On May 22, 2020, Executive Office for Immigration Review (EOIR) Director James R. McHenry (Director), following up on a Policy Memorandum he published October 2, 2019 (PM 20-02), issued a decision in a request for accreditation ruling on when the deadline for the filing of a request to reconsider can be extended, the required grounds and standard of review for such a motion, what precedents are binding thereon, and what skills must be possessed by the person an organization seeks to have accredited.
Currently, the EOIR Office of Legal Access Programs (OLAP) administers the recognition and accreditation (R&A) program; in October 2019 it approved Bay Area Legal Services, Inc.’s (Applicant’s) application for recognition and extended this benefit to Applicant’s various offices. Applicant also requested that Carlos Betancourt be granted full accreditation; on October 16, 2019, OLAP “disapproved” the request but approved partial accreditation for him. On December 16, 2019, OLAP received a request for reconsideration of the disapproval, which it denied on February 19, 2020. Two days later, the Director notified Applicant that he would review the denial of reconsideration, specifying the following issues to be reviewed: 1) Whether the 30-day deadline for a request for reconsideration per 8 C.F.R. §1292.13(e) (and §1292.16(f) and §1292.17(d)) is subject to equitable tolling and, if so, what circumstances may warrant it; 2) What the appropriate legal standard is for evaluating a reconsideration request per these three regulatory sections; 3) What the appropriate standard of review is for administrative review under 8 C.F.R. §1292.18; and, 4) Whether prior precedents of the Board of Immigration Appeals (BIA or Board) in R&A cases are binding on reconsideration requests pursuant to §§1292.13(e), 1292.16(f) or 129.17(d) and on reviews conducted under §1292.18. An initial footnote explained that regulatory responsibility for the R&A program had been transferred from the BIA to OLAP in 2017, a process which had left open a number of questions related to R&A proceedings, because when the Board oversaw the program, the regulations specifically allowed for appearances by amicus curiae but, after the transfer, the regulations no longer expressly allowed for such appearances. To help address such issues, the Director notified Applicant that it could submit additional filings, including a brief and supplemental evidence and further invited amicus curiae to file pertinent briefs, as well. Applicant failed to file any documentation and one amicus brief was received. The Director affirmed OLAP’s denial of Applicant’s request for reconsideration.
Director McHenry initially discussed the background of the R&A Programs, explaining that its purpose is to “provide competent and affordable immigration legal services to persons of limited means through reputable nonprofit organizations.” Through the program, EOIR allows qualified non-attorneys to represent non-U.S. citizens before DHS, the immigration courts, and the BIA; organizations recognized by EOIR provide representation through accredited representatives and individuals representing such organizations may receive either full or partial accreditation. An applying entity must specify whether it seeks partial or full accreditation for a prospective representative and “must establish that the individual also possesses skills essential for effective litigation.” Until 2017, oversight of the program within EOIR lay with the Board, which occasionally issued precedent decisions “to provide guidance” for those requesting recognition or accreditation. When the Final Rule effectuating the transfer to OLAP became effective in January 2017, disapprovals of recognition or accreditation requests ( §1292.13(e)); disapprovals of requests for renewal of recognition or accreditation (§1292.16(f)); and, terminations of recognition or accreditation (§1292.17(d)) all became subject to one reconsideration request filed by an applicant within 30 days of the relevant decision.
Next, in setting forth the issues presented, the Director stated that Applicant’s reconsideration request was subject to the 30-day deadline but was untimely filed. The first question thus raised was “whether there is any basis to extend that deadline and to consider applicant’s request notwithstanding its untimeliness.” It was also noticed that OLAP denied the request as untimely but, in the alternative, denied it on the merits; the question was therefore also raised as to “what such a request must demonstrate in order to warrant consideration on its merits.” As OLAP’s decision was subject to administrative review, another issue was presented regarding “what standard should govern such reviews.” Lastly, explained Director McHenry, the merits of Applicant’s request appear to be controlled by BIA precedent, but a question is raised as to “the continued applicability of that precedent.”
Addressing untimely requests for reconsideration per 8 C.F.R.§§1292.13(e), .16(f), and .17(d), the Director first noted that, although such requests must be filed within 30 days of the relevant decision, OLAP may, as a matter of discretion, extend the deadline “for reconsideration of the disapproval of a recognition or accreditation request” per 8 C.F.R. §1292.13(a). However, he concluded, no similar regulatory authority exists for reconsidering disapprovals of renewal of recognition or accreditation requests or for termination of recognition or accreditation “on particular bases.”
As to the issue of equitable tolling, the decision stated that the 30-day deadline appeared to be a traditional claim-processing rule and that some claim processing rules may be subject to such tolling, “which tolls, or pauses, a relevant deadline for a person (or entity) who has diligently pursued his rights but nevertheless failed to file something timely” due to extraordinary circumstances. But, cautioned Directo McHenry, “not all claim-processing rules are subject to equitable tolling.” §1292 provided no authority for an equitable deadline extension, or for any extension at all, except as provided for in § .13(a) for a request for reconsideration of the denial of a request for recognition or accreditation. Nor is there any presumption that equitable tolling should apply to reconsideration requests in R & A proceedings. Further, such tolling is a remedy “founded in equity, and EOIR does not possess inherent non-statutory, free-floating equitable authority.” Thus, although OLAP may, as a matter of discretion, extend the deadline for a reconsideration request regarding the disapproval of a recognition or accreditation request under §1292.12(a), “the deadline for a request for reconsideration is otherwise mandatory.” No other regulation authorizes an extension of the 30-day deadline in §§1292.13(c), .16(f), or .17(d), and “equitable tolling cannot be invoked to extend the deadline.”
As to requests for reconsideration pursuant to 8 C.F.R. §§1292.13(e0, .16(f), and .17(d) that are timely filed, the regulations are silent on what, if anything, an applicant must show to obtain the requested relief. The Director found “no indication” that the reconsideration procedure set forth in the above-referenced 3 sections was meant to deviate from the “well-established standard” that such request “point to an error in the underlying determination, such as an error of fact or law” and there was no basis to conclude that the procedure “was intended to be subject to some other novel, unstated adjudictory parameter.” The opinion thus held that reconsideration requests under §1292.13(e), .16(f), and .17(d) must point to an error of fact or law (or both) in the underlying determination.
In addressing the standard of review for an administrative review conducted under 8 C.F.R. §1292.18, the Director first noted that the regulations allow for such review so that another entity would be able to review OLAP’s decisions, but do not enumerate the appropriate standard for review. He next stated that R&A adjudications are “largely, if not entirely, based on paper filing or other documentary evidence”; resultingly, both legal and factual determinations are based on the written record. The decision explained that, in R&A proceedings review of a denial of reconsideration is akin to BIA or AAO review of an administrative decision “due to the document-based nature of the underlying record than it is to Board review of an IJ decision. Similarly, the regulations do not bestow any deference upon an OLAP reconsideration decision, which the opinion found “consistent with a de novo standard of review,” as is OLAP’s ability to request additional information on review. As such, Director McHenry held that administrative reviews of reconsideration denials under §1292.18 must use a de novo review standard.
Regarding the application of Board precedent decisions to R&A proceedings, the decision first mentioned that the transfer of responsibility for such a proceedings from the BIA to OLAP left this exact issue unclear because, by regulation, Board decision are “binding on all officers and employees of DHS or immigration judges”, but R&A adjudicators “are neither officers or employers of DHS nor immigration judges”; this suggests that BIA precedents are not binding in R&A cases. Yet the very next subsection of this regulation mandates that Board precedents are binding in all proceedings involving the same issue unless modified or overruled by the BIA or Attorney General, which implies “that Board precedents do remain binding in R&A proceedings.” The Director thus held that, in the absence of a “clear and unmistakable” overturning of Board precedents in the R&A arena, particularly as such cases have provided useful guidance for nearly 35 years, relevant BIA precedents, unless overruled or superseded, continue to act as precedents in R&A proceedings involving similar issues.
As applied to Applicant’s case, with Director McHenry reviewing the reconsideration decision de novo, the opinion’s legal determinations helped to highlight that Applicant had not identified an error of fact in its reconsideration request; instead, it tacitly asserted a legal error, i.e., that the proof of Mr. Betancourt’s experience demonstrates “skills essential for effective litigation,” thus warranting full accreditation. OLAP had denied the reconsideration request as untimely and did not extend the 30-day deadline, which is not subject to equitable tolling. Therefore, there is no basis to extend the deadline and the Director affirmed OLAP’s decision to deny the request as untimely.
Finally, Applicant had submitted 12 documents with its initial filing which purported to demonstrate Mr. Betancourt’s essential litigation skills, then resubmitted them with the reconsideration request. These comprised briefs and motions he had prepared between 2002 and 2016. At least 3 skills had to be shown to obtain full accreditation, noted the decision: 1) the ability to advocate a client’s position at an immigration court hearing by presenting documentary evidence and questioning witnesses; 2) the ability to present oral argument before the Board; and, 3) the ability to prepare motions and briefs for consideration by an IJ or the BIA. Yet the record was devoid of his oral advocacy or case presentation skills before adjudicators, which are skills “essential for effective litigation”; similarly, the record was “completely devoid of evidence of any recent training or experience that would demonstrate such skills.” Accordingly, Director McHenry also agreed with OLAP that Applicant did not submit sufficient evidence of Mr. Betancourt’s essential litigation skills that would have warrant full accreditation. Therefore, even if the request for reconsideration had been timely, it would have been appropriately denied on the merits. The denial of the reconsideration request was thus affirmed. Matter of Bay Area Legal Service, Inc., 27 I&N Dec. 837 (Dir. 2020).