Abstract

The first 100 opinions in Volume 29 of the Board of Immigration Appeals’ precedential decisions—issued at more than three times the historical pace—constitute a project. The Trump Administration has used the Attorney General’s self-referral power and a reconstituted, ideologically aligned Board to engineer a body of precedents that reliably produces one result: removal. This Essay organizes these decisions, cataloged in a full Appendix, into five main categories: (1) narrowing relief for noncitizens alleging persecution; (2) expanding mandatory detention while narrowing discretionary release; (3) maximizing the immigration consequences of criminal history and related grounds while foreclosing the relief mechanisms Congress created to mitigate them; (4) tightening the exceptional and extremely unusual hardship standard governing non-lawful permanent resident cancellation of removal; and (5) tightening the procedural rules governing immigration court proceedings, including the mechanisms through which noncitizens can preserve congressionally-created pathways to legal status. A parallel set of agency rule changes, partially vacated by a federal court but now being reissued through notice-and-comment rulemaking, seeks to insulate most deportation orders from meaningful appellate review. This Essay identifies three implications for federal courts. First, Loper Bright’s elimination of Chevron deference, combined with the Board’s institutional redesign and the uniformity of its outcomes, undermines any claim to persuasive weight. Many decisions should not survive de novo review. Second, the exhaustion doctrine’s justifications collapse when the administrative body to be exhausted has been rebuilt to foreordain a result. Third, the Board’s selective deployment of the civil/criminal distinction, invoked to deny protections when it benefits the government and to exclude favorable criminal law developments when it benefits the noncitizen, is a doctrinal choice that post-Loper Bright courts should examine without deference.

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