Thanks to DAPA, Winter is Coming for the BIA - 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." - Ben Winograd, Nov. 24, 2014.