Court Vacates Key Provisions of EOIR Interim Final Rule on Board of Immigration Appeals Appellate Procedures for Violating APA Notice-and-Comment Requirements

 

The case, Amica Center for Immigrant Rights et al. v. Executive Office for Immigration Review et al., was filed on February 26, 2026, in the U.S. District Court for the District of Columbia. The plaintiffs consist of five nonprofit legal services organizations—Amica Center for Immigrant Rights, Brooklyn Defender Services, Florence Immigrant and Refugee Rights Project, HIAS, and National Immigrant Justice Center—that provide representation, advice, and advocacy to immigrants in removal proceedings. These organizations collectively handle thousands of cases annually, including appeals to the Board of Immigration Appeals (BIA), which is part of the Executive Office for Immigration Review (EOIR) under the U.S. Department of Justice. The defendants include EOIR, its Director, the BIA Chair, and the Attorney General.

At the center of the dispute is an Interim Final Rule (IFR) issued by EOIR on February 6, 2026, and published in the Federal Register at 91 Fed. Reg. 5267. The IFR aimed to overhaul appellate procedures at the BIA to address a growing backlog of cases, which had increased from approximately 37,000 in 2015 to over 200,000 by 2025. Key changes included: shortening the deadline for filing a Notice of Appeal from 30 days to 10 calendar days (with limited exceptions for certain asylum denials); deeming any issues not specifically raised in the Notice of Appeal as waived; eliminating the routine preparation of transcripts for oral decisions unless the appeal is selected for full review; implementing simultaneous briefing schedules within 20-35 days of appeal filing, with strict limits on extensions and no automatic reply briefs; and, most critically, establishing a presumption of summary dismissal for all appeals unless a single BIA member refers the case for en banc consideration within 10 days, followed by a majority vote of the full BIA (up to 23 members) to accept it for merits review within another 10 days. If not selected, the appeal would be summarily dismissed without further explanation or opportunity for input.

The IFR was promulgated without prior notice and public comment, invoking two exceptions under the Administrative Procedure Act (APA): the "rules of agency organization, procedure, or practice" exception (5 U.S.C. § 553(b)(A)) and the "foreign affairs function" exception (5 U.S.C. § 553(a)(1)). EOIR justified this by arguing the changes were internal procedural adjustments to enhance efficiency and that immigration enforcement inherently involves foreign affairs, such as deterring unlawful migration and facilitating international cooperation on removals. The rule was scheduled to take effect on March 9, 2026.

Plaintiffs challenged the IFR on multiple grounds, including violations of the APA for bypassing notice and comment, contravention of the Immigration and Nationality Act (INA) provisions ensuring rights to counsel and meaningful review (e.g., 8 U.S.C. §§ 1229a(b)(4), 1362, 1101(a)(47)(B)), due process infringements under the Fifth Amendment, and failure to conduct a Regulatory Flexibility Act analysis. They supported their claims with declarations detailing organizational harms, such as the need to divert resources from client services to training on new procedures, increased costs from shifting cases to federal courts (where representation rates are lower), and reduced effectiveness in representing clients due to compressed timelines—particularly for detained immigrants without access to transcripts or counsel within 10 days. Amici briefs from former Immigration Judges and BIA members emphasized the impracticality of the en banc referral process, noting the BIA receives about 400 appeals daily and that en banc reviews are rare (only 15-20 annually).

The procedural history includes plaintiffs' motion for a stay under 5 U.S.C. § 705 and partial summary judgment on the notice-and-comment claim. The court, presided over by Judge Randolph D. Moss, consolidated these into a single hearing, treating the motion as one for summary judgment on the narrow legal issue of APA compliance, which could be resolved based on the IFR's text and record without factual disputes.

Issues

The central issues revolved around the validity of the IFR under the APA and related statutes. First, did the IFR qualify for exemptions from the APA's notice-and-comment requirements? This broke down into: (a) whether it was merely a "rule of agency organization, procedure, or practice" under 5 U.S.C. § 553(b)(A), or if it substantively altered immigrants' rights and interests in a manner requiring public input; and (b) whether it involved a "military or foreign affairs function" under 5 U.S.C. § 553(a)(1), given its focus on domestic removal proceedings. The court examined whether the IFR's provisions—particularly the 10-day appeal deadline, issue waiver, and presumption of summary dismissal—imposed "grave" substantive effects by effectively foreclosing meaningful appellate opportunities, as opposed to merely adjusting how cases are processed internally.

Secondary issues included: whether the plaintiffs had Article III standing and fell within the APA's zone of interests; whether the IFR contravened specific INA provisions, such as the 30-day appeal period for asylum denials (8 U.S.C. § 1158(d)(5)(A)(iv)) and the definition of a "final" removal order requiring BIA disposition (8 U.S.C. § 1101(a)(47)(B)); whether the changes violated due process by denying fair notice and an opportunity to be heard; and whether a stay under 5 U.S.C. § 705 was warranted for any non-vacated provisions, based on factors like likelihood of success, irreparable harm, balance of equities, and public interest. The court also considered severability: could invalid provisions be excised while preserving others, such as briefing schedules and case assignment rules?

Decision

On March 8, 2026, the court granted plaintiffs' motion for partial summary judgment on their APA notice-and-comment claim (Count I), holding that key provisions of the IFR were substantive rules not exempt from notice and comment and thus invalid under 5 U.S.C. § 706(2)(D). Specifically, the court vacated the 10-day Notice of Appeal deadline, the waiver of unraised issues, and the presumption of summary dismissal (amending 8 C.F.R. § 1003.1(d)(2)(ii)), remanding them to EOIR for proper rulemaking. These changes were deemed intertwined and substantive, as they "dictate results" by presumptively denying merits review without opportunity for input.

The court denied summary judgment and a stay for the remaining provisions, such as simultaneous briefing, limited extensions, transcript preparation only upon acceptance, and internal case assignment timelines (e.g., 14-day referral for delayed cases), finding them genuinely procedural and not causing independent irreparable harm. The foreign affairs exception was rejected outright. Plaintiffs' standing was affirmed, but other claims (e.g., INA violations, due process, Regulatory Flexibility Act) were not fully resolved, as the partial vacatur mooted the need for broader relief. The motion for a § 705 stay was denied as moot for the vacated provisions and on the merits for the rest.

The ruling emphasizes the APA's core purpose: to ensure public participation in rulemaking that affects substantive rights, preventing arbitrary agency action. Drawing on D.C. Circuit precedent like Batterton v. Marshall (648 F.2d 694, 707 (D.C. Cir. 1980)) and AFL-CIO v. NLRB (57 F.4th 1023, 1034 (D.C. Cir. 2023)), the judge applied a "question of degree" test to distinguish procedural from substantive rules, focusing on whether the IFR "alters the rights or interests of parties" in a "sufficiently grave" way. The substantive provisions failed this test because they created a "fast-track mechanism" that presumptively dismisses appeals without review, effectively eviscerating the INA's guarantee of administrative appeals and shifting burdens to federal courts, where exhaustion requirements (8 U.S.C. § 1252(d)(1)) could bar judicial review. Key quote: "The IFR does not merely 'alter the manner in which the parties present themselves... to the agency.' To the contrary, it dictates results." This impact was deemed "grave," especially for vulnerable immigrants, as supported by plaintiffs' evidence of resource diversion and reduced representation efficacy.

The procedural exception was narrowly construed, rejecting EOIR's efficiency arguments as insufficient to override APA safeguards—otherwise, agencies could bypass notice for any backlog-related change. The foreign affairs exception was dismissed because removal proceedings are domestic applications of U.S. law, not "activities characteristic of international relations" (citing E.B. v. U.S. Dep’t of State, 583 F. Supp. 3d 58, 64 (D.D.C. 2022)), and public comment would not provoke "definitely undesirable international consequences."

For standing, the court relied on Havens Realty Corp. v. Coleman (455 U.S. 363 (1982)), finding concrete injuries like increased costs ($13,800 for one plaintiff) and frustrated missions, traceable to the IFR and redressable by vacatur. Zone-of-interests was satisfied under Lexmark Int'l, Inc. v. Static Control Components, Inc. (572 U.S. 118 (2014)), as plaintiffs' work aligns with INA protections.

On remedies, partial vacatur was appropriate under Daimler Trucks N. Am. LLC v. EPA (737 F.3d 95, 103 (D.C. Cir. 2013)), severing invalid from valid provisions to minimize disruption while enforcing APA compliance. The denial of a broader stay followed Winter v. NRDC (555 U.S. 7 (2008)), as remaining changes posed no shown irreparable harm—e.g., briefing timelines were not "so short as to foreclose effective opportunity" (Lamoille Valley R. Co. v. ICC, 711 F.2d 295, 328 (D.C. Cir. 1983)).

Citation: Amica Center for Immigrant Rights v. Executive Office for Immigration Review, No. 1:26-cv-00696 (RDM) (D.D.C. Mar. 8, 2026).

The full decision can be accessed from: https://democracyforward.org/wp-content/uploads/2026/03/32-Amica-Opinion.pdf