SJRES-190-119
Motion to proceed to consideration of measure rejected in Senate by Yea-Nay Vote. 46 - 48. Record Vote Number: 173. (consideration: CR S2816)
Sponsored by Tim Kaine (D-VA)
What it does
This joint resolution would use the Congressional Review Act (CRA) to nullify a rule issued by the Executive Office for Immigration Review (EOIR) titled "Appellate Procedures for the Board of Immigration Appeals," published in the Federal Register on February 6, 2026. If enacted, the rule would have no legal force or effect. Under the CRA, a successfully enacted disapproval resolution also generally bars the agency from issuing a substantially similar rule in the future without new congressional authorization.
Who benefits
Immigrants with pending or future appeals before the Board of Immigration Appeals (BIA) who may have benefited from procedural protections in the original EOIR rule — depending on what those procedures provided. Immigration attorneys and legal aid organizations whose clients rely on BIA appellate procedures. Members of Congress who argue the rule exceeded executive authority or changed procedures without adequate legislative input. Potentially, parties who preferred the pre-rule BIA appellate framework.
Who is hurt
Immigrants with pending or future BIA appeals who may have benefited from streamlined or expanded appellate procedures under the EOIR rule — depending on what those procedures provided. The Executive Branch (specifically DOJ/EOIR), which loses the ability to implement its preferred appellate framework and, under the CRA, would be barred from issuing a substantially similar rule. Immigration judges and BIA staff who may have been preparing to implement the new procedures. Parties who preferred the rule's changes to the existing BIA process.
Supporters argue
Supporters argue that the EOIR rule unilaterally altered appellate procedures for the BIA — a body that adjudicates hundreds of thousands of immigration cases annually — without sufficient congressional authorization, and that the Congressional Review Act exists precisely to check this kind of executive rulemaking. They contend that Congress, not an executive agency, should set the structural rules governing immigration adjudication, and that disapproving the rule restores the proper separation of powers between the legislative and executive branches.
Opponents argue
Opponents argue that EOIR has long-standing statutory authority to manage its own appellate procedures under the Immigration and Nationality Act, and that the rule was a legitimate exercise of that authority to address a BIA backlog that has grown to over one million pending cases. They contend that blocking the rule through the CRA — and triggering its bar on substantially similar future rules — removes a necessary administrative tool and leaves the immigration court system without the procedural updates needed to function effectively.
Constitutional context
The Naturalization Clause (Art. I, §8, cl. 4) gives Congress broad authority over immigration law, while the Take Care Clause (Art. II, §3) grants the Executive Branch authority to implement and enforce those laws through agencies like EOIR. Post-Loper Bright (2024), courts would independently assess whether EOIR's original rule was within its statutory authority under the INA, rather than deferring to the agency's own interpretation — making the underlying rule more legally vulnerable than it would have been under prior Chevron deference.
Checks and balances
The Executive Branch (EOIR/DOJ) gains no power under this resolution — rather, Congress reasserts legislative oversight by nullifying an executive agency rule; the CRA's bar on substantially similar future rules further constrains executive rulemaking in this area unless Congress acts.
Historical precedent
The Congressional Review Act has been used to nullify agency rules across multiple administrations — most notably in 2017, when Congress used it to strike down 14 rules issued in the final months of the Obama administration — but CRA resolutions targeting immigration court procedural rules are uncommon.