OIA Comment to BIA Interim Rule
The Ohio Immigrant Alliance filed a comment about the Interim Final Rule, Appellate Procedures for the Board of Immigration Appeals, Docket No. EOIR-26-AB37, Dir. Order No. 03-2026, RIN 1125-AB37 with the Executive Office of Immigration Review (EOIR).
After explaining that “the immigration court process begins with a fundamental unfairness — the lack of guaranteed legal representation for respondents,” the OIA comment outlines key principles of due process that all U.S. courts should uphold, and ways that the U.S. immigration courts already fail to do so — even without implemented this Rule.
The comment quotes U.S. Supreme Court Justice George Sutherland, who wrote in the 1932 Powell v. Alabama decision: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.” The Supreme Court decision in that case saved nine Black youth from death by electric chair, after they were falsely accused of rape by two white women and rushed through a racist court system despite the lack of evidence. All were eventually exonerated.
The comment also draws upon original research from the Ohio Immigrant Alliance, like our six-part series “Behind Closed Doors: Black Immigrants and the Hidden Injustices of U.S. Immigration Courts.” and our book Broken Hope: Deportation and the Road Home. It gives real-life examples of the failed immigration court system and consequences for people we know.
Addressing the specific components of the proposed Rule, Appellate Procedures for the Board of Immigration Appeals, we write:
It is part of a series of changes the Trump administration is attempting to make to the way the immigration courts function, and goes along with the mass firing of immigration judges who are assumed to have political views different from those of the current administration. Judges with experience in immigration law are being removed from the court, despite the historic backlog of immigration cases pending today.
This proposed Rule eviscerates the right to appeal for respondents, by allowing a single member of the BIA to summarily dismiss a case on appeal, unless an entire panel of judges votes to hear the case. This will effectively eliminate appeals for respondents (immigrants). In the rare cases where an immigration judge actually grants asylum, or makes some other favorable decision for immigrants, the government will still have the right to appeal to the BIA. The Board will likely agree to hear the case, in order to rule against the individual.
This is the very definition of stacking the deck. The Trump administration cannot completely eliminate the Board of Immigration Appeals without action by Congress. Instead, this Rule would keep the Board in place to rule against respondents who actually win in the immigration courts, while denying people who lose their cases the opportunity for a second look at the federal level.
Courts should be independent from political direction.
The federal government must rescind this Rule, and cease all further attacks on due process in immigration courts. The laws and structure are already stacked against respondents; it’s un-American to distort the appeals system to favor the government as well.
Ultimately, we conclude: “our immigration courts need to be completely separated from the Executive Branch. That’s fundamental to fairness and due process. Finally making the immigration courts into an independent judiciary is long overdue. Congress must act today. Anyone who argues against that simply wants to keep an unfair system in place.”
The full text can be read here or on the regulations.gov website by searching comment tracking number mnn-f3ad-ivcf.
