BREAKING: DOJ Empowers Board of Immigration Appeals to Strip Due Process From Migrants
Citing a 200,000-case backlog, the DOJ will now require an en banc vote just to hear an appeal—effectively making the original Immigration Judge the final word on deportation.
WASHINGTON — In a move advocates are calling a catastrophic blow to due process, the Department of Justice is set to publish a sweeping “Interim Final Rule” tomorrow that effectively dismantles the right to administrative appellate review for millions of people in the immigration system.
The new policy, scheduled for official publication in the Federal Register on February 6, 2026, transforms the Board of Immigration Appeals (BIA) from a mandatory review body into a discretionary one. Under the rule, the default outcome for all appeals will now be summary dismissal unless a majority of permanent Board members specifically vote en banc to accept the case for adjudication on the merits.
A System Designed to Dismiss
The Department’s primary justification for this radical shift is a massive backlog that has swelled to over 200,000 pending cases as of late 2025. Rather than increasing resources to provide meaningful review, the DOJ is choosing to “streamline” the process by simply closing the door on most appellants.
Key provisions of the rule include:
The 15-Day Guillotine: Summary dismissals must be issued within 15 days of the appeal being filed.
10-Day Filing Deadline: The time allowed to file an appeal is being slashed from 30 days to just 10 days for most cases.
Simultaneous Briefing: For the few cases that escape summary dismissal, both parties must now file briefs at the same time within 20 days, eliminating the traditional opportunity for a petitioner to respond to the government’s arguments.
Removal of Safeguards: The rule eliminates the requirement for Immigration Judges to review and approve transcripts of their oral decisions, a move the DOJ claims will save time but which critics fear will leave significant errors uncorrected.
“A Vessel for Delay”
In the text of the rule, the Department characterizes the BIA as currently functioning as “simply a vessel for further delay”. Officials argue that because the BIA rarely sustains appeals on the merits—citing data that only 123 out of 55,065 appeals were sustained between 2023 and 2025—the merits review is unnecessary.
However, for those navigating a complex and often hostile legal system, the BIA has long been the last line of defense against errors made in the lower courts. By forcing the Immigration Judge’s decision to become the “final agency decision” almost immediately, the DOJ is clearing the path for rapid deportations.
Language Matters
Reflecting a hardline shift in tone, the rule also mandates a return to the term “alien” across several regulatory parts, explicitly replacing the term “noncitizen” to conform to what it calls “statutory terminology”.
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