It is strange that the Board does not get more scrutiny for its reliance on Temporary Board Members.
Temporary Board Members are allowed by 8 CFR 1003.1(a)(4), but the regulation requires that such members be “immigration judges, retired Board members, retired immigration judges, [or] administrative law judges employed within, or retired from, EOIR.”
The BIA doesn’t follow this rule very closely. For example, all but one of the current “temporary” members are just BIA attorneys or attorney advisors – only one is a former Immigration Judge (at least according to the bio of each member on EOIR’s website).
While all of the current Temporary Board Members have impressive resumes, the Board is relying on them to issue appellate decisions that affect immigrants’ lives in extreme ways.
I wrote almost two years ago about how odd it was that all five of the Temporary members at that time were women (and only 4 of the 14 permanent members are women). Temporary members have less power, in that they can’t decide which panel decisions become precedent and aren’t allowed to hear any of the en banc cases. 8 CFR 1003.1(a)(4); 8 CFR 1003.1(g). That means over 1/3 of the current Board members have no say either on what decisions become precedent and what decisions get heard or re-heard en banc.
For the foreseeable future, it doesn’t appear much is going to change. The Attorney General has been using “temporary” members for a long time, and its decision to stretch the eligibility criteria isn’t a new one. However, for immigrants whose appeals are decided by temporary BIA members who aren’t even eligible to be temporary members, one would think eventually someone would raise this on an appeal to the Circuit Court of Appeals.