Agreement to Make Public Unpublished BIA Decisions
Although interlocutory decisions and orders are not required to be made available, the Board of Immigration Appeals ("BIA") will begin to post all final opinions and orders (including remands) beginning no later than January 15, 2023.
For those readers unfamiliar with legalese, an interlocutory decision is a decision in immigration proceedings that does not result in a final disposition of proceedings, such as a decision relating to a motion to change venue or a motion for adjournment.
Specifically, all final opinions and orders within the meaning of 5 U.S.C. § 552(a)(2)(A) issued by the BIA in appeals from Immigration Judges and the Department of Homeland Security (“DHS”) district directors must be posted.
The stipulation agreement establishes a schedule for the initial posting of “interim fiscal year 2022,” “future,” and “past” BIA decisions.
Ultimately, beginning in fiscal year 2028 the BIA will post unpublished decisions within six months of the issue dates.
BIA decisions designated as "precedent decisions" are binding on all officers and employees of the DHS and Immigration Judges in the administration of United States immigration laws and in all proceedings involving the same issue or issues. See 8 C.F.R. § 1003.1(g). Precedent decisions have always been made available. Thus, the above described settlement agreement only concerns unpublished decisions.
Decisions that are not designated as precedent decisions are not universally binding in the administration of immigration law and other immigration proceedings. Unpublished decisions, also known as non-precedent decisions, only bind the parties involved in the matter or proceeding that is concluded by the unpublished decision. These unpublished decisions have not been made available to the public, but have only been issued to the parties directly affected by the unpublished decisions.
Unpublished decisions are valuable to others who are not directly governed by unpublished decisions because they can be used to frame persuasive legal arguments in similar cases and provide insight about how the BIA approaches or analyses certain issues. Also, it seems fair to surmise that increased transparency will make disparate treatment of similarly situated parties less likely.
Therefore, the settlement agreement between the New York Legal Assistance Group and the BIA to make unpublished decisions available to the general public is good news for immigration law practitioners and their clients.
It might even sound like news that is too good to be true!