The BIA was meant to be the “Supreme Court of immigration,” reviewing decisions by Immigration Judges and USCIS, interpreting the law, and setting precedents. It never quite worked out that way, as the Board has always been overwhelmed, understaffed, and has consistently failed to issue sufficient guidance to the nation’s Immigration Courts. But for all its flaws, the Board offered a modicum of hope that incorrect decisions could be corrected on appeal.
Now, however, new rules will change the way the Board of Immigration Appeals does business. These rules are meant to make the BIA into a rubber stamp for IJ decisions and will almost entirely eliminate due process for non-citizens at the administrative appellate level.
The need for changes at the Board is not in dispute. Between FY2015 and the end of FY2025 (September 30, 2025), the number of cases pending before the Board has increased from 37,285 to 202,946. In my experience, a typical appeal takes three to five years or longer. Various reforms over the years have done little to increase efficiency, and it has long been clear that something more radical needs to be done.
Unfortunately, the new rule is not what we were hoping for. Instead of improving efficiency and preserving due process of law, it eviscerates appellate review in order to quickly deny appeals en masse.
The most important change relates to how appeals will be decided. According to the rule, the “Board cannot—and does not need to—adjudicate every case on the merits.” Instead, “the default will be summary dismissal unless a majority of current Board members vote to consider the appeal on the merits.” These dismissals “will occur quickly—within 15 days of filing the appeal.”
What this means is that when a non-citizen appeals a decision in Immigration Court, the appeal will automatically be denied within 15 days unless a majority of BIA judges decides to review the case. There are currently 19 permanent and temporary BIA judges, and so 10 would need to agree to review the case; otherwise, the appeal will be dismissed. How this will work in practice, I have no idea. In FY2025, the BIA received an average of 8,300 appeals each month. They have a staff to assist them, but it seems impossible that the Board will sift through all these cases to find the ones worth adjudicating. I expect that in practice, many worthy appeals will never receive a fair review.
The new rule anticipates that after their appeal is denied, non-citizens will “seek Federal court review,” meaning they will file a petition for review with a federal appeals court. In this way, the new rule shifts the burden of reviewing Immigration Judge decisions from the BIA to the federal appellate courts. Way back in 2004, after a prior BIA reform designed to “increase the efficiency of immigration appeals and to reduce the backlog of pending immigration cases,” the federal courts were inundated with immigration cases. A committee of the New York Bar Association studied the problem, and found that “the BIA has ceased in practice to play the administrative appellate role which is its reason for existence…. The present dysfunctional and inefficient system wastes taxpayer money and unfairly imposes on the [federal appeals courts] almost the entire burden of assuring that the statutory rights of aliens, and the interests of all citizens in an effective immigration system, are vindicated.” Seems prescient, no?
To get a substantive review of the case in federal court will be prohibitively expensive for many people. The fee for an appeal to the BIA is $1,030, which buys you the privilege of having your appeal summarily dismissed in 15 days. There is a fee waiver, though these seem difficult to get (for more information, check out this helpful guide). Then there is the fee for federal court, which is $600 (a fee waiver may be possible). In addition, there are attorney’s fees, and these tend to be expensive, especially for cases in federal court, which are a lot of work.
Aside from destroying appellate review for nearly all cases, the new rule also imposes restrictions on the time frame to appeal. The rule changes the “deadline for filing an appeal with the Board from 30 to 10 days, except for cases involving certain asylum applications.” Asylum cases that are denied on the merits can still be appealed in 30 days, but asylum cases that are denied due to the one-year filing deadline, a safe third country agreement, or based on a previous asylum denial must be appealed in 10 days. Because this is confusing, it is safest to file any appeal within 10 days of the judge’s decision.
The new rule also “standardizes the Board’s briefing schedule… to require simultaneous briefing within 20 days of the Board setting the schedule in all cases not summarily dismissed, with no reply briefs and limited extensions.” Of course, the vast majority of cases will be denied without a brief, but for those few deemed important enough to review, the BIA is only allowing 20 days for the brief. Given that these cases will likely be complex (why else would the Board have deigned to review them?), and given that lawyers have busy schedules, 20 days is insufficient time for lawyers to do their best work.
These “hurry up” deadlines seem designed to impede non-citizens from exercising their appeal rights. The previous time frame for non-citizens to appeal their case and file a brief was only a fraction of the overall delay at the BIA, and it’s hard not to conclude that these new deadlines exist to punish non-citizens while doing little to improve efficiency.
The only positive news here is that these changes “apply only prospectively and not to appeals pending when the rule becomes effective” on March 9, 2026. So cases filed prior to that date will not be subject to summary dismissal.
However, for those appeals filed after the rule goes into effect, BIA “review” will amount to little more than an expensive charade. Sadly, the “Supreme Court of immigration” has become a pale imitation of what it should be, and we will need to look to the federal courts for any hope of Justice.