By Ben Winograd

In the long term, the series of memos comprising the administration’s “Executive Action” may finally reduce the historic backlogs facing our nation’s immigration courts. In the short term, however, the memos could exponentially worsen the extensive (and overlooked) backlog at the Board of Immigration Appeals (BIA). Absent further guidance from the administration, the BIA could receive thousands of additional appeals and motions in the coming months from respondents seeking to preserve their eligibility for the new Deferred Action for Parental Accountability (DAPA) program—a result that would further overwhelm the understaffed body.

To understand why “winter is coming” for the BIA, one must be familiar with both the requirements for DAPA and the new civil enforcement priorities for the Department of Homeland Security. (The memo discussing DAPA is here, and the memo discussing the enforcement priorities is here.) To qualify for DAPA, one must have resided in the United States since January 1, 2010, have at least one child who is a U.S. citizen or lawful permanent resident, and—importantly—not otherwise be considered an enforcement priority. Meanwhile, under the new memo on enforcement priorities, persons with final orders of removal issued on or after January 1, 2014, are considered “Level 3” priorities. Thus, immigrants who would otherwise qualify for DAPA could be precluded from such relief if their orders of removal happened to become final since the start of 2014.

What does this have to do with the BIA? Under federal regulations (8 C.F.R. 1241.1), the date an order of removal becomes “final” depends on whether the respondent filed an appeal. If the respondent either waived or failed to file an appeal, the order of removal is deemed final as of the date the waiver was made or the 30-day appeal period expired. However, if the respondent appealed the immigration judge’s decision, the order of removal does not become final unless and until the BIA dismisses the appeal.

As a result, potential DAPA applicants who received an order of removal from an immigration judge in the last 30 days—and those who receive orders of removal in the future—may feel compelled to file an appeal with the BIA simply to prevent their order of removal from becoming “final.” Meanwhile, respondents who were ordered removed by an immigration judge prior to 2014, but who have an appeal now pending at the BIA, may want to withdraw their appeal—or file a motion to have the case held in abeyance—to preserve their eligibility for DAPA. And respondents whose appeals were dismissed by the BIA on or after January 1, 2014, may seek to reopen their cases by any means possible.

Given the existing backlogs at the BIA, where many cases linger for more than a year after the submission of briefs, the forthcoming surge of appeals and motions could significantly extend the time it takes to resolve appeals. Absent further guidance from the administration, however, respondents who would otherwise be eligible for DAPA may be left with no choice.

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Below, the Immigrant & Refugee Appellate Center, LLC, provides preliminary thoughts for attorneys whose clients would be eligible for DAPA but for the existence of an order of removal that became final on or after January 1, 2014, or that may soon become final.

Removal Orders Issued by Immigration Judges For Which an Appeal May Still be Filed

Respondents who are otherwise eligible for DAPA, but who received an order of removal in the last 30 days, should file a timely appeal with the BIA. As explained above, doing so will render the removal order non-final, thereby preserving eligibility for DAPA unless and until the BIA dismisses the appeal. As always, attorneys should ensure their appeals comply with the requirements in the BIA Practice Manual.

In completing the Notice of Appeal form, which asks for a statement listing the reasons for appeal, attorneys should list any non-frivolous ground for appeal of which they are aware, as well as “any further issues discovered upon review of the transcript.” Attorneys should also be aware that filing a brief in support of an appeal will significantly extend the period of time it takes to resolve the appeal.

Removal Orders Issued by Immigration Judges On or After January 1, 2014, For Which No Appeal Was Filed

Two options appear to exist for respondents who were ordered removed by an immigration judge on after January 1, 2014, but who did not file a timely appeal. One option is to file an untimely appeal with the BIA. This option is unlikely to work. As a general rule, the BIA strictly enforces the 30-day appeal deadline. While the BIA will occasionally “certify” a case to itself to cure any issues regarding timeliness, it seems unlikely that it would do so for respondents merely seeking to preserve their DAPA eligibility.

The second option is to file a motion to reopen with the immigration judge who issued the order, asking the case to be administratively closed to allow the respondent to apply for DAPA. While filing a motion to reopen does not render the immigration judge’s prior decision non-final, ICE may agree to join the motion (or at least to not oppose it), or the immigration judge may grant it as a matter of discretion. If the case is reopened, the earlier order would no longer have effect, allowing the respondent to apply for DAPA.

Pending Appeals of Removal Orders Issued by Immigration Judges Before January 1, 2014

Respondents who were ordered removed by immigration judges before January 1, 2014, and who have pending appeals at the BIA, now face a difficult dilemma: whether to withdraw the appeal to ensure their eligibility for DAPA. Under federal regulations (8 C.F.R. 1003.4), the withdrawal of an appeal to the BIA renders the immigration judge’s decision final as though no appeal had ever been taken—and once withdrawal of the appeal is granted, the date the order became final reverts back to the date of the immigration judge’s original decision.

This dilemma is particularly difficult for respondents who believe the BIA is likely to rule in their favor. By withdrawing an appeal, respondents could forego their opportunity to obtain a more permanent form of relief, such as asylum or cancellation of removal. Instead of withdrawing the appeal, such respondents could ask the Board to hold the case in abeyance until their DAPA applications are submitted and adjudicated. See Chapter 5.9(i) of the BIA Practice Manual. If the DAPA application is granted, such respondents could then ask for administrative closure or for the BIA to resolve the appeal.

BIA Decisions Issued On or After January 1, 2014

Potential DAPA applicants whose BIA appeals were dismissed on or after January 1, 2014, should seek to have the Board reopen their cases by whatever means possible. If a petition for review was filed with a federal circuit court, reach out to the attorney for the Office of Immigration Litigation (OIL) to ask for a remand, which would render the order of removal non-final. If no petition for review was filed, file a motion to reopen with the BIA asking the Board to administratively close proceedings to permit consideration of the respondent’s future DAPA application. Again, while filing a motion to reopen does not affect the finality of the removal order, ICE may elect to join or at least not oppose the motion, or the BIA could grant it as a matter of discretion, rendering the respondent eligible for DAPA.