Reducing the Size of the Board of Immigration Appeals

<RULE> DEPARTMENT OF JUSTICE <SUBAGY>Executive Office for Immigration Review</SUBAGY> <CFR>8 CFR Part 1003</CFR> <DEPDOC>[EOIR 25-AB34; AG Order No. 6224-2025]</DEPDOC> <RIN>RIN 1125-AB34</RIN> <SUBJECT>Reducing the Size of the Board of Immigration Appeals</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Executive Office for Immigration Review, Department of Justice. <HD SOURCE="HED">ACTION:</HD> Interim final rule with request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This interim final rule (“IFR”) amends the Department of Justice (“Department”) regulations relating to the organization of the Board of Immigration Appeals (“Board” or “BIA”) by reducing the Board to 15 members. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> This IFR is effective April 14, 2025. <E T="03">Comments:</E> Written comments must be submitted on or before May 14, 2025. Comments postmarked on or before that date will be considered timely. The electronic Federal Docket Management System will accept comments until midnight Eastern Time on that date. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> If you wish to provide comments regarding this rulemaking, you must submit comments, identified by the agency name and referencing RIN 1125-AB34 or EOIR Docket No. 25-AB34, by one of the two methods below. • <E T="03">Federal eRulemaking Portal: www.regulations.gov.</E> Follow the website instructions for submitting comments. • <E T="03">Mail:</E> 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: Stephanie Gorman, 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-AB34 or EOIR Docket No. 25-AB34 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Stephanie Gorman, Acting Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041, telephone (703) 305-0289. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Public Participation</HD> Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. 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 such recommended change. Each submitted comment should include the agency name and reference RIN 1125-AB34 or EOIR Docket No. 25-AB34 for this rulemaking. Please note that all properly received comments are considered part of the public record and generally may be made available for public inspection at <E T="03">www.regulations.gov.</E> Such information includes personally identifying information (such as name, address, etc.) voluntarily submitted by the commenter. 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 <E T="03">www.regulations.gov.</E> 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. The redacted personally identifying information will be placed in the agency's public docket file but not posted online. 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 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 <E T="03">www.regulations.gov.</E> The redacted confidential business information will not be placed in the public docket file. To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the <E T="02">For Further Information Contact</E> paragraph above for agency contact information. <HD SOURCE="HD1">II. Background</HD> The Executive Office for Immigration Review (“EOIR”) administers the Nation's immigration court system. Generally, cases commence before an immigration judge after the Department of Homeland Security (“DHS”) files a charging document with the immigration court. <E T="03">See</E> 8 CFR 1003.14(a). EOIR primarily decides whether aliens who are charged by DHS with violating immigration law pursuant to the Immigration and Nationality Act (“INA” or “Act”), codified at 8 U.S.C. 1101-1537, should be ordered removed from the United States, or should be granted relief or protection from removal and be permitted to remain in the United States. EOIR's Office of the Chief Immigration Judge administers these adjudications in immigration courts nationwide. Many—but not all—decisions of the immigration judges are subject to review by EOIR's appellate body, the Board, which at full capacity under the current regulations comprises 28 permanent Board members. <E T="03">See</E> 8 CFR 1003.1(a)(1), (b). The Board is the highest administrative tribunal for interpreting and applying Federal immigration law. The Board's decisions can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g) and (h). Decisions of the Board and the Attorney General are subject to judicial review. INA 242, 8 U.S.C. 1252. The Board issues both precedent and non-precedent decisions, and a decision may be designated as a precedent by a majority vote of permanent Board members. <E T="03">See</E> 8 CFR 1003.1(g)(3). <HD SOURCE="HD1">III. Reduction of Number of Board Members</HD> The size of the BIA was last addressed through a rule promulgated in April 2024. <E T="03">See</E> Expanding the Size of the Board of Immigration Appeals, 89 FR 22630 (Apr. 2, 2024). At that time, the Department issued a final rule not only addressing comments received in response to the Department's 2020 IFR that expanded the size of the Board from 21 to 23 members, Expanding the Size of the Board of Immigration Appeals, 85 FR 18105 (Apr. 1, 2020), but also adding five additional Board member positions, thereby expanding the size of the Board to 28 permanent members. 89 FR 22630. The number of permanent Board members has fluctuated over time based on changing circumstances. Throughout the history of the BIA, the number of authorized Board member positions has ranged from as few as 5 members to as many as the current 28 members. <E T="03">See</E> Board of Immigration Appeals; Immigration Review Function; Editorial Amendments, 48 FR 8038, 8039 (Feb. 25, 1983). At present, the BIA has 28 authorized Board member positions, the largest in its 85-year history. Over the past 30 years, the primary justification for increasing the number of Board members has been the rising EOIR caseload. <SU>1</SU> <FTREF/> <E T="03">See</E> Expansion of the Board of Immigration Appeals, 60 FR 29469, 29469 (June 5, 1995); Board Members of the Board of Immigration Appeals, 61 FR 59305, 59305 (Nov. 22, 1996); 23 Board of Immigration Appeals Members, 66 FR 47379, 47379 (Sept. 12, 2001); Board of Immigration Appeals: Composition of Board and Temporary Board Members, 71 FR 70855, 70855-56 (Dec. 7, 2006), <E T="03">finalized without change by</E> Board of Immigration Appeals: Composition of Board and Temporary Board Members, 73 FR 33875 (June 16, 2008); Expanding the Size of the Board of Immigration Appeals, 80 FR 31461, 31462 (June 3, 2015); Expanding the Size of the Board of Immigration Appeals, 83 FR 8321, 8321-22 (Feb. 27, 2018); 85 FR 18106; 89 FR 22631. <FTNT> <SU>1</SU>  Although most changes to the size of the Board involved increasing the number of permanent Board members, the number of authorized permanent Board members was reduced from 21 to 11 in 2002. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 FR 54878 (Aug. 26, 2002). </FTNT> However, increasing the size of the Board has not necessarily equated to a corresponding increase in the number of cases adjudicated or a reduction in the pending caseload. Although many factors may have contributed to this outcome—including organizational and administrative challenges—the data demonstrate that increasing the Board's size has not brought about the hoped-for increases in productivity envisioned by prior expansions. Furthermore, increasing the Board beyond a certain size has added structural inefficiencies that further undermine the Board's ability to effectively adjudicate cases. The Department notes that several commenters on the 2020 IFR expanding the Board raised similar concerns— <E T="03">i.e.,</E> that expanding the Board's size would do little to address its pending caseload. <E T="03">See</E> 89 FR 22632 (2024 final rule responding to comments on the 2020 IFR). Although the Department further expanded the size of the Board in 2024 notwithst ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 28k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━