amendments individually and in context with the other amendments
made by this rule on aliens and attorneys appearing before EOIR. The
Department recognizes that this rule changes the status quo with
respect to appeal processing. The Department believes that the
benefits of this rule's streamlining efforts for the Government and
for those with meritorious claims outweigh the potential for costs
to those with non-meritorious claims who would have benefitted from
the delay and whose appeals may be subject to summary dismissal
under this IFR.
\10\ The Department recognizes that recent actions by Congress
to increase the filing fees for Board appeals to $900 may decrease
the number of incoming appeals to the Board. See One Big Beautiful
Bill Act (``OBBBA''), Public Law 119-21, sec. 100013(d) & (e), 139
Stat. 72 (2025). However, the OBBBA does not prohibit fee waivers
for appeals, so the impact of the fee increase may be minimal in
practice. Moreover, even if the impact were greater, the Department
nevertheless believes that these reforms are necessary to provide
EOIR the flexibility necessary to issue timely decisions on new
appeals. In any event, EOIR's preliminary experience since the
enactment of OBBBA is that the fee increase has not appreciably
affected the volume of appeals.
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A. Appellate Review by the Board
The Department has determined that the immigration adjudicatory
system would function more efficiently if the Board were given more
control over its appellate docket by summarily dismissing all appeals--
with two exceptions \11\--unless a majority of the permanent Board
members vote en banc to accept an appeal. Currently, unless subject to
the existing, enumerated reasons for summary dismissal, the Board
reviews all appeals on the merits even though there is no statutory
[[Page 5271]]
requirement for an appellate process or for all allowable appeals to
receive a decision on the merits. See Dia v. Ashcroft, 353 F.3d 228,
237 (3d Cir. 2003) (en banc) (noting the ``INA says nothing whatsoever
regarding the procedures of an administrative appeal, or, for that
matter, any other procedures employed by the BIA''). Although there is
an explicit reference to the Board in section 101(a)(47)(B) of the INA,
8 U.S.C. 1101(a)(47)(B), that reference merely establishes when an
order of removal becomes final, namely when the order is affirmed by
the Board or the time for filing an appeal has expired. Nothing in that
provision, however, requires the Board to adjudicate every appeal on
its merits; to the contrary, it is well established that the Board may
summarily dismiss an appeal without reaching the merits.\12\ See 8 CFR
1003.1(d)(2); accord Dia, 353 F.3d at 237 (``[8 U.S.C. 1101(a)(47)(B)]
says absolutely nothing about procedures to be employed by the BIA, or
the right to, or manner of, review generally; it only speaks to review
by the BIA and its `affirming' the `order' of deportation . . . . Based
on the fact that Sec. 1101(a)(47)(B) contains the only mention of the
BIA in the INA, it seems clear that Congress has left all procedural
aspects of the BIA, especially how it hears cases, entirely to the
Attorney General's discretion.'').
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\11\ The Board will continue to adjudicate all appeals under 8
CFR 1003.1(b)(7) and (14) on their merits unless subject to summary
dismissal under the regulations in place prior to this IFR to
provide an additional procedural safeguard for detained aliens. Such
appeals are effectively the end of the process available to detained
aliens given that there is no petition for review available from a
Board's decision on a bond appeal. See INA 242(a)(1), 8 U.S.C.
1252(a)(1) (allowing for petitions for review of final orders of
removal). The Board will also continue to adjudicate appeals of
decisions under 8 CFR 1003.1(b)(5) on certain actions related to
immigrant visa petitions under section 204 and 205 of the INA, 8
U.S.C. 1154 and 1155, and under 8 CFR 1003.1(b)(6) on applications
for the exercise of the discretionary authority contained in section
212(d)(3) of the INA, 8 U.S.C. 1182(d)(3), under existing
procedures. Those cases are not yet fully amenable to electronic
filing procedures and are also subject to special filing procedures
in which the appeal is filed first with DHS and then routed to the
Board by DHS. See 8 CFR 1003.3.3(a)(2). For similar reasons, the
Board's existing filing, briefing, and forwarding-the-record
procedures will continue to apply to appeals from decisions of DHS
officers. Such appeals make up only a small fraction of the Board's
caseload, and any benefits from applying streamlined procedures to
those appeals would be minimal.
\12\ The Department also notes that at the time Congress enacted
section 101(a)(47)(B) of the INA, 8 U.S.C. 1101(a)(47)(B), the
Board's regulatory scheme permitted summary dismissal of appeals.
See 8 CFR 3.1(d)(1-a), 103.3(a)(1)(v) (1996); Executive Office for
Immigration Review; Rules of Procedures, 57 FR 11568, 11570, 11573
(Apr. 6, 1992). There is no evidence that Congress intended section
101(a)(47)(B) of the INA, 8 U.S.C. 1101(a)(47)(B), to displace that
process.
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Importantly, because a summary dismissal ``shall constitute the
final decision of the Board,'' 8 CFR 1003.1(d)(2)(iii) (as amended by
this IFR), the Board's summary dismissal provisions--and this rule's
expansion of them--do not cause any difficulty for implementing the
statute or other regulatory provisions, such as the statutory and
regulatory provisions that govern when a removal order becomes final.
See INA 101(a)(47)(B), 8 U.S.C. 1101(a)(47)(B); 8 CFR 1241.1 (setting
forth when a removal order resulting from section 240 removal
proceedings becomes final). When an appeal is summarily dismissed under
the provisions added by this rule, the Department intends that the
Immigration Judge's decision become the final agency decision for
purposes of Federal court review unless the Attorney General exercises
discretion to review under 8 CFR 1003.1(h). In any petition for review
of a final removal order under section 242(a)(1) of the INA, 8 U.S.C.
1252(a)(1), the Department expects that the court of appeals would
review the substance of the Immigration Judge's decision as the basis
for the final order. This view would not change any existing
understandings regarding when a removal order becomes final or when a
petition for review must be filed.
Notably, the courts of appeals that have reviewed challenges to the
Board's prior streamlining process have uniformly concluded that aliens
have no constitutional or statutory right to a particular form or
manner of a Board decision. See Zhang v. U.S. Dep't of Justice, 362
F.3d 155, 157-58 (2d Cir. 2004); Yuk v. Ashcroft, 355 F.3d 1222, 1229-
32 (10th Cir. 2004); Dia, 353 F.3d at 242; Denko v. INS, 351 F.3d 717,
729-30 (6th Cir. 2003); Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-
51 (9th Cir. 2003); Khattak v. Ashcroft, 332 F.3d 250, 252-53 (4th Cir.
2003); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza
v. U.S. Att'y Gen., 327 F.3d 1283, 1288-89 (11th Cir. 2003); Albathani
v. INS, 318 F.3d 365, 376-77 (1st Cir. 2003). Indeed, it has long been
the Department's view that there is no statutory right or law requiring
a particular form of decision or method of review before the Board. 67
FR 54883, 54888-90. Because the Board is established under the Attorney
General's regulations, she ``is free to tailor the scope and procedures
of administrative review of immigration matters as a matter of
discretion.'' 67 FR 54882 (citing, e.g., Vt. Yankee Nuclear Power Corp.
v. NRDC, 435 U.S. 519, 524-25 (1978)); see Vt. Yankee, 435 U.S. at 524-
25 (``administrative agencies should be free to fashion their own rules
of procedure and to pursue methods of inquiry capable of permitting
them to discharge their multitudinous duties'' (quoting FCC v.
Pottsville Broad. Co., 309 U.S. 134, 143 (1940))).
This change will allow the Board to focus on appeals with
particularly novel or complex legal questions without becoming bogged
down in mine-run or straightforward cases that may already be subject
to being affirmed without an opinion or summarily affirmed. Indeed, due
to years of mismanagement and the accretion of a sizeable backlog of
cases, as discussed in Sections III.B and IV of this preamble,\13\ the
Board largely functions now as simply a vessel for further delay of the
eventual resolution of an alien's case. Further, the change would also
help offset a peculiar asymmetry in immigration proceedings--i.e.,
aliens may seek Federal court review of Board decisions, but DHS
cannot--by ensuring that aliens do not amplify any procedural
advantages they have over the Government with additional opportunities
to necessarily bring meritless appeals with attendant delays.
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\13\ Between fiscal year 2015 and the end of fiscal year 2025,
the Board's pending case load increased more than five-fold--from
37,285 pending appeals to 202,946 pending appeals. EOIR,
Adjudication Statistics: All Appeals Filed, Completed, and Pending
(Nov. 18, 2025), <a href="https://www.justice.gov/eoir/media/1344986/dl?inline">https://www.justice.gov/eoir/media/1344986/dl?inline</a> [<a href="https://perma.cc/88C5-MU4N">https://perma.cc/88C5-MU4N</a>].
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The Department recognizes that this IFR represents a notable
procedural change to how the Board has operated; however, in
recognition of that point, this change will apply only prospectively
and not to appeals pending when the rule becomes effective. Instead, it
will apply only to decisions otherwise subject to appeal that are
issued by either an Immigration Judge or DHS on or after the rule's
effective date. Because there is no right to a merits adjudication of
any appeal in the first instance, and because the rule does not change
the process for aliens who submitted an appeal with the expectation of
receiving a different process, this change will not undermine any
reliance interests of either an alien or DHS. Indeed, there is no
evidence that DHS initiates a case in immigration proceedings or an
alien brings a claim for relief or protection from removal based on the
availability of an appeal to the Board if they lose, nor is there any
logical reason that either party would do so. And, to be clear, the
change applies equally to appeals filed by both DHS and aliens, so
neither side will be procedurally advantaged or disadvantaged by the
change.\14\
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\14\ The Department also does not expect this change to cause a
significant increase in petitions for review filed with Federal
Courts of Appeals, and there is no logical reason to expect this IFR
to change parties' behavior in that regard. For instance, cases that
would have otherwise been decided by the Board in the alien's favor
cannot be reviewed by Federal courts anyway; so, the dismissal of
such appeals under this IFR will have no impact on Federal court
filings based on those cases. Similarly, aliens who would have
previously petitioned for review of an adverse Board decision will
still be expected to do so; so, again, the dismissal of such appeals
under this IFR should have no impact on the net volume of appeals
over time. Even if, as the Department believes, this change in the
appeals process is unlikely to change the rate at which aliens
petition courts of appeals for review of Board decisions, the
Department acknowledges that the IFR's goal is to increase the
number of appeal decisions issued per year, which will potentially
lead to an increase in the number of petitions for review filed per
year. This potential does not outweigh the Department's significant
interest in timely adjudications.
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[[Page 5272]]
B. Time To File an Appeal With the Board
Prior to this IFR, individuals who wished to appeal a case to the
Board typically had 30 days in which to do so. See, e.g., 8 CFR
1003.38(b) (2025). However, that deadline is not set by statute, with
one exception related to asylum applications at section
208(d)(5)(A)(iv) of the INA, 8 U.S.C. 1158(d)(5)(A)(iv). The Department
has reconsidered the appeal timeline before the Board, and is now
reducing the appeal period from 30 days to 10 days for all cases,
except for those cases where the alien's asylum application was denied
on grounds other than those specified in section 208(a)(2)(A), (B), or
(C) of the INA, 8 U.S.C. 1158(a)(2)(A), (B), (C). Those three
subparagraphs bar an alien from applying for asylum where: (1) the
alien may be removed to a country other than their country of
nationality pursuant to a bilateral or multilateral agreement commonly
referred to as an Asylum Cooperative Agreement (``ACA''), INA
208(a)(2)(A), 8 U.S.C. 1158(a)(2)(A); (2) the alien cannot show by a
preponderance of the evidence that his or her application has been
filed within one year after the date of the alien's arrival in the
United States, subject to narrow exceptions, INA 208(a)(2)(B), 8 U.S.C.
1158(a)(2)(B); or (3) the alien has previously applied for asylum and
had such application denied, subject to narrow exceptions, INA
208(a)(2)(C), 8 U.S.C. 1158(a)(2)(C).\15\ See 8 CFR 1003.38(b).
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\15\ In order to comply with the statute, the Department is
retaining the 30-day appeal period for appeals involving the denial
of an asylum application on grounds other than those specified in
section 208(a)(2) of the INA, 8 U.S.C. 1158(a)(2). See INA
208(d)(5)(A)(iv), 8 U.S.C. 1158(d)(5)(A)(iv) (stating that ``any
administrative appeal [involving consideration of an asylum
application] shall be filed within 30 days of a decision granting or
denying asylum, or within 30 days of the completion of removal
proceedings before an [I]mmigration [J]udge under section 240,
whichever is later''). However, where an alien is ineligible to
apply for asylum due to the application of an ACA, failure to apply
within one year of entry, or because he or she has previously been
denied asylum, the Department is applying the 10-day appeal period
in this IFR. The statute is clear that the asylum procedures in
section 208(d) of the INA, 8 U.S.C. 1158(d)--including the 30-day
administrative appeal period language in section 208(d)(5)(A)(iv) of
the INA, 8 U.S.C. 1158(d)(5)(A)(iv)--only applies to asylum
applications ``filed under paragraph (a).'' See INA 208(d)(1), 8
U.S.C. 1158(d)(1). In turn, paragraph (a)(1)'s general authority for
aliens to apply for asylum can be barred by application of any of
the three bars in paragraph (a)(2), each of which specify that
paragraph (1) ``shall not apply'' to aliens subject to those bars.
INA 208(a)(2)(A)-(C), 8 U.S.C. 1158(a)(2)(A)-(C). Therefore, when an
application for asylum is denied based on one of the three bars in
paragraph (a)(2), the alien is then barred from applying for asylum
under paragraph (a)(1) and, as a result, the asylum procedures in
subsection (d)--including the 30-day administrative appeal period
language specific to asylum applications--do not apply.
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The Department is reducing the appeal period for a number of
reasons. For example, with the Board's adoption of electronic filing in
2021, which allows parties to submit Notices of Appeal at any time of
day from any location with internet access, removing concerns related
to mail delays and the restrictions business hours create to meet
filing deadlines, there is no operational need for it. Further, that
deadline differs from other EOIR administrative appellate deadlines.
See, e.g., 28 CFR 68.54(a) (requiring an appeal to the Chief
Administrative Hearing Officer be filed within 10 days of a decision of
an Administrative Law Judge); cf. 8 CFR 1003.6(c)(1) (requiring DHS to
file an appeal within 10 days of an Immigration Judge's order to
maintain an automatic stay of a custody redetermination order pursuant
to 8 CFR 1003.19(i)).
In short, there is no reason to maintain a 30-day appeal deadline
(except for certain asylum appeals discussed in this section), and the
Department, as a matter of policy, is electing to change the appeal
filing deadline to 10 days in order to improve the efficient
consideration of appeals and to harmonize appellate deadlines across
the agency. See 28 CFR 68.54(a) (establishing a 10-day deadline for
seeking review of an Administrative Law Judge's final order in certain
categories of cases adjudicated by EOIR's Office of the Chief
Administrative Hearing Officer). Again, this change will apply only
prospectively to appeals of Immigration Judge decisions issued on or
after the effective date of this IFR. Because there is no right to a
merits adjudication of any appeal in the first instance--and because
there is no evidence that an alien or DHS would make any decisions
relating to their litigation of the case before the Immigration Judge
based on the amount of time available to appeal a potential future
adverse decision--this change will not undermine any reliance interests
of either an alien or DHS. As with other changes, this change also
applies equally to both DHS and aliens, so neither side will be
procedurally advantaged or disadvantaged by the change.\16\
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\16\ The Department acknowledges that some aliens proceed pro se
before the Immigration Judge and may seek counsel after an adverse
decision and that in those circumstances changing the deadline from
30 to 10 days, except for asylum appeals by aliens not barred from
applying, may impact their ability to obtain counsel to file a
Notice of Appeal. The Department notes that aliens in such a
position have already had time to obtain counsel for their
proceedings before the Immigration Judge. Additionally, such aliens
are advised of their appeal rights and the appeal deadline by the
Immigration Judge and may file a Notice of Appeal without counsel.
If the Board decides to consider the appeal, the alien will have had
additional time to obtain counsel for that appeal. If instead their
appeal is summarily dismissed, they may proceed to file a petition
for review with a Federal court within 30 days of that dismissal,
see INA 242(b)(1), 8 U.S.C. 1252(b)(1), providing them up to 55 days
to obtain counsel. Nevertheless, the Department has considered the
potential that the rule may impact some aliens' ability to obtain
counsel for their appeal or petition for review. The Department
believes that the interest in timely adjudications outweighs those
potential concerns. Similarly, the Department recognizes that some
aliens whose cases are subject to the 10-day appeal period in this
IFR may seek counsel to assist with their appeals after they receive
a removal order and that, for those aliens, decreasing the appeal
period to 10 days may make it more difficult for them to find
counsel. The Department also recognizes that if such aliens notice
an appeal and obtain counsel after the 10-day period, they may not
have an opportunity to submit briefing as their appeal may be
summarily dismissed under this rule. The Department believes this
population will be relatively small but has nevertheless considered
the potential impact on such aliens' ability to obtain counsel for
appeal. The Department believes that the benefits of the reforms in
this rule outweigh that potential impact, especially given that such
aliens would have had time prior to the removal order to seek the
assistance of counsel. Additionally, the Department notes that the
potential for dismissal before briefing is not new with this rule--
even without it, the Board may summarily dismiss an appeal for
multiple reasons, including if the Board is satisfied ``that the
appeal is filed for an improper purpose, such as to cause
unnecessary delay'' or because the Board believes ``the appeal lacks
an arguable basis in fact or in law.'' 8 CFR 1003.1(d)(2)(i)(D).
Regardless, when considering whether to summarily dismiss an appeal,
the Board will consider the entire record before it and come to an
independent determination whether to consider the appeal on the
merits or to summarily dismiss.
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C. Briefing
The IFR also standardizes the Board's briefing schedule for appeals
filed directly with the Board to require simultaneous briefing within
20 days of the Board setting the schedule in all cases not summarily
dismissed, with no reply briefs and limited extensions.
The Department acknowledges that requiring simultaneous briefing
for both detained and non-detained cases is a departure from the
current status quo, which was re-implemented by the ECDM Final Rule.
See 89 FR 46743 (explaining that the ECDM Final Rule ``recodifies
longstanding [briefing] practices in place prior to the publication of
[the Appellate Procedures] Final Rule and which have again been in use
since the [Appellate Procedures] Final Rule was enjoined''). However,
as has been borne out by the ever-expanding pending caseload,
maintaining the status quo for briefing schedules does not promote the
timely resolution of cases before the Board.\17\
[[Page 5273]]
Rather, the Department now believes that for all cases not summarily
dismissed--whether detained or non-detained--a ``simultaneous briefing
schedule provides both parties sufficient opportunity to address any
issues needed to be resolved on appeal or to identify any reasons for
opposing the appeal, while balancing the need to expeditiously resolve
the case.'' Id.
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\17\ The Department also notes that the ECDM Final Rule did not
persuasively address the basic question of why simultaneous briefing
is appropriate for one set of cases but not another. Moreover, the
Department notes that the Board continues to retain the discretion
to request supplemental briefing in any case where it feels it would
be appropriate. See 8 CFR 1003.3(c).
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In the ECDM Final Rule, the Department also noted that
``simultaneous briefing is appropriate in detained cases given the need
for expeditious resolution of such cases implicating liberty
interests.'' Id. However, the Department no longer believes that
expeditious resolution should be limited to detained cases but, rather,
should be the default in all cases to promote finality in proceedings.
See Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034, 1042 (5th Cir.
1997) (citing Abudu v. INS, 485 U.S. 94, 106-08 (1988)) (``Both the
public and the Board have significant, cognizable interests in the
finality of immigration proceedings.''). This is consistent with
Congress's repeated use of time limits in the INA to evince its clear
intent for immigration proceedings to move expeditiously. See, e.g.,
INA 208(d)(5)(A)(ii)-(iii), 8 U.S.C. 1158(d)(5)(A)(ii)-(iii) (time
limits on asylum adjudications); INA 240(c)(6)-(7), 8 U.S.C.
1229a(c)(6)-(7) (time limits on motions to reopen and reconsider).
Currently, the Board operates a hodgepodge of briefing schedules
with different time limits, depending on whether the case involves a
detained alien and whether an extension is granted. The Board often
accepts reply briefs, extending the time for briefing further, although
in the Board's experience, such reply briefs rarely, if ever,
positively contribute to the arguments at issue. One standard schedule
is more consistent, easier to administer, and precludes gamesmanship or
manipulation by the parties, particularly by aliens seeking delay of
the resolution of their cases. Cf. INS v. Doherty, 502 U.S. 314, 323
(1992) (``as a general matter, every delay works to the advantage of
the deportable alien who wishes merely to remain in the United
States''). Moreover, the Board already has the authority to set swifter
briefing schedules than its current 21-day schedule, see 8 CFR
1003.3(c) (2025) (noting the general setting of a 21-day briefing
schedule ``unless a shorter period is specified by the Board''), so the
reduction by one day will not have a significant impact on the parties,
particularly because the change is only applied prospectively.\18\
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\18\ This change will only be applied to appeals of Immigration
Judge decisions issued on or after the effective date of the IFR.
---------------------------------------------------------------------------
The IFR also limits extensions which, despite a putative policy
disfavoring them, see EOIR Policy Manual, pt. III, ch. 4.7(c)(1) (last
visited Jan. 30, 2026), <a href="https://www.justice.gov/eoir/reference-materials/bia/chapter-4/7">https://www.justice.gov/eoir/reference-materials/bia/chapter-4/7</a> [<a href="https://perma.cc/66J6-RWQV">https://perma.cc/66J6-RWQV</a>], became an
expectation based on Board routine in recent years. The Department
recognizes that unexpected circumstances do arise, however.
Consequently, the IFR authorizes extensions in cases of exceptional
circumstances, as defined by section 240(e)(1) of the INA, 8 U.S.C.
1229a(e)(1) (``The term `exceptional circumstances' refers to
exceptional circumstances (such as battery or extreme cruelty to the
alien or any child or parent of the alien, serious illness of the
alien, or serious illness or death of the spouse, child, or parent of
the alien, but not including less compelling circumstances) beyond the
control of the alien.''). In short, for exceptional circumstances
beyond the control of a party, the Board retains authority to grant an
extension.
The Department also recognizes that, because these briefing
procedures will apply when the Board has not summarily dismissed the
case, such cases may present important or novel issues for the Board to
resolve on appeal. Thus, this rule does not preclude the Board from
exercising its expertise to determine whether to request or accept
additional briefing to resolve the appeal. See 8 CFR 1003.3(c) (``In
its discretion, the Board may request supplemental briefing from the
parties after the expiration of the briefing deadline.''); EOIR Policy
Manual, pt. III, ch. 4.6(i) (last visited Jan. 30, 2026), <a href="https://www.justice.gov/eoir/reference-materials/bia/chapter-4/6">https://www.justice.gov/eoir/reference-materials/bia/chapter-4/6</a> [<a href="https://perma.cc/2QPY-HB5N">https://perma.cc/2QPY-HB5N</a>] (discussing amicus curiae briefs); see also EOIR,
Agency Invitations to File Amicus Briefs (Sept. 10, 2025), <a href="https://www.justice.gov/eoir/amicus-briefs">https://www.justice.gov/eoir/amicus-briefs</a> [<a href="https://perma.cc/6R64-8GAM">https://perma.cc/6R64-8GAM</a>]
(explaining that EOIR ``occasionally invites members of the public to
file amicus curiae briefs addressing issues of significance'' and
allowing members of the public to subscribe to receive such
invitations).
D. Forwarding the Record on Appeal
The Department is also revising 8 CFR 1003.5 regarding the
forwarding of the record of proceedings in an appeal to reflect
changing procedures and to provide maximum flexibility in ensuring the
record is forwarded as quickly as possible. The present process in 8
CFR 1003.5(a) is largely unnecessary and only creates unwarranted
delay. For instance, the current regulations allocate time for
Immigration Judges to review and approve transcripts of their oral
decisions. 8 CFR 1003.5(a). But this is not necessary because EOIR
utilizes reliable digital audio recording technology that produces
clear audio recordings and more accurate transcriptions, see, e.g.,
Press Release, EOIR Completes Digital Audio Recording Implementation
(Sept. 2, 2010), <a href="https://www.justice.gov/sites/default/files/pages/attachments/2015/08/20/eoircompletesdar09022010.pdf">https://www.justice.gov/sites/default/files/pages/attachments/2015/08/20/eoircompletesdar09022010.pdf</a> [<a href="https://perma.cc/EMK4-QSY9">https://perma.cc/EMK4-QSY9</a>] (``This new system improves the quality of recordings and
transcriptions through the use of more microphones throughout each
courtroom.''), and the additional 7- or 14-day review period creates an
unnecessary delay in the adjudication of appeals. Moreover, because
errors should not be corrected during the review, see, e.g., Mamedov v.
Ashcroft, 387 F.3d 918, 920 (7th Cir. 2004) (``[I]n general it is a bad
practice for a judge to continue working on his opinion after the case
has entered the appellate process . . . .''); because EOIR already has
a procedure for the parties to address defective or inaccurate
transcripts on appeal, EOIR Policy Manual, pt. III, ch. 4.2(f)(3) (last
visited Jan. 30, 2026), <a href="https://www.justice.gov/eoir/reference-materials/bia/chapter-4/2">https://www.justice.gov/eoir/reference-materials/bia/chapter-4/2</a> [<a href="https://perma.cc/U66Z-QP7P">https://perma.cc/U66Z-QP7P</a>], and because the
Board may remedy defects through a remand for clarification or
correction if necessary, 8 CFR 1003.1(e)(2), there is no operational
reason for Immigration Judges to continue to review transcripts of
their decisions solely for minor typographical errors. Accord
Witjaksono v. Holder, 573 F.3d 968, 976 (10th Cir. 2009) (``When an
alien follows the[ ] procedures [for redressing an incomplete
transcript], the BIA is able to evaluate whether the `gaps [in the
transcript] relate to matters material to [the] case and [whether] they
materially affect [the alien's] ability to obtain meaningful review.'
Moreover, if the BIA concludes that a defective transcript did not
cause prejudice, these procedures create a record that facilitates the
meaningful and effective judicial review to which a petitioner is
entitled.'' ((first alteration added) (internal citation omitted)).
[[Page 5274]]
Further, such review also takes Immigration Judges away from their
primary duty of adjudicating cases expeditiously and impartially,
consistent with the law. See EOIR, About the Office: EOIR Mission (May
29, 2025), <a href="https://www.justice.gov/eoir/about-office">https://www.justice.gov/eoir/about-office</a> [<a href="https://perma.cc/9XQ7-65DC">https://perma.cc/9XQ7-65DC</a>] (``The primary mission of . . . EOIR[ ] is to adjudicate
immigration cases by fairly, expeditiously, and uniformly interpreting
and administering the Nation's immigration laws.''); EOIR Policy
Manual, pt. I, ch. 1.2(a) (last visited Jan. 30, 2026), <a href="https://www.justice.gov/eoir/reference-materials/ic/chapter-1/2">https://www.justice.gov/eoir/reference-materials/ic/chapter-1/2</a> [<a href="https://perma.cc/X5WU-FV74">https://perma.cc/X5WU-FV74</a>] (``Immigration Judges are tasked with resolving
cases in a manner that is timely, impartial, and consistent with the
Immigration and Nationality Act, federal regulations, and precedent
decisions of the Board of Immigration Appeals and federal appellate
courts.''). Finally, Federal courts have criticized the practice of
Immigration Judges revising transcripts after an appeal has been filed.
See Mamedov, 387 F.3d at 920. Accordingly, there is simply no reason to
retain the requirement that Immigration Judges continue to review
transcripts, and removing this requirement will also eliminate the
possibility of the transcript being amended incorrectly, even
inadvertently, after a decision has been rendered.
E. Other Changes
The Department is revising EOIR's regulations at 8 CFR
1003.1(e)(8)(ii) and removing and reserving 8 CFR 1003.1(e)(8)(iii),
two provisions that authorize the Chief Appellate Immigration Judge to
either extend adjudication deadlines in particular cases or to hold
cases based on a pending, potentially impactful action, either a new
binding case decision or a new regulatory action. The former provision
has no clear underlying rationale consistent with principles of good
government and effective adjudication and simply provides a method for
the Chief Appellate Immigration Judge to delay cases at whim, either to
avoid applying established regulatory adjudicatory timeframes or to
effectuate policy goals of delaying cases. In short, there is no
persuasive reason to maintain the provision, and the Department is
revising 8 CFR 1003.1(e)(8)(ii) accordingly. For similar reasons, the
Department is removing and reserving 8 CFR 1003.1(e)(8)(iii). It is
impractical because it requires predicting the outcomes of pending
court cases; it has rarely, if ever, been used in practice; and it
allows the Chief Appellate Immigration Judge to delay cases based on
personal legal assessment with little oversight or concern for the
importance of prompt case adjudications.
The Department is revising various other provisions in 8 CFR 1003.6
and 1003.38 to make conforming changes based on the changes described
above. It is also making technical amendments to 8 CFR 1003.38 to
correct outdated regulatory cross-references.
Finally, the Department is making changes to 8 CFR 1003.1, 1003.18,
1003.42, 1003.55, 1208.31, 1208.35, and 1240.26 to change the term
``noncitizen'' to ``alien'' and the term ``unaccompanied child'' or
``unaccompanied children'' to ``unaccompanied alien child'' or
``unaccompanied alien children'', as appropriate, in accordance with
EOIR's efforts to conform to statutory terminology. See Designation of
Temporary Immigration Judges, 90 FR 41886-87 (Aug. 28, 2025).
F. Severability
To the extent that any portion of this rule is stayed, enjoined,
not implemented, or otherwise held invalid by a court, the Department
intends for all other parts of the rule that are capable of operating
in the absence of the specific portion that has been invalidated to
remain in effect. Each change may operate independently of the others
and would be unaffected if any other part of the rule were enjoined.
V. Regulatory Requirements
A. Administrative Procedure Act
Notice and comment pursuant to the Administrative Procedure Act
(``APA'') are unnecessary for at least two independent reasons.
First, this is a rule of agency organization, procedure, or
practice. See 5 U.S.C. 553(b)(A). Rules are procedural ``if they are
`primarily directed toward improving the efficient and effective
operations of an agency.' '' AFL-CIO v. NLRB, 57 F.4th 1023, 1034 (D.C.
Cir. 2023) (quoting Mendoza v. Perez, 754 F.3d 1002, 1022 (D.C. Cir.
2014)); see also James V. Hurson Assocs. Inc., Inc. v. Glickman, 229
F.3d 277, 280 (D.C. Cir. 2000) (procedural rules ``may alter the manner
in which the parties present themselves or their viewpoints to the
agency''). This rule affects only the practices and procedures of the
Board, and they are undoubtedly directed toward improving the efficient
and effective operations of the Board.
To be sure, although any rule that ``alter[s] the rights or
interests of parties'' is not ``procedural,'' James V. Hurson, 229 F.3d
at 280, there is no right to an appeal to the Board based on any
particular timeframe nor is there a right to a specific briefing
schedule or manner of consideration. Indeed, there is no clear
statutory right to an appeal to the Board at all, and even if there
were, there is no statutory right to file a brief in such appeal.
Because the rule applies only prospectively, it cannot alter any
parties' interests either because there is no evidence that either DHS
or an alien bases their choices in immigration proceedings on the
future prospect of an appeal to the Board.
Rules that merely make ``judgment[s] about what mechanics and
processes are most efficient'' are procedural even if they have
``impacts on outcomes.'' JEM Broad. Co., Inc., v. FCC, 22 F.3d 320, 328
(D.C. Cir. 1994). This IFR does no more than make such judgments. A
rule streamlining Board procedures for adjudicating appeals,
particularly when designed to effectuate the most efficient processes
for such adjudications, is fairly seen as procedural in the sense of 5
U.S.C. 553(b)(A). Accordingly, as a rule of agency procedure--or
practice--the IFR is exempt from the notice-and-comment procedures in 5
U.S.C. 553(b)(A).
Second, the requirements of 5 U.S.C. 553 do not apply to these
regulatory changes because this rule involves a ``foreign affairs
function of the United States.'' 5 U.S.C. 553(a)(1). Courts have held
that this exception applies when the rule in question ``clearly and
directly involves a foreign affairs function.'' E.B. v. U.S. Dep't of
State, 583 F. Supp. 3d 58, 63 (D.D.C. 2022) (cleaned up). In addition,
although the text of the APA does not require an agency invoking this
exception to show that such procedures may result in ``definitely
undesirable international consequences,'' some courts have required
such a showing. See Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008)
(quotation marks omitted). This rule satisfies both standards.
This IFR is intended to facilitate EOIR's ability to more
effectively adjudicate the removability of millions of illegal aliens
currently in the United States and to reach a final adjudication of
removal more efficiently and quickly for those who have no valid claim
to relief or protection in the United States. Improving the efficiency
of EOIR proceedings will, in turn, create disincentives for aliens to
enter the United States unlawfully in the future as they will no longer
be able to rely on an expectation of significant delays in their
proceedings, at least at the administrative appellate level. Another
recent IFR issued in part by EOIR
[[Page 5275]]
spelled out clear reasons for invoking the foreign affairs exception to
notice and comment under the APA, and nearly all of those reasons also
apply to this IFR. See Imposition and Collection of Civil Penalties for
Certain Immigration-Related Violations, 90 FR 27439, 27454-56 (June 27,
2025). Specifically, moving forward with actions like this IFR
immediately will allow the United States Government to build on
momentum with international partners to address shared challenges to
border security and illegal immigration. The United States' border
management strategy is predicated on the belief that migration is a
shared responsibility among all countries in the region, and Executive
Order 14150, America First Policy Directive to the Secretary of State,
sets out the President's vision that ``the foreign policy of the United
States shall champion core American interests and always put America
and American citizens first.'' 90 FR 8337 (Jan. 20, 2025). In this
regard, the Administration is actively engaged in negotiations
including wide-ranging discussions with foreign partners on matters
related to border security, such as to reduce illegal immigration and
advance security in the United States and the region. See, e.g., 90 FR
27454-55 & nn.48-55 (discussing the Administration's efforts).\19\
---------------------------------------------------------------------------
\19\ See also Agreement Between the Government of the United
States of America and the Government of the Republic of Honduras for
Cooperation in the Examination of Protection Requests, 90 FR 30076
(July 8, 2025); Agreement Between the Government of the United
States of America and the Government of the Republic of Guatemala
Relating to the Transfer of Nationals of Central American Countries
to Guatemala, 90 FR 31670 (July 15, 2025); Agreement Between the
Government of the United States of America and the Government of the
Republic of Uganda for Cooperation in the Examination of Protection
Requests, 90 FR 42597 (Sept. 3, 2025); Agreement Between the
Government of the United States of America and the Government of the
Republic of Ecuador Relating to the Transfer of Third-Country
Nationals to Ecuador, 90 FR 51376 (Nov. 17, 2025); Agreement between
the U.S. Department of Homeland Security and the U.S. Department of
State and the Paraguayan National Commission for Stateless Persons
and Refugees, 90 FR 60114 (Dec. 23, 2025).
---------------------------------------------------------------------------
For its foreign policy efforts to succeed in this regard, the
United States must demonstrate its own willingness to put in place
appropriate measures like this IFR that will allow EOIR to more
effectively use available tools to disincentivize, prepare for, and
respond to ongoing migratory challenges and illegal immigration. This
IFR is one part of this Administration's efforts to reduce illegal
immigration to the United States, by using all available tools under
the INA to deter aliens from making the dangerous journey to the United
States and entering the country illegally. Such efforts will
demonstrate to international partners the United States's commitment to
addressing challenges related to deterring illegal migratory movements.
Failing to address challenges related to illegal immigration and reduce
delays in the removal process will likely have significant foreign
affairs implications by creating incentives for large numbers of
migrants to make the dangerous journey to the southern border of the
United States through other countries, as occurred under the last
Administration.\20\ Therefore, delaying implementation of measures like
this IFR to combat and deter illegal migration could create migratory
challenges for foreign partners and undermine the momentum that this
Administration has built with foreign partners towards addressing their
shared migratory and border security challenges.
---------------------------------------------------------------------------
\20\ See, e.g., Securing the Border, 89 FR 81156, 81186 (Oct. 7,
2024) (noting that when there is a strain on resources due to a
large number of aliens crossing the southern border illegally this
situation creates ``incentives for migrants to make the dangerous
journey to the southern border in the hope that the overwhelmed and
under-resourced immigration system will not be able to expeditiously
process them for removal'').
---------------------------------------------------------------------------
Moreover, the Administration is actively engaged in negotiations
with other countries intended to address the large number of illegal
aliens in the United States. These efforts also include coordination
with other countries to support the Administration's efforts to
encourage aliens to depart the United States voluntarily and return to
their home countries.\21\ In sum, these actions indicate that the
removal and voluntary return of aliens with no legal right to remain in
the United States is a critical foreign policy objective of the United
States.
---------------------------------------------------------------------------
\21\ For example, on May 19, 2025, DHS conducted a voluntary
charter flight form the United States to Honduras and Colombia, in
coordination with those Governments, for aliens who opted to self-
deport. See DHS, Project Homecoming Charter Flight Brings Self-
Deporters to Honduras, Colombia (May 19, 2025), <a href="https://www.dhs.gov/news/2025/05/19/project-homecoming-charter-flight-brings-self-deporters-honduras-colombia/">https://www.dhs.gov/news/2025/05/19/project-homecoming-charter-flight-brings-self-deporters-honduras-colombia/</a> [<a href="https://perma.cc/VXP9-6DSF">https://perma.cc/VXP9-6DSF</a>]. The
participants were welcomed by representatives from their home
governments, who also provided benefits and services to those
aliens. See id.
---------------------------------------------------------------------------
Here too, for these foreign policy efforts to succeed, the United
States must demonstrate that it is taking immediate action, including
through measures like this IFR, to help achieve the purpose of these
international efforts and negotiations: to streamline the removal
process and encourage other countries to cooperate with the United
States's efforts to remove illegal aliens and support the return of
their citizens. By 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.
Delaying measures like those adopted by this IFR would have
undesirable consequences on the United States's ongoing foreign policy
goals. Quite simply, if the United States is unable to demonstrate,
through measures like this IFR, that it is committed to taking quick
and robust action to remove aliens and encourage them to depart the
United States, which depends on international cooperation, countries
may be less inclined to engage with the United States on these ongoing
efforts in the future.
Executive Order 14150 of January 20, 2025, America First Policy
Directive to the Secretary of State, clearly sets out the President's
vision that ``the foreign policy of the United States shall champion
core American interests and always put America and American citizens
first.'' E.O. 14150, 90 FR 8337 (Jan. 20, 2025). In addition, the
Secretary of State recently determined ``that all efforts, conducted by
any agency of the federal government, to control the status, entry, and
exit of people, and the transfer of goods, services, data, technology,
and other items across the borders of the United States'' constitute a
foreign affairs function of the United States under the APA.
Determination: Foreign Affairs Functions of the United States, 90 FR
12200 (Mar. 14, 2025). In making this determination, the Secretary of
State explained that ``[s]ecuring America's borders and protecting its
citizens from external threats is the first priority foreign affairs
function of the United States'' and noted that an unsecured border
presents a range of threats to U.S. citizens, which can be eliminated
or mitigated through the execution of the foreign affairs functions.
See id. This rule's efforts to reduce inefficiencies, the appeal
backlog, and the related perverse incentives for aliens to seek to come
to the United States illegally will enable the United States to better
achieve the total and efficient enforcement of U.S. immigration law
and, as such, champion a core American interest in accordance with
American foreign policy. See id.; 90 FR 8337. The rule thus represents
an effort to engage in foreign affairs functions and is therefore
exempt from traditional notice-and-comment procedures.
[[Page 5276]]
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), a regulatory
flexibility analysis is not required when a rule is exempt from notice-
and-comment rulemaking under 5 U.S.C. 553(b) or other law. 5 U.S.C.
603(a), 604(a). Because this IFR relates to agency procedure and
involves a foreign affairs function, it is exempt from notice-and-
comment rulemaking, and no RFA analysis under 5 U.S.C. 603 or 604 is
required for this rule.
C. Unfunded Mandates Reform Act of 1995
This rule would not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year (adjusted annually for inflation), and
it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1532(a).
D. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14192 (Unleashing Prosperity Through Deregulation)
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. The Office of Management and Budget has determined that
this rule is significant under Executive Order 12866.
Overall, the Department believes that this IFR will provide
significant benefits to adjudicators, the parties, the U.S. immigration
system overall, and the broader public, which outweigh the potential
costs. For example, the IFR's procedural changes to Board practices are
intended to better promote the efficient completion of removal
proceedings. Such changes benefit both aliens with meritorious claims,
who will obtain relief or protection faster, and DHS, which will be
able to remove aliens with meritless claims more quickly. Combined,
such changes provide significant benefits to the functioning of the
country's immigration system overall and to the public as a whole. In
contrast, there are no apparent definitive costs of the IFR,
particularly as it merely removes obstacles to efficient consideration
of case appeals that both parties should want.\22\ Thus, on balance,
the Department believes that the efficiency benefits gained by the
changes outweigh the potential costs.
---------------------------------------------------------------------------
\22\ As noted in footnote 16 above, there may be hypothetical or
speculative situations in which the IFR will have some cost.
Nevertheless, for the reasons given throughout this IFR, any such
costs--if they even exist beyond the realm of the hypothetical--are
far outweighed by the benefits of the IFR.
---------------------------------------------------------------------------
Regarding Executive Order 14192, this IFR is issued with respect to
an immigration-related function of the United States and is therefore
not a ``regulation'' or ``rule'' as that term is defined in section 5
of Executive Order 14192. Even considering Executive Order 14192, the
Department determined that this rule will substantially improve
Department procedure with the result of negligible new costs to the
public. As such, no budget implications will result from this rule, and
no balance is needed from the repeal of other regulations.
E. Executive Order 14294 (Overcriminalization of Federal Regulations)
Executive Order 14294 requires agencies promulgating regulations
with criminal regulatory offenses potentially subject to criminal
enforcement to explicitly describe the conduct subject to criminal
enforcement, the authorizing statutes, and the mens rea standard
applicable to each element of those offenses. This rule does not create
a criminal regulatory offense and is thus exempt from Executive Order
14924 requirements.
F. Executive Order 13132 (Federalism)
This IFR would not have substantial direct effects on the States,
on the relationship between the Federal Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this IFR does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This IFR meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
This IFR does not propose new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44
U.S.C. chapter 35), and its implementing regulations, 5 CFR part 1320.
I. Congressional Review Act
This IFR is not a major rule as defined by section 804 of the
Congressional Review Act. 5 U.S.C. 804. This rule will not result in an
annual effect on the economy of $100 million or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based enterprises to compete with foreign-based
enterprises in domestic and export markets.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
Services, Organization and functions (Government agencies).
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1240
Administrative practice and procedure, Aliens.
Accordingly, for the reasons set forth in the preamble, and by the
authority vested in the Director, Executive Office for Immigration
Review, by Attorney General Order Number 6260-2025, the Department
amends 8 CFR parts 1003, 1208, and 1240 as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. Amend Sec. 1003.1 by:
0
a. Redesignating paragraphs (d)(2)(ii) and (iii) as paragraphs
(d)(2)(iii) and (iv);
0
b. Adding new paragraph (d)(2)(ii);
0
c. Revising newly redesignated paragraph (d)(2)(iii);
0
d. Revising paragraphs (d)(6)(ii), (e)(8) introductory text, and
(e)(8)(i) and (ii);
[[Page 5277]]
0
e. Removing and reserving paragraph (e)(8)(iii); and
0
f. Revising paragraphs (m)(1)(ii)(A) and (m)(2)(iii).
The addition and revisions read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
* * * * *
(d) * * *
(2) * * *
(ii) Consideration by the Board. Except for appeals pursuant to
paragraphs (b)(5), (6), (7), and (14) of this section, and
notwithstanding any other provision of this part, for all appeals of
any decision issued on or after March 9, 2026, the Board shall
summarily dismiss the appeal unless a majority of the permanent Board
members vote en banc to accept the appeal for adjudication on the
merits. Such dismissals shall be made by a single Board member without
further consideration, unless the single Board member refers an appeal
for consideration by the Board en banc. If such a referral is made, the
Board shall vote en banc on whether to accept the appeal no later than
10 days after the appeal is filed. If the Board fails to vote en banc
within that time, the appeal shall be deemed to have been summarily
dismissed under this paragraph (d)(2)(ii). All dismissals under
paragraph (d)(2)(i) or (ii) of this section shall be effectuated
through the issuance of a written order no later than 15 days after the
appeal is filed. When an appeal is summarily dismissed under this
paragraph (d)(2)(ii), the Immigration Judge's decision is adopted by
the Board and articulates the rationale for removal that is subject to
judicial review. Nothing in this paragraph (d)(2)(ii) shall restrict
the application of the provisions of paragraph (d)(2)(i) of this
section or the authorities in paragraph (h) of this section.
(iii) Action by the Board. The Board's case management screening
plan shall promptly identify cases that are subject to summary
dismissal pursuant to this paragraph (d)(2)(iii). An order dismissing
any appeal pursuant to this paragraph (d)(2) shall constitute the final
decision of the Board, and ``the final order of removal'' for purposes
of section 242(b)(1) of the Act.
* * * * *
(6) * * *
(ii) Except as provided in paragraph (d)(6)(iv) of this section, if
identity, law enforcement, or security investigations or examinations
are necessary in order to adjudicate the appeal or motion, the Board
will provide notice to both parties that the case is being placed on
hold until such time as all identity, law enforcement, or security
investigations or examinations are completed or updated and the results
have been reported to the Board. The Board's notice will notify the
alien that DHS will contact the alien with instructions, consistent
with Sec. 1003.47(d), to take any additional steps necessary to
complete or update the identity, law enforcement, or security
investigations or examinations only if DHS is unable to independently
update the necessary identity, law enforcement, or security
investigations or examinations. The Board's notice will also advise the
alien of the consequences for failing to comply with the requirements
of this section. DHS is responsible for obtaining biometrics and other
biographical information to complete or update the identity, law
enforcement, or security investigations or examinations with respect to
any alien in detention.
* * * * *
(e) * * *
(8) Timeliness. As provided under the case management system, the
Board shall promptly enter orders of summary dismissal, or other
miscellaneous dispositions, in appropriate cases consistent with
paragraphs (e)(1) and (2) of this section. In all other cases, after
completion of the record on appeal, including any briefs, motions, or
other submissions on appeal, the Board member or panel to which the
case is assigned shall issue a decision on the merits as soon as
practicable, with a priority for cases or custody appeals involving
detained aliens.
(i) Except for summary dismissals under paragraph (d)(2)(ii) of
this section, the Board shall dispose of all cases assigned to a single
Board member within 90 days of completion of the record, or within 180
days of completion of the record for all cases assigned to a three-
member panel. The record shall be complete upon the earlier of either
filing of the last brief or pleading or the passage of the last
deadline for filing a brief or pleading.
(ii) In those cases where the panel is unable to issue a decision
within the established time limits, the Chairman shall either self-
assign the case or assign the case to a Vice Chairman for final
decision within 14 days or shall refer the case to the Attorney General
for decision. If a dissenting or concurring panel member fails to
complete the member's opinion by the end of the extension period, the
decision of the majority will be issued without the separate opinion.
(iii) [Removed and Reserved]
* * * * *
(m) * * *
(1) * * *
(ii) * * *
(A) The alien has filed an asylum application with USCIS pursuant
to section 208(b)(3)(C) of the Act pertaining to unaccompanied alien
children, as defined in 6 U.S.C. 279(g)(2).
* * * * *
(2) * * *
(iii) Limitation on termination. Nothing in paragraphs (m)(2)(i)
and (ii) of this section authorizes the Board to terminate a case where
prohibited by another regulatory provision. Further, nothing in
paragraphs (m)(2)(i) and (ii) of this section authorizes the Board to
terminate a case for the alien to pursue an asylum application before
USCIS, unless the alien has filed an asylum application with USCIS
pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied
alien children, as defined in 6 U.S.C. 279(g)(2).
Sec. 1003.2 [Amended]
0
3. Amend Sec. 1003.2(g)(3) by removing the number ``21'' and adding in
its place the number ``20'' wherever it appears.
0
4. Amend Sec. 1003.3 by revising paragraph (c)(1) to read as follows:
Sec. 1003.3 Notice of appeal.
* * * * *
(c) Briefs--(1) Appeal from decision of an immigration judge. The
Board shall set a briefing schedule for all appeals it has not
summarily dismissed. For appeals of orders by an Immigration Judge in
which no transcript is warranted, briefs shall be due simultaneously
from both parties within 20 days of the Board order setting the
schedule and in no case more than 35 days after the appeal was filed.
For appeals of orders by an Immigration Judge in which a transcript is
warranted, briefs shall be due simultaneously from both parties within
20 days of the Board order setting the schedule and making the
transcript available. The Board shall not accept a reply brief in any
case unless the Board has invited or ordered a party to submit a reply
brief. The Board shall not grant an extension of the briefing schedule
except, as a matter of discretion, in exceptional circumstances as
defined by section 240(e)(1) of the Act. For purposes of this paragraph
(c)(1), workload concerns, travel plans, or similar concerns within the
control of either party, or their representatives, do not constitute
exceptional
[[Page 5278]]
circumstances. In its discretion, the Board may consider a brief that
has been filed out of time. In its discretion, the Board may request
supplemental briefing from the parties after the expiration of the
briefing deadline. All briefs, filings, and motions filed in
conjunction with an appeal shall include proof of service on the
opposing party.
* * * * *
0
5. Amend Sec. 1003.5 by revising paragraph (a) to read as follows:
Sec. 1003.5 Forwarding of record on appeal.
(a) Appeal from decision of an immigration judge. For all appeals
not summarily dismissed, the record shall be forwarded to the Board as
promptly as possible upon receipt of the appeal.
* * * * *
0
6. Amend Sec. 1003.6 by revising paragraph (c)(4) to read as follows:
Sec. 1003.6 Stay of execution of decision.
* * * * *
(c) * * *
(4) If the Board has not acted on the custody appeal, the automatic
stay shall lapse 90 days after the filing of the notice of appeal.
However, if the Board grants a motion by the alien for an enlargement
of the briefing schedule provided in Sec. 1003.3(c), the Board's order
shall also toll the 90-day period of the automatic stay for the same
number of days.
* * * * *
Sec. 1003.18 [Amended]
0
7. Amend Sec. 1003.18 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
the noncitizen the alien
The noncitizen The alien
a noncitizen's an alien's
the noncitizen's the alien's
unaccompanied children, as unaccompanied alien children, as
defined in 8 CFR 1001.1(hh) defined in 6 U.S.C. 279(g)(2)
------------------------------------------------------------------------
0
8. Amend Sec. 1003.38 by:
0
a. In paragraph (a), removing the text ``3.1(b)'' and adding in its
place the text ``1003.1(b)'';
0
b. Revising paragraph (b); and
0
c. In paragraph (f), removing the text ``3.3(c)'' and adding in its
place the text ``1003.3(c)''.
The revision reads as follows:
Sec. 1003.38 Appeals.
* * * * *
(b) This paragraph (b) addresses filing deadlines for appeals to
the Board of Immigration Judge decisions.
(1) Except as provided in paragraph (b)(2) of this section, in all
cases the Notice of Appeal from a Decision of an Immigration Judge
(Form EOIR-26) shall be filed directly with the Board within 10
calendar days of the Immigration Judge's decision.
(2) In cases where an Immigration Judge has adjudicated an asylum
application and did not deny the application under 208(a)(2)(A), (B),
or (C) of the Act, the Notice of Appeal from a Decision of an
Immigration Judge (Form EOIR-26) shall be filed directly with the Board
within 30 calendar days of the Immigration Judge's decision.
(3) In all cases, the Board appeal filing deadline shall be
calculated from the date of the stating of an Immigration Judge's oral
decision or the mailing or electronic notification of an Immigration
Judge's written decision. If the final date for filing falls on a
Saturday, Sunday, or legal holiday, this appeal time shall be extended
to the next business day. A Notice of Appeal (Form EOIR-26) may not be
filed by any party who has waived appeal. Any issue not raised in the
Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26)
shall be deemed waived.
* * * * *
Sec. 1003.42 [Amended]
0
9. Amend Sec. 1003.42 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
a noncitizen's an alien's
Noncitizens Aliens
------------------------------------------------------------------------
Sec. 1003.55 [Amended]
0
10. Amend Sec. 1003.55 by removing the word ``noncitizen'' and adding
in its place the word ``alien'' wherever it appears.
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
11. The authority citation for part 1208 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; Pub. L. 115-218.
0
12. Amend Sec. 1208.31 by revising the section heading to read as
follows:
Sec. 1208.31 Reasonable fear of persecution or torture determinations
involving aliens ordered removed under section 238(b) of the Act and
aliens whose removal is reinstated under section 241(a)(5) of the Act.
* * * * *
Sec. 1208.35 [Amended]
0
13. Amend Sec. 1208.35 by, in paragraph (d)(2)(i), removing the word
``noncitizen'' and adding in its place the word ``alien''.
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
14. The authority citation for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).
Sec. 1240.15 [Amended]
0
15. Amend Sec. 1240.15 by removing the third sentence.
Sec. 1240.26 [Amended]
0
16. Amend Sec. 1240.26 by, in paragraph (k)(4), removing the word
``noncitizen'' and adding in its place the word ``alien'' wherever it
appears.
Sec. 1240.53 [Amended]
0
17. Amend Sec. 1240.53 by removing the third sentence in paragraph
(a).
Daren K. Margolin,
Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2026-02326 Filed 2-5-26; 8:45 am]
BILLING CODE 4410-30-P
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</html>Indexed from Federal Register on February 6, 2026.
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