PWS “QUICK TAKES” ON EOIR INTERIM REORGANIZATION RULE

• Enhances role of relatively new “Office of Policy” (“OP”)
  • Remarkable because as a quasi-judicial court system, EOIR really is not supposed to be “making policy” except through BIA precedents
  • Shows Trump Administration’s “weaponization” of EOIR as a means of implementing restrictionist policies by precedent decision without going through legislation or rule making
  • Enhances policy role of Director, since Director controls OP
  • OP primary role appears to be to ensure that EOIR functions as an adjunct of DHS Enforcement and that any adjudication trends that enhance Due Process or vindicate Immigrants rights are quickly identified so that they can be wiped out by precedents or policy changes

• Diminishes role of Office of Legal Assistance Programs (“OLAP”)
  • OLAP’s primary mission is to enhance and ensure maximum representation for migrants in Removal proceedings
    • That mission directly conflicted with the Administration’s use of EOIR as a “Deportation Railroad”
  • OLAP is eradicated from the regulations and organizational chart and buried deep in the bowels of OP
  • Look for OLAP to be slowly strangled and its functions in assisting migrants and providing them information and self-help materials in going through the Immigraton Court process to be reduced or eliminated
  • OP can be expected to concentrate instead on how to limit migrants’ access to pro bono counsel and to make practice before the Immigration Courts as non-user-friendly as possible to discourage representation and expedite removals of clueless unrepresented migrants

• Disingenuously designates BIA Members as “Appellate Immigration Judges”
  • As their authority to act as fair, impartial, and independent adjudicators is diminished to lowest level in BIA history, “bogus retitling” appears intended to create an “appearance” of enhanced status of “AG’s patsies” before Article III Appellate Courts in support of DOJ’s arguments for high degree of deference and diminished scrutiny from Article IIIs

• Uses administrative gobbledygook and slight of hand to give the Director individual case adjudication authority in certain instances where BIA’s “Mickey Mouse” adjudication deadlines are not met
  • Back in 1995 (when I was appointed) the DOJ separated the functions of the Director and the BIA Chair, which until then had been merged in the same position
  • Result of a perceived conflict of interest in having Director directly responsible to the AG while also having quasi-judicial responsibilities as BIA Chair
  • Beginning to “re-merge” adjudication with administration reflects Trump DOJ’s disregard of ethical considerations in immigration adjudication and intent to use EOIR as enhanced enforcement tool
  • Remarkably, the Director could actually issue precedent decisions in some instances 
  • Look for the Director over time to reinsert himself in the adjudicative activities of EOIR for the purpose of insuring subservience to Administrations’s political enforcement priorities
  • Not clear whether the current authority to refer ”overdue” BIA cases has even been utilized (but, if it hasn’t been, why would the AG fear potentially being “overburdened” with such non-existent referrals and find it necessary to make this change?)

PWS

08-23-19