EOIR PM 25-22

OOD PM 25-22 Effective: February 20, 2025 To: All of EOIR From: Sirce E. Owen, Acting Director Date: February 20, 2025 ACCESS EOIR INITIATIVE PURPOSE: Re-establish appropriate, ethical, and lawful boundaries for the Access EOIR Initiative OWNER: Office of the Director AUTHORITY: 8 C.F.R. § 1003.0(b) CANCELLATION: None In September 2021, EOIR announced an Access EOIR Initiative with the laudable goal of “provid[ing] respondents, representatives, and the general public with more direct access to agency and case information and the systems that contain it.” See Executive Office for Immigration Review | Access EOIR Initiative.1 To that end, the Access EOIR initiative created a helpful centralized online repository of links to publicly-accessible EOIR systems, forms, and general case information. See id. In 2023, however, EOIR moved beyond merely providing more access to information and implemented secret policies related to case adjudications under the rubric of the Access EOIR Initiative. Those policies undermined EOIR’s impartiality and integrity, and, in some cases, appear to have violated federal regulations. They also inappropriately turned EOIR employees into potential witnesses in immigration court proceedings by requiring them to take several actions on behalf of one of the parties without giving the opposing party an opportunity to respond.

Most egregiously, they required EOIR employees to falsely stamp documents as being served when they had not yet, in fact, been served. Those secret policies related to case adjudications have already been rescinded,2 and the instant Policy Memorandum (PM) further cabins the scope of the Access EOIR Initiative. 1 https://www.justice.gov/eoir/access-eoir-initiative. 2 The memorandum issued by the Chief Immigration Judge on July 7, 2023, Evaluating the Use of Rejection Notices: The Access EOIR Approach, and Board of Immigration Appeals Policy Memorandum 23-02, Evaluating the Use of Rejection Notices: The Access EOIR Approach, were not published and were secret operational policies related to case adjudications.

As such, they were cancelled by Policy Memorandum 25-02, EOIR’s Core Policy Values. 1 Using the Access EOIR Initiative as a cover, the Office of the Chief Immigration Judge (OCIJ) issued a secret operational policy related to case adjudication in July 2023 which was improper and problematic, if not also unlawful, in multiple ways.3 For example, that policy directed employees of EOIR’s Office of Policy (OP) to accept certain email filings from certain respondents,4 regardless of whether the respondent’s case was subject to electronic filing; verify information about the case in EOIR’s internal database, even though that has never been a function of OP; and, submit the filing to the appropriate immigration court, which would then place the filing in the record—all of which was done without regard to whether the filing had been served on the Department of Homeland Security (DHS), as required by 8 C.F.R. § 1003.32. The secret OCIJ policy also directed EOIR employees to accept change of address forms from certain respondents without a ZIP code, noting inexplicably that if an EOIR employe could not determine the ZIP code, then the respondent should be asked for a correct ZIP code at the next hearing.5 It also directed EOIR employees to attempt to look up a respondent’s ZIP code if it were missing, contrary to any EOIR employee’s job description and contrary to EOIR’s expectation that its employees will remain impartial and not become witnesses in immigration court proceedings. Most disturbingly, the policy also directed immigration court employees to (1) accept certain filings from respondents without proof of service on DHS, contra 8 C.F.R. § 1003.32(c); (2) stamp the filing to indicate that it had been served on DHS—even though it had not actually been served on DHS; and, (3) then serve the filing on DHS.

This procedure, in which EOIR employees were required to accept a document contrary to applicable law, falsely stamp a document saying that it had been served when, in fact, it had not been served, and only then serve the document themselves was, at the least, contrary to regulations and a violation of EOIR’s ethical requirement to be impartial and, at worst, potentially criminal, see 18 U.S.C. § 1001(a) (prohibiting various types of false statements, writings, or representations in government matters).6 Overall, the secret operational policies related to case adjudications issued under the banner of the Access EOIR Initiative disturbed, without a sufficient explanation, longstanding EOIR policies related to requirements for completeness of filings and service on the opposing party, overrode 3 Although this PM focuses on the secret policy issued by OCIJ, the Board of Immigration Appeals also issued one containing similar flaws. This PM should be read to apply to all EOIR components, even if not specifically mentioned by name. 4 Additionally, it appears OP was directed to accept certain email filings only from Spanish-speaking respondents, but no explanation was given for this limitation. Whether this policy unlawfully discriminated against non-Spanish- speaking respondents is beyond the scope of this PM, but such a limitation was, at the least, markedly inappropriate in the absence of an explanation.

5 Because any hearing notice for the alien’s next hearing could not be properly mailed without a ZIP code, it is unclear how a respondent could be properly served with a future hearing notice and expected to attend a future hearing, and the OCIJ policy did not even attempt to explain or address this problem. Further, applicable law requires the submission of a valid ZIP code before a change of venue may be granted. 8 C.F.R. § 1003.20(c). Thus, in situations where the new address would implicate a new venue, an immigration judge would be prohibited from issuing a change of venue, and there would be even less expectation for a respondent to appear at a future hearing in such a situation.

6 To be clear, no EOIR employee will be referred for criminal prosecution for falsely stamping documents as served on DHS pursuant to one of the secret policies issued under the Access EOIR Initiative, nor will any such employee be subject to disciplinary or corrective action. However, whether any corrective or disciplinary action for the managers and supervisors who devised and implemented these policies is warranted is beyond the scope of this PM. 2 Immigration Judge independence regarding whether to accept incomplete or inaccurate filings, compromised the agency’s impartiality and integrity, and needlessly placed EOIR employees in the uncomfortable position of, effectively, working on behalf of one party, including taking potentially unlawful actions on that party’s behalf. EOIR cannot—and will not—countenance such actions.

Moreover, however well-intentioned these policies may have been, those intentions cannot justify ignoring or breaking the law. Properly understood, the Access EOIR Initiative was a commendable idea, particularly because it centralized a lot of disparate information in one, easily-accessible location. However, efforts to transform it into an advocacy or service-provider program for respondents went well beyond EOIR’s mission and its central role as a neutral and impartial adjudicatory agency. Moreover, those efforts also required EOIR employees to perform functions inappropriately beyond their position limitations and, in some cases, in violation of law.

Accordingly, to remedy these serious issues, the Access EOIR Initiative is returned to its original form and limited to providing greater access to information online regarding EOIR. If not already rescinded and cancelled, any policies expanding the Access EOIR Initiative beyond that original conception are rescinded and cancelled. Further, no potential future expansion of the Access EOIR Initiative may occur unless it is consistent with EOIR’s Core Policy Values, see PM 25-02 EOIR’s Core Policy Values (Jan. 27, 2025), and is approved by the EOIR Director or the Director’s designee.

This PM is not intended to, does not, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing herein should be construed as mandating a particular outcome in any specific case. Nothing in this PM limits an adjudicator’s independent judgment and discretion in adjudicating cases or an adjudicator’s authority under applicable law. Please contact your supervisor if you have any questions.

3