The Department of Justice’s plan to automatically dismiss immigration cases on appeal is unlawful, a federal judge ruled late Sunday.
The order came a day before a new rule was set to take effect that would have resulted in the dismissal of most cases without the appellate board considering the merits.
Under an interim final rule published in early February, appeals would be automatically dismissed if the majority of the Board of Immigration Appeals judges, who are DOJ employees, didn’t accept the cases within 10 days. The rule also shortened the time immigrants had to file most appeals from 30 days to 10 and allowed dismissal decisions before transcripts of the proceedings became available. The Justice Department framed the change as a way to deal with the backlog in immigration courts.
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U.S. District Judge Randolph Moss ruled that the changes were unenforceable because the Executive Office for Immigration Review within the DOJ published the rule without allowing time to consider public comments before its effective date.
“Against this backdrop, one can only conclude that the overwhelming majority of BIA appeals will receive no meaningful consideration,” Moss wrote in the 73-page opinion in response to a suit brought by nonprofit groups that provide legal aid to immigrants.
The Trump administration has targeted the immigration court system for overhauls, saying it moves too slowly to close cases and order removals. Immigration courts across the country have a backlog of 3.3 million cases, according to a data research organization at Syracuse University.
Over the past year, the number of immigration judges has shrunk by about a quarter because of mass firings and resignations, leading to the DOJ deploying military lawyers to act as temporary judges, according to NPR.
Pro bono immigrant legal aid groups Amica Center for Immigrant Rights, Brooklyn Defender Services, Florence Immigrant & Refugee Rights Project, HIAS and National Immigrant Justice Center filed the lawsuit on Feb. 26. Democracy Forward, the American Immigration Council and National Immigrant Justice Center are representing the nonprofits.
“At a time when the due process rights of immigrants are under attack, this ruling prevents the BIA from reaching the point of near self-destruction,” Emilie Raber, senior attorney at the Amica Center for Immigrant Rights, said in a statement. “We hope that this decision is the first step of many steps in ensuring that immigration courts reach decisions based on the law rather than on pre-determined outcomes.”
The EOIR declined to comment on the ruling.
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