Appellate Procedures for the Board of Immigration Appeals

<RULE> DEPARTMENT OF JUSTICE <SUBAGY>Executive Office for Immigration Review</SUBAGY> <CFR>8 CFR Parts 1003, 1208, and 1240</CFR> <DEPDOC>[Docket No. EOIR-26-AB37; Dir. Order No. 02-2026]</DEPDOC> <RIN>RIN 1125-AB37</RIN> <SUBJECT>Appellate Procedures for the Board of Immigration Appeals</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Executive Office for Immigration Review (“EOIR”), Department of Justice. <HD SOURCE="HED">ACTION:</HD> Interim final rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> <E T="03">Effective date:</E> This IFR is effective March 9, 2026. <E T="03">Comments:</E> 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 <E T="03">https://www.regulations.gov</E> will accept electronic comments until 11:59 p.m. Eastern Time on that date. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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. • <E T="03">Federal eRulemaking Portal: https://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: 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 <E T="03">https://www.regulations.gov.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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. </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 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 <E T="03">https://www.regulations.gov.</E> 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 <E T="03">https://www.regulations.gov.</E> 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 <E T="03">https://www.regulations.gov.</E> 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. Legal Authority</HD> 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 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”). <HD SOURCE="HD1">III. Background</HD> <HD SOURCE="HD2">A. General Regulatory Authority of the Board</HD> 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.” <E T="03">See</E> 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. <SU>1</SU> <FTREF/> <E T="03">See</E> 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). <FTNT> <SU>1</SU>  “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, <E T="03">The Board of Immigration Appeals: A Critical Appraisal,</E> 15 San Diego L. Rev. 29, 30 (1977) (retired Board Chairman discussing the Board's origins and development). </FTNT> 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. <E T="03">See, e.g.,</E> 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.”); <E T="03">Kucana</E> v. <E T="03">Holder,</E> 558 U.S. 233, 239 (2010) (“As adjudicator in immigration cases, the Board exercises authority delegated by the Attorney General.”). <SU>2</SU> <FTREF/> <FTNT> <SU>2</SU>  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). </FTNT> 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 a ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 97k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━