The Department of Justice issued an interim final rule that streamlines administrative appellate review by the Board of Immigration Appeals (BIA) by making review of decisions by immigration judges on the merits discretionary, setting appropriate times for briefing, and streamlining other aspects of the appellate process. The rule takes effect March 9, 2026. This is one of the most significant changes to BIA procedures in decades and will reshape how you advise clients facing removal orders.
What changed
For all appeals of decisions issued on or after March 9, 2026, the Board shall summarily dismiss the appeal unless a majority of permanent Board members vote to accept the appeal for adjudication on the merits. Merits review is now discretionary—a majority vote of permanent Board members is required to accept a case for review, and if the Board does not affirmatively elect to hear the case, the appeal is summarily dismissed.
The rule also reshapes the appeal timeline. The timeframe for an extension of briefing on appeal is shortened from 90 to 14 days. The government and individuals facing removal while not in custody now must file briefs simultaneously instead of consecutively, eliminating the opportunity for people to fully understand and respond to the government’s arguments for their removal. The rule removes the BIA’s ability to reopen a case or reconsider a prior removal order on its own authority, except in very limited circumstances.
Extensions are authorized only in cases of exceptional circumstances as defined by section 240(e)(1) of the INA, referring to exceptional circumstances such as battery, extreme cruelty, serious illness, or death of family members—but not less compelling circumstances.
Why it matters
You are losing a critical safeguard for your clients. Historically, filing a timely Notice of Appeal guaranteed appellate review by the BIA—while not every appeal resulted in reversal, each case received substantive consideration under established appellate standards. Summary dismissal is now the default outcome, meaning many immigration judge decisions may become final agency action without full appellate analysis.
The practical pressure on your clients is severe. If cases are dismissed at the BIA screening stage, more individuals will need to file Petitions for Review in the U.S. Courts of Appeals along with emergency stay motions to prevent removal—proceedings that are highly technical and procedurally demanding, requiring experienced appellate counsel and careful legal analysis. This pushes clients toward more expensive federal litigation just to preserve their rights.
The DOJ points to a 38% increase in BIA appeals since 2018 as justification for the rule. However, while DOJ claims these changes as efficiency measures designed to address backlog, immigration attorneys believe they reduce layers of procedural protection in removal proceedings.
Even before the March 9 effective date, courts have begun examining the rule’s constitutionality. On March 8, 2026, a federal court blocked key provisions from this new rule from going into effect while allowing others to go into effect on March 9, 2026. However, the blockage is partial—some provisions remain in effect while others are enjoined, creating a split landscape you must navigate.
Way forward
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Calendaring is critical. Set strict post-hearing protocols to file your Notice of Appeal within the applicable deadline. A missed deadline will result in the immigration judge decision becoming final with very limited recourse.
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Gather extension justifications in advance. Since extensions are now limited to “exceptional circumstances,” document any compelling reason for additional briefing time before you need it. The 14-day window is tight.
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Brief simultaneously for non-custody cases. For respondents not in custody, prepare to respond to government briefs within the simultaneous 20-day timeline rather than sequentially. This requires immediate case assessment and early coordination with your client.
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Plan for federal court. If the BIA dismisses summarily, evaluate the likelihood of federal court review and secure experienced appellate counsel early. Federal litigation will likely be necessary for many cases.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. It is provided by a software company, not a law firm. Consult with a licensed immigration attorney before taking any action based on this information. Immigration policy can change without notice, and court orders may affect the application of these rules. You should verify the current status of this rule and any applicable court orders against the source documents linked above before relying on any information herein.