A Brennan Center report documents record DHS pretermission filings, AG control over BIA precedent, and a proposed rule that could eliminate most immigration appeals on the merits.
A new report from the Brennan Center for Justice concludes that the Attorney General has exerted unprecedented control over the Board of Immigration Appeals, reshaping immigration adjudication in ways the report argues undermine judicial independence and deprive detainees of meaningful review [1]. The report, titled "The Empty Promise of the Board of Immigration Appeals," was published April 10 and draws on BIA case data, regulatory filings, and internal agency records to build a documented evidentiary record of executive branch influence over what is nominally an independent appellate body [1].
The BIA sits within the Executive Office for Immigration Review, a component of the Department of Justice, and functions as the highest administrative appellate body for immigration cases in the United States [1]. The Brennan Center report identifies several converging mechanisms of control: the Attorney General's statutory authority to certify BIA decisions for personal review and revision, a surge in government-side procedural filings, and a pending regulatory proposal that would allow the BIA to decline most appeals without substantive adjudication [1]. The Department of Homeland Security filed more than 20,000 pretermission requests in January 2026 alone, a volume the report describes as record-setting [1]. Pretermission allows DHS to seek dismissal of an appeal before the BIA issues a merits ruling.
The substantive significance is procedural and constitutional. Thousands of BIA decisions are not publicly available, the report found, a gap that prevents immigration judges, practitioners, and reviewing courts from identifying binding precedent or detecting inconsistency [1]. When the AG selectively certifies cases for personal review, the resulting precedent opinions carry the weight of administrative law across all immigration courts nationwide. The report frames this as a structural due process problem, arguing that respondents facing deportation cannot meaningfully challenge decisions when the decisional record is inaccessible and the adjudicator is subject to direct executive direction [1].
For litigators, the report's principal value is evidentiary. Attorneys challenging BIA rulings on administrative record grounds in Article III courts, particularly in the circuit courts of appeals, now have a consolidated, sourced account of the mechanisms by which AG influence operates [1]. The proposed regulation permitting the BIA to summarily decline most appeals, if finalized, would sharply narrow the pool of cases eligible for merits review, compressing the administrative record available for federal judicial scrutiny [1]. The report does not identify pending litigation directly, but its documented findings are structured for use as supporting authority in habeas petitions, petitions for review, and administrative law challenges contesting BIA procedural integrity.