DOJ Issues Interim Final Rule Transforming BIA Appeals into a Discretionary Review System

The U.S. Department of Justice (DOJ) has issued an Interim Final Rule (IFR) that significantly alters the appellate process before the Board of Immigration Appeals (BIA). Under the new framework, most appeals will no longer receive mandatory merits review. Instead, the BIA will operate primarily as a discretionary appellate body, with immigration judge (IJ) decisions becoming final unless the Board affirmatively elects to hear the case.

This change represents a substantial shift in immigration adjudication procedures and will have immediate implications for noncitizens, employers, and practitioners.

Summary of Key Changes

Under the Interim Final Rule, the following procedural changes take effect:

• Discretionary acceptance of appeals:

  Appeals filed with the BIA will no longer be reviewed as a matter of right. A majority of Board members sitting en banc must vote to accept an appeal for merits review.

• Immigration judge decisions become final by default:

  If the BIA declines to accept an appeal, the IJ’s decision automatically becomes the final agency determination.

• Shortened filing deadlines:

  The deadline to file an appeal is reduced from 30 days to 10 calendar days in most cases.

• Expedited summary dismissal:

  Appeals not accepted for review may be summarily dismissed, typically within 15 days of filing.

• Simultaneous briefing:

  In cases accepted for review, both parties must file briefs simultaneously within 20 days, eliminating reply briefs.

• Reduced procedural safeguards:

  Certain prior requirements—such as immigration judge transcript review—have been eliminated as part of the DOJ’s stated efficiency goals.

The DOJ has stated that these changes are intended to address a significant BIA backlog, which currently exceeds 200,000 pending cases.

Background: The BIA’s Traditional Role

The Board of Immigration Appeals is the highest administrative appellate body within the Executive Office for Immigration Review (EOIR). Historically, the BIA has provided mandatory appellate review of removal orders and other adverse immigration decisions, ensuring consistency and uniform application of immigration law nationwide.

Under prior regulations, a timely filed appeal was entitled to adjudication on the merits, subject to limited summary dismissal authority. The new rule fundamentally alters this structure by converting appellate review into a discretionary process.

The rule restructures BIA practice in several consequential ways. Most notably, it converts the appeal process into an acceptance-based system: instead of adjudicating appeals on the merits after a Notice of Appeal is filed, the BIA will largely act as a gatekeeper and will only move forward on cases it chooses to hear. The interim rule also compresses timelines and reduces procedural safeguards. Reports describing the changes indicate the appeal filing window is shortened to as little as ten days in many matters, summary dismissal is expected on an accelerated track (often within roughly fifteen days of filing), and in cases that are accepted for review, briefing may proceed on a simultaneous schedule that removes traditional reply briefing. The stated rationale for these changes is efficiency and backlog reduction, with the BIA’s pending caseload cited as exceeding 200,000 matters.

This is a meaningful departure from the BIA’s historical role within EOIR as the highest administrative appellate tribunal for immigration court decisions. Traditionally, a timely appeal triggered an obligation by the Board to decide the case—whether through a single-member order, panel decision, or precedential decision—providing a standardized mechanism to correct error, ensure consistent application of immigration law, and develop uniform guidance nationwide. A system in which the Board declines to hear most cases shifts the center of gravity even further toward the immigration courts, making the immigration judge’s decision the operative final agency action in a much larger share of matters and reducing the availability of administrative error correction before a case reaches the federal courts (if judicial review is available at all).

For noncitizens and families, the most immediate impact is speed and finality. When a case is not accepted for review, the immigration judge’s decision will become final more quickly, which can compress the timeline for planning, compliance, and in some cases, removal. For employers, this change may matter most in situations where an employee’s status is affected by removal proceedings or collateral consequences, because fewer administrative layers may exist to pause or correct an adverse decision. For practitioners, the rule requires a retooling of litigation strategy: deadlines must be calendared immediately upon issuance of an immigration judge decision; record-building and issue preservation at the trial level become even more critical; and appellate filings must be drafted with an eye toward persuading the Board to accept review rather than assuming merits briefing will occur as a matter of course. It also becomes more important to identify at an early stage whether federal court review may be available and what steps are necessary to preserve those arguments.

Because this is an interim final rule, the Department may accept public comment and could revise the approach, but the key operational point is that it is effective immediately unless modified or rescinded. The takeaway for impacted individuals and stakeholders is straightforward: the appellate “safety net” that historically existed in many immigration court cases has narrowed considerably, and outcomes will increasingly be determined at the immigration judge stage with fewer opportunities for routine administrative appellate review.

Given these changes, early legal assessment is more important than ever. With fewer opportunities for routine administrative appellate review, the strength of a case at the immigration court level—and the strategic decisions made immediately after an immigration judge issues a decision—may determine the ultimate outcome. Individuals, families, and employers facing removal proceedings or adverse immigration decisions should consider seeking legal guidance as soon as possible to understand their options, applicable deadlines, and potential next steps. To learn more about how our firm evaluates cases and to begin the intake process, start here.

Key Takeaways

• The BIA now functions primarily as a discretionary appellate body.

• Immigration judge decisions will become final agency actions in most cases.

• Deadlines are significantly shorter, and procedural flexibility is reduced.

• Early, strategic case development is essential given limited appellate review.