Immigration Law

Immigration office's new structure may have adverse impacts, ABA president says

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The proposed reorganization of the Department of Justice’s Executive Office for Immigration Review could adversely impact noncitizens’ access to legal information and services and the administrative review of immigration decisions, ABA President Judy Perry Martinez wrote in a letter Friday.

In August, the EOIR published an interim rule amending regulations related to its internal organization. Among other things, it incorporates changes related to the EOIR’s creation of an Office of Policy and redelegates authority to adjudicate appeals from the attorney general to the EOIR director.

Martinez pointed out in her letter to Lauren Alder Reid, the assistant director of the Office of Policy, that the Office of Legal Access Programs administered the Legal Orientation Program, the Legal Orientation Program for Custodians of Unaccompanied Alien Children, the National Qualified Representative Program and the Recognition and Accreditation Program before the interim rule was published.

She said the ABA can “unequivocally attest to the value these programs provide to both noncitizens and the courts,” particularly since its South Texas Pro Bono Asylum Representation Project in Harlingen, Texas, and Immigration Justice Project in San Diego often work with them.

Martinez contended that the interim rule raises concerns because it eliminates the Office of Legal Access Programs and transfers its functions to the Office of Policy without guaranteeing the continued priority of these programs.

“The ABA hopes that this reorganization of EOIR’s internal structure will not impact the agency’s commitment to the vitality of programs that facilitate access to legal information and representation for noncitizens,” she said. “Any changes that would result in restricting access to or politicizing the implementation of these important programs would be of great concern to the ABA.”

The ABA also has concerns that the EOIR director’s authority to adjudicate appeals not completed by the Board of Immigration Appeals within the required time limits will “undermine full and fair administrative review of immigration decisions,” Martinez said. According to the interim rule, appeals that are not adjudicated by a single board member within 90 days or by a three-member panel within 180 days can be referred to the director.

“Rather than providing the board with more flexibility to make such decisions, the interim rule delegates the attorney general’s existing authority to truncate the traditional administrative review process to the EOIR director—an official who, unlike the attorney general, is not subject to Senate confirmation,” Martinez said.

The ABA recently expressed its concerns over the process for referring cases to the attorney general since it was not clear what types of cases would be referred or whether parties would receive adequate notice of the referral.

“As the administrative body responsible for providing clear and uniform guidance to DHS, immigration judges and the public on the relevant law, the board, not the EOIR director (or the attorney general), should be responsible for issuing appellate decisions,” Martinez said. “This is especially true for decisions that have the potential to create new precedent or revisit longstanding doctrine.”

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