The Department of Justice (DOJ) issued an interim final rule (IFR) on Friday, granting the Board of Immigration Appeals (BIA) expanded discretion to decline review of certain immigration cases, a move that has prompted immediate due process concerns from immigration advocates.

In 2021, amid a rapidly growing backlog, the primary regulatory measure adopted to increase case completions was expanding the number of authorized Board members to 28. In 2025, however, Attorney General Pam Bondi reduced the Board’s membership to 15, stating that “the data available do[es] not conclusively demonstrate that the increased Board size will lead to increased case adjudications.”

The IFR, which will take effect on March 9, amends the DOJ’s regulations on administrative appellate review by the Board. The amendments make review of decisions by immigration judges on the merits discretionary, set “appropriate” times for briefing in cases that are reviewed on the merits, and streamline other aspects of the appellate process to ensure timely adjudications and avoid adding to the already sizable backlog at the Board. 

Immigrants’ rights advocates quickly raised due process concerns following the announcement. Ian Seruelo, an immigration attorney and chair of the San Diego Immigrant Rights Consortium, warned that the shortened appeal deadline, from 30 days to 10 days, could enable the Department of Homeland Security to detain and remove immigrants more rapidly. “Many of the policies that were implemented are meant to erode due process,” Seruelo said.

Advocates also cautioned that the rule could shift pressure from the BIA to the federal courts. If the Board summarily dismisses appeals, immigrants may seek relief directly in the federal courts of appeals. With 202,946 pending immigration-related appeals as of 2025, Seruelo argued that the regulation risks transferring, rather than resolving, the backlog. “What this will do is simply shift the caseload from the Board of Appeals to the federal court,” he said.

Greg Chen, senior director of government relations for the American Immigration Lawyers Association, described the rule as a fundamental change in how the system operates. “If cases are dismissed at the board level, people will be forced to file appeals directly in the federal courts,” he said. “Those courts could be swamped because the BIA is relinquishing its core role of reviewing appeals.” Courts are already inundated with other litigation stemming from the administration’s immigration policies, including habeas petitions from people in detention.

Courts may ultimately be asked to determine whether the regulation comports with statutory and constitutional due process requirements. Johnny King, an immigration attorney and former US Citizenship and Immigration Services counsel, stated that the rule is likely to face legal challenges once it takes effect.