A few days ago the Board of Immigration Appeals posted a super confusing amicus invitation.
Some of my colleagues have identified the case behind the solicitation. But why the secrecy? How can "members of the public" weigh in on a case that the invitation declines to mention, especially when the question provides no information on the statute, regulation, or constitutional precedent(s)
at stake?
This prompted me to wonder if there were any legal criteria or protocols to which the BIA was supposed to adhere when posing such questions. If so, what were they?
Down the rabbit hole
Under current regulations, the only apparent authority for the Board to recognize amicus briefs is tied to briefs for "person[s]," not policy questions.
A regulation authorizes amicus briefs for the benefit of a person. But nothing here references amicus curiae file a brief to support the Board's policy research.
"EOIR’s Board of Immigration Appeals Launches Pilot Program to Solicit Amicus Curiae Briefs" - The list of past solicitations of amicus briefs goas back to 2015.
The Obama-era program initiated a pilot project consistent with the ambit of the recent BIA solicitation. Its authority expired in 2016. That said, an Interim Final Rule published in March, 2026 references the practice, but the practice itself has no independent authority.
The Department also recognizes that, because these briefing procedures will apply when the Board has not summarily dismissed the case, such cases may present important or novel issues for the Board to resolve on appeal. Thus, this rule does not preclude the Board from exercising its expertise to determine whether to request or accept additional briefing to resolve the appeal. See8 CFR 1003.3(c) (“In its discretion, the Board may request supplemental briefing from the parties after the expiration of the briefing deadline.”); EOIR Policy Manual, pt. III, ch. 4.6(i) (last visited Jan. 30, 2026), https://www.justice.gov/eoir/reference-materials/bia/chapter-4/6 [ https://perma.cc/2QPY-HB5N] (discussing amicus curiae briefs); see also EOIR, Agency Invitations to File Amicus Briefs (Sept. 10, 2025), https://www.justice.gov/eoir/amicus-briefs [ https://perma.cc/6R64-8GAM] (explaining that EOIR “occasionally invites members of the public to file amicus curiae briefs addressing issues of significance” and allowing members of the public to subscribe to receive such invitations).
Is the incorporation of a protocol that expired in 2016 into an IFR enacted in March of 2026 sufficient to make it legal? No idea.
Post-2016 authority?
The authority for the recent solicitation is not tied to the 2026 IFR
but to a regulation that itself does not authorize this practice.
The invitation states its authority as EOIR Policy Manual, Part I: Introduction § 5.3(b)(6):
(6) Amicus Curiae - An appearance as amicus curiae is not a request to represent a party before the Board. Therefore, a Notice of Entry of Appearance Form is not required.
The Board generally limits the appearance of amicus curiae to the filing of briefs. See Part III, Chapter 3.6(i) (Amicus Curiae Briefs). Amicus curiae may request an opportunity to present oral argument, but such requests are granted sparingly. See Part III, Chapter 7.7(d)(5) (Supplemental briefs).
A person or organization wishing to make an appearance as an amicus curiae must file a written request with the Clerk’s Office, preferably with a cover page labeled “REQUEST TO APPEAR AS AMICUS CURIAE.” See Appendix A (Directory), Appendix D (Cover Pages). That request should specify the name and alien registration number (“A number”) of the matter in which an amicus curiae wishes to appear and articulate why amicus curiae should be permitted to appear. A brief should accompany the request to appear as amicus curiae. If the Board grants the request, the parties will be provided an opportunity to respond. See Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs). The( request and brief should be served on all parties to the proceedings. See Part III, Chapter 2.2 (Service on the Opposing Party).
The Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.
Tunnel One - Chapter 3.6 (i), the first link, has no reference to any authority for soliciting a brief on a question generated by the Board of Immigration Appeals:
(i) Amicus Curiae Briefs
Amicus curiae briefs are subject to the same rules as parties’ briefs. See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines). The filing of multiple coordinated briefs from different amici that raise similar points is disfavored. Rather, prospective amici should submit a joint brief along with the request to appear. See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae). In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.
Nothing here that allows amicus briefs on behalf of "issues" and not "person[s."
Tunnel Two - Part III, Chapter 7.7(d)(5) (Supplemental briefs) - also no authority for BIA soliciting an amicus brief on a policy question:
(5) Supplemental briefs - While the Board generally does not accept supplemental briefs, an exception is made for cases that have been granted oral argument. Parties may submit supplemental briefs in anticipation of oral argument, but parties are not sent a supplementary briefing schedule. Parties may submit supplemental briefs until 15 days prior to the date of oral argument. Parties may reply to supplemental briefs up until 7 days prior to the date of oral argument. Supplemental briefs should be directed to the Oral Argument Coordinator. Supplemental briefs are subject to the same requirements as other briefs. See generally Chapters 2 (Filing with the Board), 2.2 (Service), 3.6 (Appeal Briefs), 4.4 (Motion Briefs). Amicus curiae are subject to the same supplemental briefing rules and limitations as the parties. See generally Part I, Chapter 5.2(e) (Amicus Curiae); see also Part III, Chapter 3.6(i) (Amicus Curiae Briefs). Supplemental briefs must be served on the opposing party as expeditiously as they are served on the Board.
Again, nothing that allows amicus briefs on behalf of "issues."
Tunnel Three - Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).:
(h) Reply Briefs
(1) Appeals of Immigration Judges’ decisions issued before March 9, 2026 - The Board does not normally accept briefs outside the time set in the briefing schedule, including any brief filed by the appealing party in reply to the response brief of the opposing party. See subsection (f), above.
The Board may, in its discretion, consider an appealing party’s “reply brief” when the following conditions are met: (i) the brief is accompanied by a “MOTION TO ACCEPT REPLY BRIEF,” (ii) the motion is premised upon and asserts surprise at the assertions of the other party, (iii) the brief identifies and challenges the assertions of the other party, and (iv) the motion and brief are filed with the Board within 21 days of the filing of the other party’s brief. The brief should comply generally with the rules for motions. See Chapter 4.2 (Filing a Motion). If the appeal was filed by a detained alien, see Chapter 3.7(a)(2) (Detained cases).
The Board will not suspend or delay adjudication of the appeal in anticipation of, or in response to, the filing of a reply brief.
(i) Amicus Curiae Briefs
Amicus curiae briefs are subject to the same rules as parties’ briefs. See Chapter 3.6 (Appeal Briefs), 3.7 (Briefing Deadlines). The filing of multiple coordinated briefs from different amici that raise similar points is disfavored. Rather, prospective amici should submit a joint brief along with the request to appear. See generally Part I, Chapter 5.3(b)(6) (Amicus Curiae). In addition, the Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.
So also no additional authority for inviting amicus briefs tied to a policy question and not a specific person.
Why bother with any of this?
Because the stakes are huge. Do we want executive agencies appropriating the prerogatives of the judiciary and declaring statutes unconstitutional? Do we want the Department of Justice in particular to be doing this? What would this mean for the rule of law? If EOIR cannot follow its own internal rules, and if the BIA cannot form an intelligible legal question, do we really want the Board to be making constitutional decisions? Absent a concrete question tracking its own regulations, the only appropriate response to the BIA's solicitaiton appears to be rhetorical.
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