BIA: IFR Follow-up

On March 8, 2026, United States District Judge Randolph D. Moss declared invalid and set aside "substantive portions of the IFR, 91 Fed. Reg. 5267 (Feb. 6, 2026)."

Significantly, the Court ordered that some of the dramatic changes to the Board's handling of appeals be stopped. The IFR provisions declared invalid and set aside include:

• The reduction of time to file most appeals from 30 days to 10 days

• The presumption of summary dismissal unless a majority of BIA members vote within 10 days to accept a case for review

• The allowance of dismissals before a transcript is created or a record created.

One provision not declared invalid yet (because no irreparable harm was found and because the innovation is relatively minor) is the requirement of simultaneous briefing in non-detained cases.  The Court said, "[i]t is difficult to see how extending the requirement of simultaneous briefing to non-detained cases, setting relatively tight briefing schedules, and limiting extensions and reply briefs cross that line." Opinion at 61. "That line" refers to this sentence:

As the D.C. Circuit has stressed time and again, the question “is one of degree”— that is, “whether the substantive effect is sufficiently grave so that notice and comment are needed to safeguard the policies underlying the APA.” Lamoille Valley R. Co., 711 F.2d at 328; see also JEM Broad. Co., 22 F.3d at 327.

The lawsuit is captioned Amica Center for Immigrant Rights et al. v. Executive Office for Immigration Review et al. (Case No. 1:26-cv-00696) (D.D.C. 2026).