UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON REGIONAL OFFICE

U.S. Department of Justice
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041
Petitioner/Agency

CASE NO. WA-RP-19-0067

and
National Association of Immigration Judges
IFPTE Judicial Council 2
606 South Olive Street
Floor 15
Los Angeles, CA 90014
Union/Labor Organization

Filed: January 3, 2020

AGENCY PREHEARING BRIEF
The U.S. Department of Justice, Executive Office for Immigration Review (Agency), by
and through undersigned counsel, respectfully submits this Prehearing Brief for consideration by
the Authority.
ARGUMENT
At a minimum, immigration judges create, prescribe, bring about or obtain results that
direct, bind, or otherwise determine courses of action by the Agency; accordingly, they are
management officials as defined in 5 U.S.C. § 7103(a)(11) and should be excluded from a
bargaining unit.
For purposes of federal labor statutes, a bargaining unit excludes, inter alia, management
officials. 5 U.S.C. § 7112(b)(1) (2018). A management official “means an individual employed
by an agency in a position the duties and responsibilities of which require or authorize the
individual to formulate, determine, or influence the policies of the agency.” Id. § 7103(a)(11).
The United States Federal Labor Relations Authority (FLRA or the Authority) has ascribed the

1

 following definitions to the relevant terms in § 7103(a)(11): “‘Formulate’ means to create, to
establish or to prescribe; ‘determine’ means to decide upon or to settle upon; ‘influence’ means
to bring about or to obtain a result; and ‘policies’ are general principles, plans or courses of
action.” Dep’t of Navy Automatic Data Processing Selection Office & Am. Fed’n of Gov’t Emps.,
Local 1, 7 F.L.R.A. 172, 175 (1981).
The Department of Justice Executive Office for Immigration Review (EOIR or the
Agency) petitions to clarify the bargaining unit status of immigration judges pursuant to 5 U.S.C.
§ 7111(b)(2). The Agency recognizes that the Authority previously considered this question and
determined that immigration judges are not management officials as defined in 5 U.S.C. §
7103(a)(11). U.S. Dep’t of Justice, Exec. Office for Immigration Review, Office of the Chief
Immigration Judge and Nat’l Association of Immigration Judges, 56 F.L.R.A. 616 (2000)
[hereinafter OCIJ Decision]. Nevertheless, as discussed herein, the Agency respectfully submits
that decision is not dispositive of the instant petition.
Because immigration judge duties and authorities are defined by law—i.e. title 8 of the
United States Code, including the Immigration and Nationality Act (INA or the Act), title 8 of
the Code of Federal Regulations, and federal court precedent—rather than simply by a position
description and because immigration judges are presumed to follow the law, 1 the Agency
perceives few, if any, material facts in dispute regarding its petition. 2 Rather, applicable and

1

Although the Agency does not expect such evidence, it does reserve the right to bring additional arguments if
evidence is produced at the hearing indicating that immigration judges act contrary to or in excess of their legal
authorities.
2
As noted, the Agency’s arguments are primarily, if not entirely, legal arguments based on well-established law in
statutes, regulations, and case law, including law that has developed subsequent to the OCIJ Decision. To the extent
there are particular facts relevant to the disposition of the Agency’s arguments, those facts—e.g. the employment
status of immigration judges, the current existence of a bargaining unit, the dates of regulatory changes, the dates of
case decisions—appear undisputed. Consequently, the Agency’s pre-hearing statement relies solely on citations to
legal sources available in Westlaw or through other public channels, is not premised on any disputed factual
assertions, and does not affect the scheduled hearing on its petition. Nevertheless, the Agency reserves the right to

2

 binding law, including statutes, regulations, federal court precedents, and Authority precedents—
particularly U.S. Dep’t of Justice Bd. of Immigration Appeals (BIA or the Board) and Am. Fed’n
of Gov’t Emps., Local 3525, 47 F.L.R.A. 505 (1993) [hereinafter BIA Decision]—clearly
demonstrate that immigration judges, at the least, create, prescribe, bring about or obtain results
that direct, bind, or otherwise determine courses of action by the Agency. Accordingly, based on
the law set forth more fully below, the Agency respectfully argues that immigration judges are
management officials as defined in 5 U.S.C. § 7103(a)(11) and, thus, should be excluded from a
bargaining unit.
I.

The OCIJ Decision was wrongly decided, is inconsistent with applicable law, and
has been undermined due to subsequent substantial changes in the law affecting the
impact of decisions rendered by immigration judges; accordingly, it is not
dispositive of the outcome of the instant petition.
Authority case law provides few guidelines for the parameters for reexamining or

overruling its prior precedent. Nevertheless, it is clear that an agency or a bargaining unit may
request that the Authority reconsider a prior precedent. See, e.g., Int’l Bhd. of Elec. Workers and
U.S. Army Corps of Eng’rs, 55 F.L.R.A. 243, 245 (1999) (agreeing with a union to reconsider
prior precedent); Nat’l Treasury Emps. Union Chapter 302 and U.S. Dep’t of the Treasury,
Office of the Comptroller of the Currency, 65 F.L.R.A. 746, 747 (2011) (agreeing with a union
that a prior precedent was wrongly decided and should be reexamined), overruled by U.S. Dep’t
of Energy, W. Area Power Admin. and Am. Fed’n of Gov’t Emps., Local 3824, 71 F.L.R.A. 111
(2019). Authority case law is also clear that the Authority itself may reconsider its prior
precedent. See, e.g., U.S. Small Bus. Admin. and Am. Fed’n of Gov’t Emps., Local 3841, 70
F.L.R.A. 525 (2018) (“This case presents us with an appropriate opportunity to reexamine the

put forth any additional arguments at the conclusion of the hearing based on any subsequent legal developments or
any evidence or facts adduced at the hearing.

3

 Authority’s precedent . . . . [and] we reverse that precedent . . . .”). Regarding an existing
bargaining unit certification, the Authority has indicated that—at least following an agency
reorganization—an existing unit remains appropriate unless there has been a substantial change
or significant alteration of the scope and character of the unit. See, e.g., Dep’t of the Interior
Nat’l Park Serv. W. Reg’l Office S.F., Cal. and Nat’l Fed’n of Fed. Emps., Local 1, Indep., 15
F.L.R.A. 338, 341 (1984) (rejecting agency’s petition and holding that existing certified units
remained appropriate where their “scope and character” had not been “substantially changed”
following several reorganizations); Dep’t. of the Interior Nat’l Park Serv. Mid-Atl. Reg’l Office
Phila., Pa and Local 2058, Am. Fed’n of Gov’t Emps., 11 F.L.R.A. 615, 616 (1983) (rejecting
agency’s petition where no “substantial change [shown] in the scope and character” of the
certified unit, inasmuch as a reorganization had not “significantly altered” the unit).
This “substantial change” requirement arose in the context of clarifying bargaining units
following agency reorganizations, but that is not the scenario presented by the Agency’s petition.
The Authority has also sometimes looked at whether “meaningful change” has occurred
regarding the factual duties of a position after a bargaining unit was certified. See, e.g., Fed.
Trade Comm’n and Am. Fed’n of Gov’t Emps., Local 2211, 35 F.L.R.A. 576, 583–84 (1990).
Neither of these lines of cases is on point or dispositive of the instant petition, however, because
they considered only the possibility of factual changes regarding a position’s duties; neither
considered changes in the legal significance of a position vis-à-vis the ability of the position to
direct or bind an Agency’s course of action. The Agency has not located any Authority
precedent directly addressing changes in the law that concomitantly clarify or amplify a
position’s ability to determine, formulate, or influence an agency’s policy. Consequently, the

4

 Agency asserts that there is not necessarily an Authority precedent 3 clearly applicable to its
petition; nevertheless, to the extent that the Regional Director and the Authority would require
some level of “substantial change” (or something similar) as a basis for the Agency’s petition
due to the OCIJ Decision, the Agency asserts that such a substantial legal change has occurred.
See part I.B, infra. Accordingly, for the reasons set forth herein, the Agency respectfully asserts
that the OCIJ Decision is not dispositive of its petition in the instant case and, if necessary,
should be reexamined and overturned. 4
A. The OCIJ Decision was wrongly decided and is inconsistent with applicable law.
In finding that immigration judges are not management officials, the OCIJ Decision, with
scant analysis, rejected the argument that immigration judge decisions can direct the Agency or
bind it to a course of action. OCIJ Decision at 619 (quoting the Regional Director’s decision that
immigration judges do not “have the authority to direct or commit the [A]gency to any policy or
course of action”). That conclusion is flatly contrary to existing principles of administrative law,
in which an immigration judge decision may become the final Agency decision which then binds
the Agency and potentially requires the Agency to defend it in subsequent federal litigation. See,
e.g., Dia v. Ashcroft, 353 F.3d 228, 240–41, 243 (3d Cir. 2003) (en banc) (“The streamlining
regulations in no way restrict our ability to review the agency’s denial of relief from removal. An
agency, not a particular administrative appellate body, must set forth the basis for its order with
sufficient specificity to permit meaningful review by this court. . . . Here, as we discuss in the

3

The Agency notes that the absence of such a precedent would be a ground for Authority review if such review is
sought. 5 C.F.R. § 2422.31(c)(1) (2019).
4
The Agency recognizes that the Regional Director may be bound to follow the OCIJ Decision absent a showing of
substantial change (or something similar) and may not necessarily possess the authority to overturn it. Cf. 5 C.F.R. §
2422.31(c)(3)(i) (2019) (tacitly suggesting that a Regional Director is bound to apply established law by providing a
basis for seeking Authority review when there is a genuine issue over whether the Regional Director failed to apply
established law). Nevertheless, the Agency raises the argument that the OCIJ Decision should be reexamined and
overturned in order to preserve the issue for further review if such review is sought.

5

 next section, we have no doubt as to the basis for the agency’s decision as put forth for review by
the BIA. The BIA presents for our review the reasoning and decision of the IJ as that of the
Attorney General.” (first emphasis in original; second and third emphases added)); see also Part
II, infra (discussing the law regarding immigration judge adjudications and their impact on
administrative policy through those adjudications).

Similarly, both the Regional Director and the Authority rejected the applicability of the
BIA Decision. OCIJ Decision at 622. The Regional Director found the BIA Decision inapplicable
or distinguishable for numerous reasons:

Immigration Judges apply immigration law and regulation to make decisions in
individual cases. Their decisions are not published, do not constitute precedent, are
binding only on the parties to the case, and are routinely appealed and subject to de
novo review. As such, the role of the Immigration Judge is readily distinguishable
from that of the Immigration Board of Appeals member in BIA, who reviews the
Immigration Judges decisions; who issues the final administrative ruling in cases;
whose decisions constitute precedent binding on the judges below, and who thereby
influence and determine immigration policy. BIA, id, at 509.
Decision of the Regional Director, U.S. Dep’t of Justice, Executive Office for
Immigration Review, Office of the Chief Immigration Judge and National Association of
Immigration Judges at 9 (May 9, 2000). The Authority then found that the Regional Director did
not fail to apply established law, including the BIA Decision. OCIJ Decision at 622.

Each of these conclusions is incorrect as a matter of law or otherwise fails to legally
distinguish the applicability of the BIA Decision. Immigration judge decisions are not published,
but most Board decisions are not published either. Compare Board of Immigration Appeals:
Affirmance Without Opinion, Referral for Panel review, and Publication of Decisions as
Precedents, 84 Fed. Reg. 31,463, 31,468 (July 2, 2019) (codified at 8 C.F.R. pts. 1003, 1292)
(the Board averaged approximately 29 precedential decisions per year between 2005 and July

6

 2019) with Executive Office for Immigration Review Adjudication Statistics, Case Appeals Filed,
Completed, and Pending (Oct. 23, 2019), available at
https://www.justice.gov/eoir/page/file/1198906/download (reflecting the annual issuance of
approximately 20,000 Board decisions overall in cases decided by immigration judges).
Immigration judge decisions do not constitute precedent, but the decisions of individual Board
members do not constitute precedent either. See 8 C.F.R. § 1003.1(g)(3) (2019) (requiring a
majority vote of permanent Board members to designate a precedent). In fact, no single Board
member—nor even a panel of three Board members—has the authority to issue a precedent. Id.
Immigration judge decisions are binding on the parties to a case, just as Board decisions are
binding on the parties to a case. Not all immigration judge decisions are subject to appeal. See 8
C.F.R. §§ 1003.42(f), 1208.30(g)(2)(iv)(A), 1208.31(g)(1), 1235.3(b)(5)(iv), and 1240.15
(2019). Immigration judge decisions subject to appeal are appealed to the Board, just as Board
decisions are subject to appeal and are frequently appealed to federal court. See San Francisco v.
U.S. Citizenship and Immigration Servs., 944 F.3d 773, 807–08 (9th Cir. 2019) (Bybee, J.,
concurring) (“We [the Ninth Circuit] have experienced a staggering increase in asylum
applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018
we received about 97,000—nearly a twenty-fold increase.”). Immigration judge decisions subject
to appeal may have been subject to full de novo review at the time of the Regional Director’s
decision, but that is no longer legally correct. See Board of Immigration Appeals: Procedural
Reforms To Improve Case Management, 67 Fed. Reg. 54,8777, 54,888–90 (Sept. 25, 2002)
(codified as 8 C.F.R. § 1003.1(d)(3)(i)); see also Matter of S-H-, 23 I&N Dec. 462 (BIA 2002)
(“Under new regulations that become effective on September 25, 2002, the Board of
Immigration Appeals has limited fact-finding ability on appeal, which heightens the need for

7

 Immigration Judges to include in their decisions clear and complete findings of fact that are
supported by the record and are in compliance with controlling law.”). A Board member does not
necessarily issue the final administrative ruling in every immigration case. For cases not subject
to appeal to the Board, the immigration judge issues the final administrative ruling. For purposes
of judicial review, if the Board affirms without opinion or adopts the immigration judge’s
decision, then the immigration judge’s decision is treated as the final administrative ruling
subject to review. See Part I.B., infra.
In short, the OCIJ Decision was contrary to both established principles of administrative
law and Authority precedent, namely the BIA Decision. Accordingly, for all of the reasons set
forth herein, it warrants reexamination and, if necessary, overturning.

B. Even if the OCIJ Decision were correctly decided based on the record at the time
of the hearing in June 1998, subsequent substantial changes in the law affecting
the legal significance of immigration judge decisions renders that decision
inapposite or, at the least, subject to reexamination.
Changes in the law subsequent to the 1999 hearing in the OCIJ Decision—including,
inter alia, regulatory changes regarding Board review of immigration judge decision and
subsequent federal circuit court precedent interpreting those changes, regulatory changes
regarding deference to immigration judge factual findings, and Supreme Court precedent
regarding whether administrative judges are Officers under the Constitution—constitute
substantial changes in the ability of immigration judges to determine, formulate, or influence
policy of the Agency, particularly in litigating challenges to those decisions in federal courts.
Such substantial changes mean that the OCIJ Decision does not control the disposition of the
Agency’s petition.

8

 1. Streamlining Regulations and Subsequent Federal Circuit Court
Decisions
For example, in October 1999—after the hearing in the OCIJ Decision case, which
occurred the week of June 28, 1999, and after the submission of the Agency’s written, posthearing statement on August 10, 1999—the Agency established a streamlining procedure for
Board consideration of appeals from immigration judge decisions, including the use of an
“affirmance without opinion” format by single Board members. Executive Office for
Immigration Review; Board of Immigration Appeals: Streamlining, 64 Fed. Reg. 56,135 (Oct.
18, 1999) (codified at 8 C.F.R. pt. 3). As this change occurred after the hearing and the
submission of post-hearing statements in the OCIJ Decision, it was not considered by either the
Regional Director or the Authority. Further changes to this streamlining initiative occurred in
2002, as the Agency expanded review of immigration judge decisions by a single Board member,
allowing a single Board member to not only affirm immigration judge decisions without an
opinion, but also to affirm the immigration judge decision with a simple explanation. Board of
Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,877,
54,885–87 (Sept. 25, 2002) (codified as 8 C.F.R. § 1003.1(d)(3)(i)). In doing so, the Agency
noted the primacy of the immigration judge’s determinations in justifying the Board’s ability to
affirm decisions without a separate opinion. Id. at 54,885 (“The immigration judge’s order
provides the rationale, and thus the legitimacy, for the Board's summary affirmance.”). This
change further increased the use of streamlining procedures by the Board in reviewing
immigration judge decisions, leading to more immigration judge decisions becoming the final
decision of the agency. See Yuk v. Ashcroft, 355 F.3d 1222, 1229 (10th Cir. 2004) (“This
provision [now 8 C.F.R. § 1003.1(e)(4)(ii)], part of the ‘streamlining regulations’ originally

9

 promulgated in 1999, was initially used sparingly. Its use increased dramatically since early in
2002, in an effort to reduce the backlog of cases pending before the BIA.”).
These streamlining regulations were challenged in every federal circuit court in the
United States that hears appeals of immigration court decisions, and every federal circuit court
upheld them. In doing so—and reiterated throughout the subsequent years—every federal circuit
court that hears appeals of immigration court decisions held or reaffirmed that when the Board
summarily affirms an immigration judge’s decision or adopts even a part of the immigration
judge’s reasoning, circuit court review includes review of the immigration judge’s decision. See,
e.g., Albathani v. Immigration and Naturalization Servs., 318 F.3d 365, 373, 377 (1st Cir. 2003)
(“‘Ordinarily, Courts of Appeals review decisions of the [BIA], and not those of an IJ. When the
BIA does not render its own opinion, however, and either defers [to] or adopts the opinion of the
IJ, a Court of Appeals must then review the decision of the IJ. . . .’ [citing Gao v. Ashcroft, 299
F.3d 266, 271 (3d Cir. 2002)] But both [petitioner and amici] overlook the plain language of
Chenery, which refers to agencies in their entirety, not individual components of agencies. Here,
the relevant agency—the INS—has presented a statement of reasons for its decision, albeit from
the IJ rather than the BIA. Chenery does not require that this statement come from the BIA rather
than the IJ.”); Chen v. Bd. of Immigration Appeals, 435 F.3d 141, 144 (2d Cir. 2006) (“When the
BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. §
1003.1(e)(4), we review the IJ’s decision as the final agency determination. Similarly, when the
BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. When the
BIA agrees with the IJ’s conclusion that an asylum applicant is not credible and emphasizes
particular aspects of the IJ’s decisions, we review both the BIA’s and the IJ’s opinions. When the
BIA affirms the IJ’s decision in all respects but one, we review the IJ’s decision as modified by

10

 the BIA decision, i.e., ‘minus the single argument for denying relief that was rejected by the
BIA.’ Similarly, when the BIA issues a short opinion affirming the IJ’s decision in part and
modifying it in part, we review the IJ’s opinion as modified by the BIA. When the BIA adopts
the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as
supplemented by the BIA. When the BIA does not adopt the decision of the IJ to any extent, we
review only the decision of the BIA.” (internal citations omitted)); Dia v. Ashcroft, 353 F.3d 228,
240–41, 243 (3d Cir. 2003) (en banc) (“The BIA clearly ‘invokes’ the IJ's opinion as the grounds
on which the agency's decision rests; we thus ‘judge the propriety’ of the IJ's action in order to
‘test’ the agency’s action. . . . The streamlining regulations in no way restrict our ability to
review the agency’s denial of relief from removal. An agency, not a particular administrative
appellate body, must set forth the basis for its order with sufficient specificity to permit
meaningful review by this court. Here, as we discuss in the next section, we have no doubt as to
the basis for the agency’s decision as put forth for review by the BIA. The BIA presents for our
review the reasoning and decision of the IJ as that of the Attorney General. All that is required
for our meaningful review is that the agency—as represented by an opinion of the BIA or IJ—
put forth a sufficiently reasoned opinion.” (internal citations omitted)); Blanco de Belbruno v.
Ashcroft, 362 F.3d 272, 281 (4th Cir. 2004) (“The familiar Chenery directive, however, provides
no basis for finding the summary affirmance procedure here defective. Belbruno overlooks the
fact that the Immigration Judge’s opinion provides the reasoned basis on which the BIA and the
INS as an agency relied, and which we review here. In fact, the summary affirmance regulations
specifically establish that the Immigration Judge's decision serves as the final agency action. 8
C.F.R. § 3.1(a)(7)(iii) (2002). This satisfies the requirements of Chenery: the proper emphasis is
on whether there are reasoned bases for the actions of the agency as a whole, and the

11

 Immigration Judge’s opinion serves that purpose.”); Garcia-Melendez v. Ashcroft, 351 F.3d 657,
660, 660–61, 663 (5th Cir. 2003) (“Under 8 C.F.R. § 1003.1(a)(7)(iii), the underlying decision
of the IJ, not the BIA’s summary affirmance, is the proper subject of judicial review. . . . This
Court must affirm the IJ’s decision if there is no error of law and if reasonable, substantial,
probative evidence on the record, considered as a whole, supports his factual findings. . . .
Further, when the BIA uses the streamlining process, the underlying decision of the IJ is the
decision that this Court reviews.”); Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005) (“When
the BIA summarily adopts the decision of the IJ without issuing its own opinion, we review the
decision of the IJ as the final administrative order.”); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th
Cir. 2003) (“Since we review directly the decision of the IJ when a case comes to us from the
BIA pursuant to § 1003.1(a)(7), our ability to conduct a full and fair appraisal of the petitioner’s
case is not compromised, and the petitioner's due process rights are not violated.”); Tawm v.
Ashcroft, 363 F.3d 740, 743–44 (8th Cir. 2004) (“We treat the IJ’s decision as a final agency
action for purposes of judicial review when the BIA affirms without an opinion. . . .
Nevertheless, the BIA does not abuse its discretion when it adopts the decision of an IJ, because
the reasoning in the IJ's opinion is sufficient to satisfy the requirement that the agency set out the
basis for its decision.”); Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir. 2003) (“If the
BIA streamlines a case, the IJ’s decision becomes the final agency decision, and the regulatory
scheme gives us a green light to scrutinize the IJ's decision as we would a decision by the BIA
itself.”); Tsegay v. Ashcroft, 386 F.3d 1347, 1352–53 (10th Cir. 2004) (“Once the BIA affirms a
decision without opinion, the IJ’s decision becomes the final agency determination. . . . Although
Tsegay was entitled to a reasoned agency decision on the merits of her petition for asylum, the
IJ’s decision provides precisely that determination.”); Silva v. U.S. Att’y Gen., 448 F.3d 1229,

12

 1235 (11th Cir. 2006) (“When the Board of Immigration Appeals adopts the decision of the
Immigration Judge without opinion, we review the decision of the Immigration Judge.”).
Precedential circuit court decisions are binding on immigration cases arising in that
circuit, Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989), and they unarguably bind the Agency
and prescribe a course of action for it. As noted by the many circuit court decisions since 2002,
immigration judge decisions—in whole or in part—may represent the Agency’s decision subject
to review, not solely the Board’s decision. As such, just as much as a Board member’s decision,
the immigration judge’s decision may legally bind the Agency to a course of action in defending
that decision before the federal courts. Further, that decision may, in turn, bring about a
precedential circuit court decision that unquestionably binds the Agency. None of the
streamlining regulatory changes were considered in the OCIJ Decision as they occurred after the
filing of post-hearing statements. Additionally, none of the federal circuit court case law on those
regulations existed at the time of the OCIJ Decision. These regulations and the ensuring circuit
court decisions represent a substantial change in law regarding the significance of immigration
judge decisions. Moreover, these circuit court decisions also made clear that immigration judge
decisions are considered the final decision of the agency in certain circumstances, contrary to the
OCIJ Decision. Compare OCIJ Decision at 618 (“According to the RD, unlike decisions of an
Immigration Judge, decisions of the Board of Immigration Appeals constitute a final
administrative ruling. . . .”) with, e.g., Tawm, 363 F.3d at 743 (“We treat the IJ's decision as a
final agency action for purposes of judicial review when the BIA affirms without an opinion. . .
.” (emphasis added)). Accordingly, the advent of the streamlining regulations and the ensuing
circuit court case law demonstrate that the OCIJ Decision is not dispositive of the Agency’s
petition.

13

 2. Federal Circuit Court Decisions Regarding the Position of the United
States in 28 U.S.C. § 2412
Further, not only did post-OCIJ Decision federal case law make clear that an immigration
judge’s decision could represent the position of the Agency, other post-OCIJ Decision federal
case law held unequivocally that an immigration judge’s decision is part of “the position of the
United States” for purposes of assessing fees under the Equal Access to Justice Act (EAJA) if the
position is not substantially justified. See, e.g., Thangaraja v. Gonzales, 428 F.3d 870, 873 (9th
Cir. 2005) (“Pursuant to EAJA, the BIA and IJ decisions we review are as much the “position of
the United States” as is the DHS's litigation position. See 28 U.S.C. § 2412(d)(2)(D) (“ ‘position
of the United States' means, in addition to the position taken by the United States in the civil
action, the action or failure to act by the agency upon which the civil action is based’ (emphasis
added)). . . The IJ's decision in this case, summarily affirmed without opinion by the BIA, is “the
action ... by the agency upon which the civil action is based,” which the statute requires us to
consider in determining whether the “position of the United States” was substantially justified.”
(first emphasis in original, second emphasis added)); Gomez-Beleno v. Holder, 644 F.3d 139,
145 (2d Cir. 2011) (“The “ ‘position of the United States' means, in addition to the position taken
by the United States in the civil action, the action or failure to act by the agency upon which the
civil action is based.” 28 U.S.C. § 2412(d)(2)(D). Thus, our “substantial justification” inquiry
encompasses not only the litigation position of the Office of Immigration Litigation (“OIL”), but
also the underlying administrative decisions of the BIA and IJ.”).
Again, this case law did not exist at the time of the OCIJ Decision, but it makes clear that
not only may an immigration judge decision constitute the position of the Agency, but it may
also constitute part or all of the position of the United States. Thus, it also undermines the
conclusion of the OCIJ Decision that immigration judge decisions are not final Agency

14

 decisions. See OCIJ Decision at 618. This case law further represents both a substantial change
regarding the import of immigration judge decisions since 2000 and a further reason that the
OCIJ Decision is not controlling regarding the Agency’s petition.
3. Standard of Board Review of Immigration Judge Fact-finding, Including
Credibility Determinations
In 2002, the Agency further amended its regulations in a substantial manner regarding
administrative appellate review by the Board of immigration judge decisions. See Board of
Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,877,
54,878 (Sept. 25, 2002) (codified as 8 C.F.R. § 1003.1(d)(3)(i)). This change altered the standard
of review applied by the Board to factual determinations made by immigration judges from de
novo to clearly erroneous. Id. at 54,888–90. In short, following this regulatory change in 2002,
“[t]he Board will not engage in de novo review of findings of fact determined by an immigration
judge.” 8 C.F.R. § 1003.1(d)(3)(i) (2019); see also Matter of S-H-, 23 I&N Dec. at 464 (“Under
the new regulation, the Board must defer to the factual determinations of an Immigration Judge
in the absence of clear error.”). In making that change, the Agency noted both the significance of
immigration judge fact-finding and the comparably greater authority of immigration judges visà-vis Board members:
The “clearly erroneous” standard reflects the major role of immigration judges under the
Act and implementing regulations as determiners of facts. In removal proceedings, it is
the immigration judges, not the Board, who have been given authority to “administer
oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any
witnesses.” 8 U.S.C. 1229a(b)(1). Moreover, immigration judges are generally in the best
position to make determinations as to the credibility of witnesses.
Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg.
54,877, 54,889 (Sept. 25, 2002) (codified as 8 C.F.R. § 1003.1(d)(3)(i)).

Federal courts have also recognized the clear significance of this change:

15

 The BIA is the highest administrative tribunal on immigration and nationality matters.
Before 2002, the BIA reviewed all aspects of an IJ's decision de novo. In 2002, however,
the applicable regulations were amended, which changed the scope of review as to the
factual findings of an IJ. 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii), 1003.3(f).
8 C.F.R. § 1003.1(d)(3)(i) now states: “The Board will not engage in de novo review of
findings of fact determined by an immigration judge. Facts determined by the
immigration judge, including findings as to credibility of testimony, shall be reviewed
only to determine whether the findings of the immigration judge are clearly erroneous.”
As to other matters, 8 C.F.R. § 1003.1(d)(3)(ii) provides: “The Board may review
questions of law, discretion, and judgment and all other issues in appeals from decisions
of immigration judges de novo.”
Thus, the regulations establish two different levels of review. To reverse an IJ's factual
finding, the BIA must determine that such a finding is clearly erroneous. In contrast,
however, the BIA may substitute its opinion for that of the IJ on issues of “law,
discretion, and judgment.” This rule stems from a sensible understanding of the roles and
abilities of the two bodies. IJs hear witnesses and determine the credibility of evidence.
The BIA reviews a paper record, devoid of the nuances of weighing evidence first hand.
The IJ is thus in a better position to make factual determinations than the BIA acting in
an appellate capacity. While largely deferring to those factual determinations, however,
the BIA can exercise its independent judgment to evaluate not only the legal significance
of the facts but also the ultimate conclusions to which those facts lead.
The explanatory comments accompanying the 2002 regulation amendments underscore
this interpretation of the scope of review. “The clearly erroneous standard reflects the
major role of immigration judges under the Act and implementing regulations as
determiners of fact.” 67 Fed. Reg. 54878, 54889. The explanatory comments further note
that the “clearly erroneous” standard is not unique to reviewing decisions of immigration
judges, but rather, constitutes the scope of review generally applicable to “factfinding by
trial courts.” Id.
Turkson v. Holder, 667 F.3d 523, 527 (4th Cir. 2012).

Federal courts have further recognized the clear limits this change placed on the Board in
reviewing an immigration judge’s factual findings, which necessarily elevates the importance of
those findings in shaping the Agency’s course of action in considering cases:
The BIA may find an IJ's factual finding to be clearly erroneous if it is “illogical or
implausible,” or without “support in inferences that may be drawn from the facts in the
record.” Anderson v. Bessemer City, 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518
(1985); see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc).
The Supreme Court's opinion in Anderson is extremely helpful to our understanding of
the limits on the BIA when it reviews the IJ's factual findings for clear error. In fact, the
Department of Justice cited Anderson in the explanatory comments that it issued to

16

 accompany the new regulations adopting the clear error standard of review, and
concluded that “[a] factfinding may not be overturned simply because the Board would
have weighed the evidence differently or decided the facts differently had it been the
factfinder.” Board of Immigration Appeals: Procedural Reforms to Improve Case
Management, 67 Fed.Reg. 54,878, 54,889 (Aug. 26, 2002) (citing Anderson, 470 U.S. at
573, 105 S.Ct. 1504).
Anderson provides important guidance on the purpose and limits of the clear error
standard:
Th[e clear error] standard plainly does not entitle a reviewing court to reverse the
finding of the trier of fact simply because it is convinced that it would have
decided the case differently. The reviewing court oversteps the bounds of its duty
... if it undertakes to duplicate the role of the lower court.... If the district court's
account of the evidence is plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently. Where
there are two permissible views of the evidence, the factfinder's choice between
them cannot be clearly erroneous.
470 U.S. at 573–74, 105 S.Ct. 1504 (emphasis added); see also Inwood Labs., Inc. v. Ives
Labs., Inc., 456 U.S. 844, 857–58, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (“An appellate
court cannot substitute its interpretation of the evidence for that of the trial court simply
because the reviewing court ‘might give the facts another construction, resolve the
ambiguities differently, and find a more sinister cast to actions which the District Court
apparently deemed innocent.’ ” (quoting United States v. Real Estate Boards, 339 U.S.
485, 495, 70 S.Ct. 711, 94 L.Ed. 1007 (1950))).
In particular, where credibility determinations are at issue, Anderson counsels that “even
greater deference” must be afforded to the IJ's factual findings, “for only the trial judge
can be aware of the variations in demeanor and tone of voice that bear so heavily on the
listener's understanding of and belief in what is said.” Id. at 575, 105 S.Ct. 1504 (citing
Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). Similarly, the
Fourth Circuit very recently noted that “IJs hear witnesses and determine the credibility
of evidence. The BIA reviews a paper record, devoid of the nuances of weighing
evidence first hand. The IJ is thus in a better position to make factual determinations than
the BIA acting in an appellate capacity.” Turkson, 667 F.3d at 527.
Rodriguez v. Holder, 683 F.3d 1164, 1170-72 (9th Cir. 2012) (footnote omitted).
As both the circuit courts and the Board have recognized, this was a substantial change in
the significance of immigration judge fact-finding, and it occurred well after the OCIJ Decision.
See, e.g., Matter of S-H-, 23 I&N Dec. at 465 (“This regulatory change adds significant force to
the Immigration Judge's decision and, concomitantly, makes it increasingly important for the
Immigration Judge to make clear and complete findings of fact that are supported by the record

17

 and in compliance with controlling law. . . . This regulatory change adds meaningful force to an
Immigration Judge's decision and heightens the need for Immigration Judges to include clear and
complete findings of fact in their decisions. Such findings are important to the parties’
understanding of the decision, to the appellate process, and to the avoidance of unnecessary
remands for further fact-finding by the Immigration Judge.” (emphasis added)). 5 Moreover, it
directly changed one of the bases that the OCIJ Decision used to distinguish between Board
members and immigration judges. OCIJ Decision at 618, 622 (affirming the Regional Director’s
conclusion that immigration judge decisions are reviewed de novo by the Board). Consequently,
it further demonstrates the inapplicability of the OCIJ Decision to the instant petition.
Similarly, the importance of immigration judge fact-finding has been further heightened
by federal court decisions in the 2010s. The Board initially took the position that an immigration
judge’s predictive findings of what may or may not happen to an asylum applicant in the future if
returned to the applicant’s home country were not findings of fact subject to clear error review.
See, e.g., Matter of A-S-B-, 24 I&N Dec. 493 (NIA 2008); Matter of V-K-, 24 I&N Dec. 500
(BIA 2008). Multiple circuit courts rejected this position, leading to the Board repudiating it in
2015 and concluding that such predictive findings by immigration judges are findings of fact that
can only be reviewed for clear error:
Subsequent to our decisions, the United States Courts of Appeals for the Second, Third,
Fourth, Seventh, Ninth, and Eleventh Circuits have addressed the standard of review that
should be applied to Immigration Judge findings regarding the possibility of future
events. They have all held that an Immigration Judge’s finding that a future event will
occur is a finding of fact that the Board must review under the clearly erroneous standard.
Rosiles-Camarena v. Holder, 735 F.3d 534, 538–39 (7th Cir. 2013); Vitug v. Holder, 723
5

Immigration judges themselves also recognize that an alien’s credibility and demeanor, which are at the heart of
immigration judge fact-finding, are “the most important factor in any case.” See Caitlin Dickerson, How U.S.
Immigration Judges Battle Their Own Prejudice, N.Y. TIMES (Oct. 4, 2016) (quoting an immigration judge while
noting, “An immigrant’s ability to persuade a judge that the testimony given is true is ‘the most important factor in
any case’”.).

18

 F.3d 1056, 1063–64 (9th Cir. 2013); Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303,
1314 (11th Cir. 2013); Ridore v. Holder, 696 F.3d 907, 915–19 (9th Cir. 2012); Hui Lin
Huang v. Holder, 677 F.3d 130, 134–35 (2d Cir. 2012); Turkson v. Holder, 667 F.3d 523,
529–30 (4th Cir. 2012); Huang v. Att’y Gen. of U.S., 620 F.3d 372, 382–83 (3d Cir.
2010); Kaplun v. Att’y Gen. of U.S., 602 F.3d 260, 269–72 (3d Cir. 2010).
In concluding that an Immigration Judge’s forecasting of future events constitutes a
factual finding, the circuit courts have noted that a determination of what will occur in the
future has historically and regularly been regarded as a factual finding, even outside the
context of immigration law, and they rejected our interpretation of the regulations. See,
e.g., Turkson v. Holder, 667 F.3d at 529 n.6; Kaplun v. Att’y Gen. of U.S., 602 F.3d at
269–70. The courts have held that although future events have not yet occurred in the
literal sense, the “present probability of a future event . . . is what a decision-maker in an
adjudicatory system decides now as part of a factual framework for determining legal
effect.” Hui Lin Huang v. Holder, 677 F.3d at 134 (quoting Kaplun v. Att’y Gen. of U.S.,
602 F.3d at 269) (internal quotation mark omitted).
In light of these circuit court decisions, we now hold that an Immigration Judge’s
predictive findings of what may or may not occur in the future are findings of fact, which
are subject to a clearly erroneous standard of review. We therefore overrule Matter of AS-B- and Matter of V-K- as they relate to this issue.
Matter of Z-Z-O-, 26 I&N Dec. 586, 589-90 (BIA 2015); accord Matter of J-R-G-P-, 27 I&N
Dec. 482 (BIA 2018) (“ Where the evidence regarding an application for protection under the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,
at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988), plausibly establishes that abusive or squalid conditions in pretrial detention
facilities, prisons, or mental health institutions in the country of removal are the result of neglect,
a lack of resources, or insufficient training and education, rather than a specific intent to cause
severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a
sufficient likelihood that he or she will experience “torture” in these settings is not clearly
erroneous.”).
This change, which also occurred well after the OCIJ Decision, amplified the
significance of immigration judge fact-finding even more, particularly in cases involving asylum
19

 claims which are among the most salient considered by the Agency. In short, the immigration
judge’s predictive findings regarding what may happen to an alien returned to his or her country
are indisputably findings of fact that are reviewed for clear error and may be conclusive on
federal review. 8 U.S.C. § 1252(b)(4). This, too, constitutes a substantial change from the OCIJ
Decision and is further reason that decision does not control the disposition of the Agency’s
petition.
4. Officers of the United States
Finally, prior to 2018, the legal status of administrative judges, including administrative
law judges and immigration judges, as Officers under the Constitution was unsettled. Compare
Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000) (FDIC ALJs are not constitutional Officers)
with Lucia v. SEC, 832 F.3d 277 (D.C. Cir. 2016) (SEC ALJs are not constitutional Officers),
reh’g en banc denied by an equally divided court, 868 F.3d 1021 (D.C. Cir. 2017) with
Bandimere v. SEC, 844 F.3d 1168 (10th Cir. 2016) (SEC ALJs are constitutional Officers), reh’g
denied, 855 F.3d 1128 (10th Cir. 2017). Even the position of the Federal Government on that
question was unsettled. 6 Lucia v. SEC, 138 S.Ct. 2044, 2050 (2018) (“Up to that point, the
Federal Government (as represented by the Department of Justice) had defended the
Commission's position that SEC ALJs are employees, not officers. But in responding to Lucia's
petition, the Government switched sides.”). The Supreme Court resolved the circuit split in 2018,
holding that administrative law judges at the SEC were constitutional Officers. 7 Id. at 2054. As
6

Prior to 2018, the litigation position of the Federal Government was generally that adjudicators such as
administrative law judges presiding over adversarial hearings were not constitutional Officers. See, e.g., Corrected
Brief of the Securities and Exchange Commission, Respondent, 2017 WL 1018210 at 32 (“The Commission’s ALJs

are civil service employees of the Commission, not Officers of the United States.”).
Although Lucia specifically addressed administrative law judges, immigration judges are materially similar to
administrative law judges in all pertinent respects regarding their duties. See, e.g., Jacinto v. INS, 208 F.3d 725,
732–33 (9th Cir. 2000) (discussing the similarities between immigration judges and administrative law judges at the
Social Security Administration and noting, “Reciting the statutory and regulatory mandates of the immigration
judge, Judge Noonan observed that the duty of the immigration judge is analogous to that of the administrative law
7

20

 discussed, infra, this holding necessarily means that immigration judges are constitutional
Officers, too. Neither Lucia nor its ramifications were even contemplated at the time of the OCIJ
Decision, and it represents a further, substantial change in the legal significance of immigration
judge decisions which renders the OCIJ Decision inapplicable.

II.

At a minimum, immigration judges establish, prescribe, bring about, or obtain a
result through their decision-making which commits or binds the Agency to a course
of action; therefore, at the least, they formulate or influence policy.
A. The inherent adjudicatory nature of the immigration judge position, wellestablished principles of administrative law, and numerous statutes all make
clear that immigration judge decisions establish, prescribe, bring about, or
obtain a result which commits or binds the Agency to a course of action.
It is well-established that agencies may establish policy, which necessarily includes

courses of action, through rulemaking or adjudication: “[T]he choice made between proceeding
by general rule or by individual, ad hoc litigation is one that lies primarily in the informed
discretion of the administrative agency.” SEC v. Chenery Corp., 332 U.S. 194, 203 (1947); see

judge in social security disability cases.”); Cojocari v. Sessions, 863 F.3d 616, 626 (7th Cir. 2017) (“As in other
administrative law regimes like Social Security disability decisions, where the administrative law judge must build a
‘logical bridge from evidence to conclusion,’. . . an immigration judge must base a credibility finding on ‘cogent
reasons bearing a legitimate nexus to the finding.” (citations omitted)). Although federal administrative law judges
originate from a different statute than immigration judges, federal courts frequently refer to immigration judges as
administrative law judges and apply precedent related to administrative law judges to immigration cases. See, e.g.,
Yang v. McElroy, 277 F.3d 158, 162 & n.3 (2d Cir. 2002) (discussing principles of administrative law related to the
development of a record by an administrative law judge in the context of a petition for review of an immigration
decision). Consequently—and as discussed in more detail in Part V, infra—there is no legal basis to distinguish the
applicability of Lucia to immigration judges. Cf. Marchant on behalf of A.A.H v. Berryhill, 2019 WL 2268982 at *2
(E.D. Pa. May 28, 2019) (“Though Lucia ostensibly concerns only SEC ALJs, courts and federal agencies have
applied its reasoning across the board.”); Administrative Law—Appointments Clause—Solicitor General Issues
Guidance on Administrative Judges—Guidance on Administrative Law Judges After Lucia v. SEC (S.Ct.), July 2018,
132 HARV. L. REV. 1120 (Jan. 2019) (noting the Department of Justice’s position that all adjudicators presiding over
adversarial hearings should be treated as constitutional Officers); M. Isabel Medina, Judicial Review—A Nice
Thing? Article III, Separation of Powers, and the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, 29 Conn. L. Rev. 1525, 1530 n. 27 (Summer 1997) (“Congress may legislate the mode of selection or
removal, and provide for the qualifications of immigration judges, within existing constitutional limits. . . .
Immigration judges would appear to be ‘inferior’ officers [under the Constitution].” (citations omitted)).

21

 NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974). Consequently, the critical role of
administrative adjudicators in developing agency policy through adjudication is similarly both
well-established and not seriously disputed. See generally Charles H. Koch, Jr., Policymaking by
the Administrative Judiciary, 56 Ala. L. Rev. 693 (Spring 2005) (analyzing the role of
administrative judges in the development of agency policy). “Agencies are delegated the power
to make policy. As discussed [previously], the head of the agency has ultimate authority over
agency policy. Nonetheless, policy percolates up through the adjudicative process and hence
agency policy to some extent derives from adjudicative staff and administrative judges as well as
the agency head.” 32 Fed. Prac. & Proc., Judicial Review § 8248 (Aug. 2019) (emphasis added);
see also Secretary of Education Review of Administrative Law Judge Decisions, 15 Op. O.L.C. 8,
15 (1991) (“The duties of ALJs under [applicable law] are generally executive in nature, because
the ALJs determine, on a case-by-case basis, the policy of an executive branch agency for the
administration of a federal program.” (emphasis added)); cf. Koch, 56 Ala. L. Rev. at 695 (“In
the course of deciding this trivial dispute [about a safety violation related to a gas grill], the
administrative judge made significant policy-related choices. These choices arguably add to the
agency law regarding both the legislation and the agency's policy pronouncement. If reviewed,
the review authority would have to develop or at least confirm these choices and thereby further
add to the body of agency law. Thus, [this] example confirms that any administrative
adjudicative, no matter how trivial, may confront and even contribute to the evolution of
administrative policy.” (emphasis added)).
Like all federal administrative judges, immigration judges play a critical role in creating,
establishing, prescribing, bringing about, or obtaining a result in terms of the Agency’s course of
action in establishing policy. See id. 712, 720 (“Regardless, the policy role of administrative

22

 judges determines the nature of adjudicative policymaking in each program. . . Administrative
judges are, and should be, active participants in the administrative policymaking function.”).
Immigration judges are responsible for developing the initial record in their cases which then
follows the cases throughout further review. See, e.g., Constanza-Martinez v. Holder, 739 F.3d
1100, 1102 (8th Cir. 2014) (“. . .IJs maintain an affirmative duty to develop the record. ’[U]nlike
an Article III judge, [an IJ] is not merely the fact finder and adjudicator but also has an
obligation to establish the record.’. . .‘[U]nlike the trial judge, an administrative judge has a wellestablished affirmative duty to develop the record.’” (internal citations omitted)). Immigration
judges make crucial factual and credibility determinations that are accorded significant deference
at later stages and, in some cases, are “conclusive.” See, e.g., 8 U.S.C. §§ 1252(a)(3) (“No alien
shall have a right to appeal from a decision of an immigration judge which is based solely on a
certification described in section 1229a(c)(1)(B) of this title.” (emphasis added)), 1252(b)(4)
(“[T]he administrative findings of fact [which are made by an immigration judge] are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary. . . . No court
shall reverse a determination made by a trier of fact [i.e. an immigration judge] with respect to
the availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B),
or 1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B), that a
reasonable trier of fact [i.e. an immigration judge] is compelled to conclude that such
corroborating evidence is unavailable.” (emphasis added)) (2018); 8 C.F.R. § 1003.1(d)(3)(i)
(2019) (“Facts determined by the immigration judge, including findings as to the credibility of
testimony, shall be reviewed only to determine whether the findings of the immigration judge are
clearly erroneous.”). Federal courts have also recognized the importance of immigration judges
in finding facts and creating the administrative record facilitating further review, as appellate

23

 bodies cannot simply substitute their views for those of the immigration judge. See Rodriguez v.
Holder, 683 F.3d at 1170-72.
In short, the inherent adjudicatory nature of the immigration judge position necessarily
brings about or obtains a result in committing the Agency to a course of action; in fact, that is
precisely what immigration judges do—bringing about or obtaining a result for the Agency
through the issuance of decisions. See 8 U.S.C. § 1229a(c)(1) (2018) (“At the conclusion of the
proceeding the immigration judge shall decide whether an alien is removable from the United
States.”). The fact that immigration judges cannot issue precedential decisions does not mean
that immigration judges do not influence the Agency’s course of action through adjudication. See
Koch, 56 Ala. L. Rev. at 701-02 (“Thus, the hierarchical system centralizes the policymaking
authority in a superior review authority, but the administrative judges, sitting at the initial
adjudicative stage, necessarily play a critical role. This Article adopts the perspective that all
adjudicative officials act on and depend upon the work of administrative judges.”). Nor does it
mean that immigration judges are without authority to bind the agency. See Michael Asimow,
Administrative Conference of the United States (ACUS), Federal Administrative Adjudication
Outside the Administrative Procedure Act (2019) at 1, available at
https://www.acus.gov/sites/default/files/documents/Federal%20Administrative%20Adj%20Outsi
de%20the%20APA%20-%20Final.pdf (“Adjudication by government agencies results in legally
binding judgments, just like court decisions.”). To the contrary immigration judge decisions do
commit the Agency to a course of action, especially in situations where their decisions are not
subject to further administrative appeals, where their decisions are appealed to federal court, or
where their decisions have preclusive effects in other proceedings.

24

 Immigration judges exercise “independent judgment and discretion and may take any
action consistent with their authorities under the Act and regulations that is appropriate and
necessary for the disposition of [their] cases.” 8 C.F.R. § 1003.10(b) (2019). The Agency cannot
simply reverse an immigration judge’s decision with which it disagrees, as neither the EOIR
Director nor the Chief Immigration Judge may direct the result of an adjudication assigned to an
immigration judge. 8 C.F.R. §§ 1003.0(c), 1003.9(c) (2019). Further, immigration judges are
“entitled to absolute immunity for their judicial acts, without regard to the motive with which
those acts are allegedly performed.” Stevens v. Osuna, 877 F.3d 1293, 1304 (11th Cir. 2017).
An immigration judge’s decision may constitute final agency action, thus binding the
Agency and allowing for the possibility of judicial review. See, e.g., id. § 1003.1(e)(4)(ii) (when
the Board issues an affirmance without opinion, the decision below of the immigration judge “is,
therefore, the final agency determination”); Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th
Cir. 2003) (“The IJ’s decision becomes the final agency action when a case is streamlined. . . .
The practical effect of this regulatory scheme is that, unless the BIA opts for three-judge review,
the IJ's decision becomes the BIA’s decision.”). Moreover, the Agency cannot lightly or simply
disclaim an immigration judge’s decision that is reviewed on appeal before a federal court. See
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (“The courts may not
accept appellate counsel's post hoc rationalizations for agency action. . .”); see also PortelaGonzalez v. Sec. of the Navy, 109 F.3d 74, 78 (1st Cir. 1997) (“Equitable doctrines of estoppel
apply in administrative and judicial fora. . .and a party cannot take one position in an underlying
administrative proceeding and then disclaim it in a subsequent suit arising out of the agency
proceedings.”(internal citation omitted)).

25

 On judicial review of an Agency immigration determination, multiple statutes note the
importance and influence of immigration judge determinations in that review. For example, “the
administrative findings of fact [which are made by an immigration judge] are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary” and “[n]o court shall
reverse a determination made by a trier of fact [i.e. an immigration judge] with respect to the
availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B), or
1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B), that a
reasonable trier of fact [i.e. an immigration judge] is compelled to conclude that such
corroborating evidence is unavailable. 8 U.S.C. § 1252(b)(4) (2018). Additionally, “[n]o alien
shall have a right to appeal from a decision of an immigration judge which is based solely on a
certification described in section 1229a(c)(1)(B) of this title.” Id. § 1252(a)(3) (emphasis added).
As discussed above, federal courts often review an immigration judge’s decision as the
final agency decision. Further, an immigration judge’s decision reviewed by a federal court may
warrant so-called Skidmore deference, which may influence the outcome of litigation
“depend[ing] upon the thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it power to
persuade, if lacking power to control.” Skidmore v. Swift, 323 U.S. 134, 140 (1944); see also
Zhang v. Gonzales, 426 F.3d 540, 544 (2d Cir. 2005) (“An IJ's interpretation of ambiguous
provisions of the INA is entitled no more deference than the inherent persuasiveness of the IJ's
view commands.”). Moreover, an immigration judge’s decision is expressly considered as part of
“the position of the United States” for purposes of assessing fees under EAJA if the position is
not substantially justified. See, e.g., Thangaraja, 428 F.3d at 873 (“Pursuant to EAJA, the BIA
and IJ decisions we review are as much the “position of the United States” as is the DHS's

26

 litigation position. See 28 U.S.C. § 2412(d)(2)(D) (“ ‘position of the United States' means, in
addition to the position taken by the United States in the civil action, the action or failure to act
by the agency upon which the civil action is based ” (emphasis added)). . . The IJ's decision in
this case, summarily affirmed without opinion by the BIA, is “the action ... by the agency upon
which the civil action is based,” which the statute requires us to consider in determining whether
the “position of the United States” was substantially justified.”); Gomez-Beleno v. Holder, 644
F.3d at 145 (“The “ ‘position of the United States' means, in addition to the position taken by the
United States in the civil action, the action or failure to act by the agency upon which the civil
action is based.” 28 U.S.C. § 2412(d)(2)(D). Thus, our “substantial justification” inquiry
encompasses not only the litigation position of the Office of Immigration Litigation (“OIL”), but
also the underlying administrative decisions of the BIA and IJ.”).
“In sum, administrative judges are no less than the cornerstone of the administrative
adjudicative aspect of policy-making. Administrative judges serve the policy-making function as
both record builders and initial decision-makers. All other participants in the adjudicative
process, including the courts, work from this initial policy analysis.” Charles Koch, Jr.,
Administrative Judges’ Role in Developing Social Policy, 68 LA. L. REV. 1095, 1102-03
(Summer 2008). An immigration judge’s legal role in determining or influencing Agency policy
through their inherent adjudicatory authorities is both well-established and indisputable, and they
are truly the “cornerstone” of the Agency’s policymaking through adjudication. See id. Statutory
provisions, appellate court review of an immigration judge’s decision, and principles of
deference all demonstrate, as a matter of law, that immigration judges create, establish, prescribe,
bring about or obtain results regarding the Agency’s course of action, especially when their
decisions are reviewed by federal circuit courts.

27

 B. Immigration judges issue decisions that are the final administrative decisions of
the Agency and, thus, directly bind the Agency to a course of action based on
those decisions, including in any subsequent litigation and in future proceedings.
1.

Immigration judges issue multiple types of decisions that are not
subject to administrative appeal and, thus, are the final Agency
determination.

Immigration judges issues multiple types of decisions that are not generally subject to
appeal See, e.g., 8 C.F.R. § 1003.42(f) (2019) (“No appeal shall lie from a review of an adverse
credible fear determination made by an immigration judge.”); 8 C.F.R. § 1208.30(g)(2)(iv)(A)
(2019) (“The immigration judge’s decision [concurring with an adverse credible fear
determination made by DHS] is final and may not be appealed.”); 8 C.F.R. § 1208.31(g)(1)
(2019) (“No appeal shall lie from the immigration judge’s decision [concurring with an adverse
reasonable fear determination made by DHS].”); 8 C.F.R. § 1235.3(b)(5)(iv) (2019) (“There is
no appeal from the decision of the immigration judge [in a claimed status review proceeding].”);
8 C.F.R. § 1240.15 (2019) (“. . .an appeal shall lie from a decision of an immigration judge to the
Board of Immigration Appeals, except that no appeal shall lie from an order of removal entered
in absentia”); Matter of Guzman, 22 I&N Dec. 722 (BIA 1999) (BIA lacks jurisdiction over
direct appeals of an in absentia removal order); Matter of Lujan-Quintana, 25 I&N Dec. 53 (BIA
2009) (BIA lacks jurisdiction to hear an appeal of immigration judge’s decision in a claimed
status review proceeding). Because these decisions are not subject to appeal, they become the
final administrative decision of the Agency. As such they establish or bring about a course of
action by binding the Agency to a position, especially in the course of future litigation. See
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962) (“The courts may not
accept appellate counsel's post hoc rationalizations for agency action. . . .”); see also PortelaGonzalez v. Sec. of the Navy, 109 F.3d 74, 78 (1st Cir. 1997) (“Equitable doctrines of estoppel
apply in administrative and judicial for a . . . and a party cannot take one position in an
28

 underlying administrative proceeding and then disclaim it in a subsequent suit arising out of the
agency proceedings.”(internal citation omitted)). In short, by binding the Agency to future
courses of action based on their unappealable decisions, immigration judges at least influence if
not also determine policy of the Agency. Consequently, they are management officials.
2.

Immigration judge decisions have res judicata and collateral estoppel
effects that also bind the Agency to a course of action in future
proceedings.

Res judicata and collateral estoppel may apply in the context of an administrative agency
acting in a judicial capacity, such as immigration judges. See United States v. Utah Constr. &
Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545 (1966) (“When an administrative agency is acting
in a judicial capacity and resolves disputed issues of fact properly before it which the parties
have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to
enforce repose.”). “Accordingly, circuit courts have given preclusive effect to determinations
made by immigration judges in immigration hearings.” Santana-Albarran v. Ashcroft, 393 F.3d
699, 704 (6th Cir. 2005); see also Medina v. Immigration and Naturalization Servs., 993 F.2d
499 (5th Cir. 1993) (immigration judge’s order admitting an individual to the United States as a
United States citizen precluded subsequent deportation proceedings against that same
individual); Ramon-Sepulveda v. Immigration and Naturalization Servs., 824 F.2d 749, 750–51
(9th Cir. 1987) (“Because the immigration judge's initial decision is res judicata, the INS at the
very least is precluded from seeking to deport petitioner based on matters that were resolved in
the earlier deportation proceedings.”). In doing so, they have made it pellucid that immigration
judges have the authority to bind the Agency in future proceedings. Amrollah v. Napolitano, 710
F.3d 568, 571 (5th Cir. 2013) (“A final decision by an immigration judge has a preclusive effect
on future litigation and agency decisions.”); cf. see Khan v Johnson, 160 F.Supp. 3d 1199 (C.D.

29

 Cal. 2016); Islam v. DHS, 136 F.Supp.3d 1088 (N.D. Cal. 2015) (an immigration judge’s grant
of asylum may bind DHS in future proceedings and preclude DHS from determining that an
alien has engaged in terrorist activity). Consequently, there is no question that as a matter of law,
an immigration judge decision may bind the Agency in any future course of action and, thus,
influence—if not also formulate or determine—policy.

3. Even when appealed to the Board, immigration judge decisions, at the
least, influence Agency policy by affecting the course of further appellate
review, especially if the case results in litigation in federal court.
The Board does not issue a separate opinion in every appeal from an immigration judge
decision; rather, it may “adopt and affirm” the immigration judge’s decision. See Matter of
Burbano, 20 I&N Dec. 872, 874 (BIA 1994). If the Board adopts the immigration judge decision,
the federal court will review both the immigration judge decision and any separate opinion
issued by the Board. See Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir. 2006); Chen v. Bd. of
Immigration Appeals, 435 F.3d 141, 144 (2d Cir. 2006); Chen v. Ashcroft, 376 F.3d 215, 222 (3d
Cir. 2004); Chen v. Holder, 742 F.3d 171, 177 (4th Cir. 2014); Zhu v. Gonzales, 493 F.3d 588,
593 (5th Cir. 2007); Elias v. Gonzales, 409 F.3d 444, 449 (6th Cir. 2007); Giday v. Gonzales,
434 F.3d 543, 547 (7th Cir. 2006); Ouomsieh v. Gonzales, 479 F.3d 602, 605 (8th Cir. 2007);
Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005); Mena-Flores v. Holder, 776 F.3d 1152,
1162 (10th Cir. 2015); Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). The findings of
fact by the immigration judge are reviewed under the substantial evidence standard and “are
conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(A) (2019); Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004); Dankam v.
Gonzales, 495 F.3d 113, 119 (4th Cir. 2007); Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.

30

 2007); Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005); Khup v. Ashcroft, 376 F.3d 898, 902
(9th Cir. 2004).

The Board may also affirm the immigration judge’s decision without an opinion. 8 C.F.R.
§ 1003.1(e)(4) (2019). In those situations, the federal court reviews the immigration judge
decision. See Part I.B., supra.

In either situation, however, the immigration judge decision, either in whole or in part,
becomes the decision and position of the Agency. It is the decision reviewed by the federal court
and, thus, unquestionably sets the Agency’s position in proceedings before the federal court. To
assert that immigration judges do not influence the Agency’s course of action regarding the
defense of litigation involving immigration judge decisions is to deny both the reality of
immigration litigation and a vast body of circuit law precedent. See generally Parts I.B. and
II.A., supra. Accordingly, the Agency asserts that, at the least, immigration judges formulate or
influence Agency courses of actions through their decision-making.

III.

Individual immigration judges exercise similar or greater levels of authority as
individual Board members whom the Authority previously determined were
management officials; thus, pursuant to the BIA Decision, individual immigration
judges should also be deemed to be management officials.
A. Individual immigration judges possess and exercise similar or greater levels of
authority as individual Board members.
Individual immigration judges and individual Board members exercise similar legal

authority in nearly all material respects. Each exercises delegated authority from the Attorney
General to adjudicate cases that come before them. Compare 8 U.S.C. § 1101(b)(4) (2018) with
8 C.F.R. § 1003.1(a)(1) (2019). Certain decisions by immigration judges may be appealed to the

31

 Board, 8 C.F.R. § 1003.1(b), just as decisions by Board members may be appealed to federal
court, through a petition for review, 8 U.S.C. §§ 1252(a)(5) and (b).
Nearly-identical regulatory language further confirms the similarity of their authorities.
For example, each is required to adjudicate cases in a timely and impartial manner, 8 C.F.R. §§
1003.1(d)(1) and 1003.10(b), each exercises “independent judgment and discretion,” 8 C.F.R. §§
1003.1(d)(1)(ii) and 1003.10(b), and each “may take any action consistent with their authorities
under the Act and the regulations as [that[ is appropriate and necessary for the disposition of the
case [such cases],” 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b) (2019). The similarity of their
functions has been further codified in the regulations by the recognition that Board members
function as Appellate Immigration Judges. Id. at 1003.1(a)(1) (“The Board members shall also be
known as Appellate Immigration Judges.”); Organization of the Executive Office for
Immigration Review, 84 Fed. Reg. 44,537, 44,538 (Aug. 26, 2019) (“In both substance and
practice, Board members function as appellate immigration judges.”).
To be sure, certain legal differences exist between immigration judges and Board
members, but most—if not all—of those differences suggest that immigration judges have
greater prominence and authority. For example, immigration judges are established by statute, 8
U.S.C. § 1101(b)(4), whereas Board members are entirely creatures of regulation, 8 C.F.R. part
1003, subpart A. Similarly, immigration judges have numerous authorities established by statute,
8 U.S.C. § 1229a(b)(1), that Board members do not possess. See Board of Immigration Appeals:
Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,877, 54,889 (Aug. 26, 2002)
(codified as 8 C.F.R. § 1003.1(d)(3)(i)) (“In removal proceedings, it is the immigration judges,
not the Board, who have been given authority to “administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. 1229a(b)(1).”)).

32

 Immigration judges are finders of fact whereas the Board may only take administrative notice of
commonly known facts. 8 C.F.R. § 1003.1(d)(3)(iv) (2019) (“Except for taking administrative
notice of commonly known facts such as current events or the contents of official documents, the
Board will not engage in fact-finding in the course of deciding appeals. A party asserting that the
Board cannot properly resolve an appeal without further fact-finding must file a motion for
remand.”). Moreover, such findings of fact are conclusive on appellate review by a federal
circuit court unless “any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B) (2018). Finally, although the INA requires proceedings
presided over by an immigration judge to determine an alien’s removability in many situations, 8
U.S.C. §§ 1229a(a)(1) and (a)(3), there is no constitutional or statutory right to an administrative
appeal to the Board. See Guentchev v. Immigration and Naturalization Servs., 77 F.3d 1036,
1037–38 (7th Cir. 1996) (“The Constitution does not entitle aliens to administrative appeals.
Even litigants in the federal courts are not constitutionally entitled to multiple layers of review.
The Attorney General could dispense with the Board and delegate her powers to the immigration
judges, or could give the Board discretion to choose which cases to review (a la the Appeals
Council of the Social Security Administration, or the Supreme Court exercising its certiorari
power).”); Albathani v. Immigration and Naturalization Servs., 318 F.3d 365, 376 (“An alien has
no constitutional right to any administrative appeal at all. . . . Such administrative appeal rights
as exist are created by regulations promulgated by the Attorney General.” (citations omitted)); cf.
Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78
Fed. Reg. 536, 554–55 (Jan. 3, 2013) (codified at 8 C.F.R. pts. 103, 212) (“In upholding the
BIA’s practice of ‘affirmance without opinion’ of immigration judge decisions, for example,

33

 several courts of appeals have recognized that Due Process does not require an agency to provide
for administrative appeal of its decisions.”).
The Board as a whole does have the authority to issue binding precedential decisions, 8
C.F.R. § 1003.1(g), whereas the Office of the Chief Immigration Judge does not possess such
authority, 8 C.F.R. § 1003.9. No single Board member nor any panel of three Board members,
however, has the authority to issue binding precedential decisions, meaning that individual Board
members, like immigration judges, possess no ability to issue a binding precedent. See 8 C.F.R. §
1003.1(g)(3) (2019) (requiring a majority8 vote of permanent Board members to designate a
precedent). In sum, immigration judges exercise similar or greater authorities as their
counterparts on the Board.

B. Due to their similar or greater levels of legal authority and ability to affect the
course of action of the Agency, immigration judges should be found to be
management officials pursuant to the BIA Decision.
Like Board members, immigration judges are management officials due to their ability to
influence and determine Agency policy—understood as the course of action for the Agency—
through their decision making authority. In the BIA Decision, the union sought review of the
Regional Director’s findings that the incumbent Board member was a management official
because “he influences and determines agency policy through his participation in the issuance of
administrative decisions.” BIA Decision at 505.
The Regional Director’s decision concluded the following about Board members: (1)
they “issue[] binding ‘administrative decisions which interpret the immigration laws and

8

The Board is currently authorized to have 21 members. 8 C.F.R. § 1003.1(a)(1) (2019). Thus, when all vacancies
are filled, the assent of 11 Board members is required to issue a precedent.

34

 establish precedent in the area of immigration law”; (2) due to the “considerable degree of
discretion” they possess, their decisions are “neither supervised nor subject to change by any
other authority or official within or outside the Board”; and (3) their decisions are “essentially
the final administrative ruling on the case” and are “infrequently” reviewed by the Attorney
General. Id. at 506. In applying these findings to the definition of a management official, the
Regional Director found that because the incumbent Board member interpreted Board policies as
applied to immigration case law and that his decisions directly influenced and determined Board
policy, that he was a management official under 5 U.S.C. § 7103(a)(11). Id. at 506–07.
Immigration judges also use their decision making authority to directly influence and
determine Agency policy, and likewise should be considered management officials under 5
U.S.C. § 7103(a)(11). As discussed, supra, immigration judges perform the same or similar
duties as the Board members. (“Board members shall exercise their independent judgment and
discretion in considering the cases coming before the Board, . . . .” 8 C.F.R. § 1003.1(1)(1)(ii)
(2019); “In deciding the cases before them . . . immigration judges shall exercise their
independent judgment and discretion . . . .”, 8 C.F.R. § 1003.10(b) (2019)). Although
immigration judges decide cases at the trial level while Board members adjudicate cases at the
appellate level, their work is otherwise materially identical. Thus, pursuant to the BIA Decision,
immigration judges should be considered management officials.
1. Issuance of binding administrative decisions
The decisions that immigration judges render may become binding administrative
decisions which will direct the Agency’s course of action in subsequent litigation. See Parts I &
II, supra. While the Board can issue precedent decision, no one Board member can do so—the
decision to publish a Board decision must be decided by a majority vote of the permanent Board

35

 members. See 8 C.F.R. § 1003.1(g)(3) (2019) (requiring a majority vote of permanent Board
members to designate a precedent). A majority of Board decisions, like all immigration judge
decisions, are unpublished. Compare Board of Immigration Appeals: Affirmance Without
Opinion, Referral for Panel review, and Publication of Decisions as Precedents, 84 Fed. Reg.
31,463, 31,468 (July 2, 2019) (codified at 8 C.F.R. pts. 1003, 1292) (the Board averaged
approximately 29 precedential decisions per year between 2005 and July 2019) with Executive
Office for Immigration Review Adjudication Statistics, Case Appeals Filed, Completed, and
Pending (Oct. 23, 2019), available at https://www.justice.gov/eoir/page/file/1198906/download
(reflecting the annual issuance of approximately 20,000 Board decisions overall in cases decided
by immigration judges). In the BIA Decision, the Authority noted the importance of both the
Board’s precedential and non-precedential final decisions. BIA Decision at 509. In short, both
immigration judges and Board members issue potentially binding administrative decisions,
including an overwhelming number of unpublished decisions. These decisions, regardless of
whether they were issued by an immigration judge or a Board member, “effectively create[] and
establish[] general agency principles which guide the outcome of future immigration decisions
and establish [Agency] policy.” Id.
2. Unsupervised discretionary decision making
As the Regional Director noted, each Board member “makes an individual decision on
each case” and his or her “individual vote . . . is neither supervised nor subject to change by any
other authority or official within or outside the Board.” Id. at 510. Immigration judge decisions
are also not subject to supervisory review prior to their issuance, nor are they instructed by
supervisors on the outcome of a case – they are simply instructed to issue decisions in their
cases. See 8 C.F.R. § 1003.9(c) (2019) (restricting the Chief Immigration Judge from deciding a

36

 case assigned to another immigration judge). Further, Immigration Judges have broad
discretionary powers in deciding the matters before them. 8 U.S.C. § 1229a(c)(4)(A)(ii) (2018);
8 C.F.R. § 1003.10(b) (2019). Most forms of relief from removal—voluntary departure,
adjustment of status, asylum, and cancellation of removal, as examples—have a discretionary
component for the applicant, and in each of these decisions, the immigration judge has the
discretion to grant or deny relief, even if all statutory requirements are met. 8 U.S.C. §§
1158(b)(1)(A), 1229a(c)(4)(A)(ii), 1229b(a), 1229b(b), 1229c, and 1255 (2018). And this
discretion extends to other decision, including requests for release on bond, changes of venue,
and continuances. 8 U.S.C. § 1226(a)(2) (2018); 8 C.F.R. §§ 1003.20, 1003.29 (2019).
The Regional Director found that “Board Members substantially influence and determine
the [Agency’s] immigration policy” because of the number of individual decisions made each
month by the entire Board (approximately 1,000) and because their decision are not “supervised
nor subject to change.” BIA Decision at 509. By contrast, in FY 2019, Immigration Judges,
made on average 22,963 unsupervised decisions per month. See Executive Office for Immigration
Review Adjudication Statistics, New Cases and Total Completions (Oct. 7, 2019), available at
https://www.justice.gov/eoir/page/file/1060841/download. In short, immigration judges exercise
the same level of independent, discretionary decision-making as Board members do, and at a
significantly higher volume. As both of those factors pointed toward finding Board members to
be management officials in the BIA Decision, there is no reason a different result should be
reached regarding immigration judges.
3. Final agency decisions
For the Board members, the Regional Director found that their decisions are “essentially
the final administrative ruling on the case and the case is not referred to any higher authority for

37

 approval or rejection.” BIA Decision at 509. To the contrary, however, Board member decisions
are reviewable by either the Attorney General, 8 C.F.R. § 1003.1(h) (2019), or a federal circuit
court, 8 U.S.C. § 1252(b) (2018). Likewise, some immigration Judge decisions are reviewable by
the Board at the request of either party or by certification from the immigration judge. 8 C.F.R.
§§ 1003.1(b)–(c), 1003.7 (2019). However, “[t]he fact that an individual’s work is or is not
subject to higher level review or approval is only one factor to be considered in determining
whether an individual is a management official.” BIA Decision at 510, citing U.S. Dep’t of
Agric., Food and Nutrition Serv., Alexandria, Va. and Nat’l Treasury Emps. Union, 34 F.L.R.A.
143, 147 (1990). Indeed, not all Immigration Judge decisions are reviewable by the Board. 8
C.F.R. §§ 1003.42(f), 1208.30(g)(2)(iv)(A), 1208.31(g)(1), 1235.3(b)(5)(iv), 1240.15 (2019).
The reviewability of decisions is not dispositive of whether immigration judges are management
officials; nevertheless, to the extent this factor is considered, it weighs in favor of finding that
immigration judges, like Board members, are management officials.
IV.

Authority precedent other than the BIA Decision supports the conclusion that
immigration judges are management officials.
Other decisions of the Authority support the finding that because immigration judges

“effectively influence courses of action for the Agency,” immigration judges qualify as
management officials under the Act. U.S. Dep’t of Energy Headquarters, Wash., D.C. and Nat’l
Treasury Emps. Union, 40 F.L.R.A. 264, 272 (1991) [hereinafter Dep’t of Energy HQ]; see also
U.S. Coast Guard, Headquarters, Wash., D.C. Activity and Am. Fed’n of Gov’t Emps., AFL-CIO,
Local 3313, 7 F.L.R.A. 743 (1982) (holding that engineer qualified as management official
because “he does bring about or obtain a result as to the adoption of plans or courses of action”
for the agency) [hereinafter U.S. Coast Guard HQ].

38

 In Dep’t of Energy HQ, the Authority evaluated whether attorneys in the Office of
General Counsel at the Department of Energy qualify as management officials under the Act.
Dep’t of Energy HQ at 264. The Authority found that only the attorneys in the Finance Section
qualified as management officials; the other attorneys did not. Id. at 269. In concluding that
Finance Section attorneys “effectively influence courses of action for the Agency,” the Authority
explained that the attorneys (i) made “independent and unreviewed decisions,” (ii) had “full
signatory authority to bind the Agency,” (iii) “had full authority to decide the course of action on
behalf of the Agency,” (iv) decided issues of significance, such as “the foreclosure of a multimillion dollar barge terminal facility” and “the disposal of various alternative fuel plants,” and
(v) could withhold their concurrence on certain matters. Id. at 273–74. By contrast, the Authority
found that for the other attorneys, who did not qualify as management officials, (i) their work
was subject to prior review, (ii) they did not have signatory authority to bind the agency, and (iii)
they did not have full authority to decide the course of action for the agency. Id. at 271–73.
If the Finance Section attorneys in Dep’t of Energy HQ qualify as management officials,
then immigration judges do as well. Immigration judges make independent decisions unreviewed
by a supervisor in immigration cases. They exercise “independent judgment and discretion and
may take any action consistent with their authorities under the Act and regulations that is
appropriate and necessary for the disposition of [their] cases.” 8 C.F.R. § 1003.10(b) (2019).
Neither the EOIR Director nor the Chief Immigration Judge—nor any other Agency official—
may direct the result of an adjudication assigned to an immigration judge. 8 C.F.R. §§ 1003.0(c),
1003.9(c) (2019). The significance of matters decided by immigration judges is at least as great,
if not more so, as those decided by the Finance Section attorneys in Dep’t of Energy HQ. See,
e.g., Albathani v. Immigration and Naturalization Servs., 318 F.3d 365, 379 (“Immigration

39

 decisions, especially in asylum cases, may have life or death consequences, and so the costs of
error are very high.”); see also Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50
LAW & SOC’Y REV. 117 (Mar. 2016) (“Immigration judges make consequential decisions that
fundamentally affect the basic life chances of thousands of noncitizens and their family members
every year.”); cf. Dana Leigh Marks, I’m an Immigration Judge. Here’s How We Fix Our
Courts, WASH. POST (April 12, 2019), at https://www.washingtonpost.com/opinions/im-animmigration-judge-heres-how-we-can-fix-our-courts/2019/04/12/76afe914-5d3e-11e9-a00e050dc7b82693_story.html (“Our courts’ decisions are life-changing. We rule on whether a
person is a U.S. citizen, whether a noncitizen can qualify for a status that allows him or her to
remain in this country, or whether a person has violated our laws and must be forced to leave.
Our decisions may cause the separation of parents and children or husbands and wives. . . . And,
at times, the decisions can amount to a death sentence. . . .”).
Similarly, in U.S. Coast Guard HQ, the Authority found that an electronics engineer was
a management official even though he did not promulgate any rules, regulations, or precedents
for the agency. U.S. Coast Guard HQ at 744–45. The engineer helped develop systems relating
to satellite remote sensing systems; planned, budgeted, and scheduled research and development
programs; planned and conducted new work to be done in a complex and cutting-edge field; and
made recommendations that “are usually accepted” as to policy proposals by an international
working group. Id. Notably, the engineer’s decisions bound the agency only with regard to a
particular technology project; it did not set a precedent or binding rule for how future projects
must be conducted. Yet, the Authority concluded that because the engineer’s actions “bring
about or obtain a result as to the adoption of . . . plans or courses of action . . . with respect to
remote sensing programs and technology,” he was a management official. Id. Applying this

40

 reasoning to immigration judges shows that even if one were to ignore immigration judges’
influence on precedent, their actions in deciding cases qualify them as management officials.
Every immigration judge decision brings about a course of action for the Agency, DHS, and the
individual—whether that is ordering an alien removed, recognizing an individual as a U.S.
citizen, or granting an individual humanitarian relief or protection. Accordingly, under U.S.
Coast Guard HQ, immigration judges qualify as management officials
V.

As constitutional Officers, immigration judges exercise significant authority
pursuant to the laws of the United States, including the power to formulate or
influence the Agency’s course of action.
A. Immigration judges are constitutional Officers.
For constitutional purposes, an Officer of the United States is one who “exercis[es]

significant authority pursuant to the laws of the United States.” Buckley v. Valeo, 424 U.S. 1, 126
(1976) (per curiam). In different terms, a position, for purposes of the Constitution, “however
labeled, is in fact a federal office if (1) it is invested by legal authority with a portion of the
sovereign powers of the federal Government, and (2) it is ‘continuing.’” Officers of the United
States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73 (2007). Regarding the
investment of legal authority with a portion of the sovereign powers of the Government, “[s]uch
powers primarily involve binding the Government or third parties for the benefit of the public,
such as by administering, executing, or authoritatively interpreting the laws.” Id. at 75.
In Lucia, the Supreme Court set forth a number of relevant criteria in holding that
administrative law judges (ALJs) at the SEC were Officers, including the conclusion that ALJ
decisions constitute the “last word” of the agency if they are not further reviewed. Lucia, 138
S.Ct. at 2053-54 (“By contrast, the SEC can decide against reviewing an ALJ decision at all. And
when the SEC declines review (and issues an order saying so), the ALJ's decision itself ‘becomes

41

 final’ and is ‘deemed the action of the Commission.’. . .That last-word capacity makes this an a
fortiori case: If the Tax Court’s [special trial judges] are officers, as Freytag held, then the
[SEC’s] ALJs must be too.” (citations omitted)). Like the ALJs in Lucia, immigration judges
hold a continuing office established by law. 8 U.S.C. § 1101(b)(4) (2018). Immigration judges
take testimony, receive evidence, and examine witnesses. 8 U.S.C. § 1229a(b)(1) (2018); 8
C.F.R. § 1003.10(b) (2019). They conduct trials by administering oaths, ruling on motions, and
generally regulating the course of a hearing. 8 U.S.C. § 1229a(b)(1) (2018); 8 C.F.R. §
1003.10(b) (2019); see generally 8 C.F.R. part 1003, subpart C (detailing the rules of procedure
immigration judges enforce); see also Stevens, 877 F.3d at 1302 (“Immigration Judges possess
many of the same powers as a trial judge. These powers include the power to subpoena witnesses
and evidence, to administer oaths, to receive and rule on evidence, to question parties and
witnesses, to issue sanctions, to make credibility determinations, and to render decisions.”). They
rule on the admissibility of evidence. 8 U.S.C. § 1229a(b)(4)(B) (2018); Matter of Toro, 17 I&N
Dec. 340, 343 (BIA 1980) (“To be admissible in deportation proceedings, evidence must be
probative and its use fundamentally fair so as to not deprive respondents of due process of law as
mandated by the fifth amendment.”). They issue decisions which become final if not
administratively appealed, 8 C.F.R. §§ 1003.39 and 1240.14, and they issue a number of types of
decisions that are not subject to an administrative appeal. 8 C.F.R. §§ 1003.42(f),
1208.30(g)(2)(iv)(A), 1208.31(g)(1), 1235.3(b)(5)(iv), 1240.15 (2019). In short, immigration
judges exercise all—if not more—of the same authorities as ALJs in Lucia and have similar
“last-word” capacity. Accordingly, they are indisputably constitutional Officers.

B. The inherent nature of a constitutional Officer is that of an individual who
exercises delegated sovereign authority which necessarily connotes the ability to
execute that authority and, thus, formulate or influence the course of action of

42

 an agency under that authority; thus, a constitutional Officer, such as an
immigration judge, is a management official.
By definition, a constitutional Officer “exercis[es] significant authority pursuant to the
laws of the United States.” Buckley v. Valeo, 424 U.S. 1, 126 (1976). In doing so, an Officer
exercises “a portion of the sovereign powers of the federal Government.” Officers of the United
States Within the Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 77 (2007). “Such
powers primarily involve binding the Government or third parties for the benefit of the public,
such as by administering, executing, or authoritatively interpreting the laws.” Id. Immigration
judge decisions may bind the Agency and third parties, and they inarguably exercise significant
authority pursuant to the laws of the United States. See Parts I and II, supra.
Furthermore, constitutional Officers must be appointed by either the President with
advice and consent of the Senate or, for inferior Officers, by the President alone, courts of law,
or heads of departments. 9 U.S. CONST., art. II, § 2, cl. 2. It is difficult to conceive—even
theoretically—of an individual who exercises significant authority pursuant to the laws of the
United States and also must be appointed by, at the least, the head of an executive agency, but
nevertheless does not formulate, determine, or influence the course of action of the agency to
which the individual was appointed. The Agency is not aware of such a position, and as it has
discussed extensively throughout the instant brief, immigration judges do not constitute such a
position. Cf. Officers of the United States Within the Meaning of the Appointments Clause, 31
Op. O.L.C. 96 (2007) (discussing revenue officers as constitutional Officers whose decisions
could “by law ‘bind the rights of others,’” even though they were subject to appeal). To the
contrary, as executive Officers under the Constitution, immigration judges, just like other

9

Immigration judges are inferior Officers appointed by a department head, namely the Attorney General who is the
head of the Department of Justice. 8 U.S.C. § 1101(b)(4) (2018).

43

 administrative judges, “determine, on a case-by-case basis, the policy of an executive branch
agency for the administration of a federal program,” namely whether individuals are to be
removed from the United States or are allowed to remain pursuant to a grant of relief or
protection. See Secretary of Education Review of Administrative Law Judge Decisions, 15 Op.
O.L.C. 8, 15 (1991); see also 8 U.S.C. §§ 1229a(a)(1), (3) (2018). Accordingly, as Officers of
the United States, immigration judges—at the least—create, prescribe, bring about or obtain
results that direct, bind, or otherwise determine courses of action by the Agency and are,
therefore, management officials.
For all of the foregoing reasons, the Agency respectfully asserts that the Regional
Director should find that immigration judges are management officials as defined in 5 U.S.C. §
7103(a)(11) and, thus, should be excluded from a bargaining unit.
Respectfully submitted,

Agency Representative
Associate General Counsel
Employee/Labor Relations Unit
U.S. Department of Justice
Executive Office for Immigration Review
Office of the General Counsel
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041
(703) 305-0165 (phone) / (703) 605-0491 (fax)
Adam.Brill@usdoj.gov

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 STATEMENT OF SERVICE
This is to certify in accordance with 5 CFR § 2422.4 that this filing has been served on
this 3rd day of January 2020 on the following:
Jessica S. Bartlett, Regional Director
and
William Kirsner, Regional Attorney/Hearing Officer
WKirsn@flra.gov (Agency Prehearing Brief)

Richard Bialczak, Counsel for NAIJ
rickbial@gmail.com (Agency Prehearing Brief)
National Association of Immigration Judges

January 3, 2020
Agency Representative

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