The American Immigration Council is a non-profit, non-partisan organization. The Department of Justice (DOJ), which oversees the immigration court and administrative appeals system, published an interim final rule on February 6 that will effectively end appellate review of many immigration judge decisions. The rule goes into effect March 9, and, while it won’t impact the close to 203,000 currently pending appeals, many appeals before the Board of Immigration Appeals (BIA) will be summarily dismissed going forward.
Since January 2025, the DOJ has taken significant steps to weaken the immigration court system. It has fired more than 100 immigration judges, reduced the BIA from 28 members to 15, and dismissed nine BIA members appointed by the Biden administration. The BIA has issued more than 70 new precedential decisions, the vast majority of which resulted in a negative outcome for the noncitizen facing removal. It has also made it easier to appoint temporary immigration judges without prior immigration law experience and has pressured immigration judges to dismiss cases so the Department of Homeland Security can reroute individuals into fast-track deportation processes. Likewise, it often denies bond for noncitizens arrested by ICE, despite federal court rulings to the contrary, keeping more people detained unnecessarily.
Consistent with this broader approach, the new BIA interim final rule seems tailor-made to advance the Trump administration’s mass deportation agenda. It marks a fundamental shift away from appellate review as a meaningful safeguard from errors and further erodes the limited due process protections that remain in the immigration court system, all with a clear goal of accelerating removals.
What does the interim final rule do?
First, it cuts short the time in which noncitizens must file an appeal of an immigration judge’s decision to the BIA from 30 days to just 10 days. This means people will only have 10 days to find $1,030 fee necessary to file an appeal, find a lawyer to help them if they don’t have one already, and prepare the paperwork necessary to file.
There is one exception, however; by law, most noncitizens who appeal the decisions of immigration judges in asylum cases will continue to have 30 days to appeal, unless they’re denied under three limited exceptions. Regardless, these decisions will still be subject to the BIA’s new default standard “summary dismissal.”
This rule also applies to noncitizens in detention, with a narrow exception for appeals of their bond requests, many of which are already being denied under other policy changes by the administration.
Second, instead of providing a meaningful review of a noncitizens’ appeal, under the rule, the BIA’s default practice will be to immediately dismiss nearly all of them unless a majority of the BIA’s 15 members determine they want to consider the case and not simply dismiss it. It is likely that this authority will be rarely used.
Under current procedure, while an appeal to the BIA is pending, any removal order entered by an immigration judge doesn’t go into effect until the BIA makes a final decision, which can take years. This new “default” means that if an immigration judge denies a noncitizen’s case, their removal order will become effective substantially sooner — potentially within a matter of weeks. The BIA will have 15 days to issue the summary dismissal, which means the time from the immigration judge’s decision to the BIA’s dismissal could take as little as 25 days.
For noncitizens to obtain any meaningful review of an immigration judges’ denial before being deported, they will have to appeal to a federal circuit court of appeals to have their case heard and also request an emergency “stay” (or pause) to their deportation so that they’re not deported during this process. Noncitizens will have to pay at least $1,630 for this process, including $1,030 to the BIA just to have their appeal denied and an additional $600 to the federal circuit court of appeals.
This expedited process puts noncitizens in a vulnerable position. The government may act quickly to deport them before they can submit those requests to the circuit court of appeals, or before the court rules on a stay motion. And even that won’t be possible unless they’re able to either find an attorney to help them or to figure out the process on their own.
Lastly, the rule further limits appellate review by drastically curtailing briefing opportunities. Among other things, it imposes simultaneous briefing in non-detained cases and prohibits “reply briefs,” both of which will prevent parties from providing meaningful replies to the opposing party’s arguments.
What is the future of this rule?
The DOJ is accepting comments before the March 9 implementation date, but they will have little to no impact. Because this is an IFR, it will immediately become effective on that date regardless of the comments received. Usually, the government first publishes a notice (not an IFR) to receive comments, solicits feedback, and then uses that information to modify and implement the rule. The DOJ has bypassed that process to implement this rule faster — though there is a strong likelihood that the department will be sued for not taking the usual route.
This rule arrives as the immigration detention system is expanding dramatically. The practical impact is stark: people detained who lose before an immigration judge and seek review from the BIA will likely see their appeals dismissed quickly, leaving them exposed to rapid deportation. From detention, it is extraordinarily difficult to secure counsel, prepare a petition for review in federal court, or marshal the resources to pay all the required filing fees.
