Proposed Rule2023-18199
Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 8, 2023
Issuing agencies
Justice DepartmentExecutive Office for Immigration Review
Abstract
In December 2020, the Department of Justice issued a final rule (the "AA96 Final Rule") establishing novel limits on the authority of immigration judges and the Board of Immigration Appeals ("BIA" or "Board") to manage their dockets and efficiently dispose of cases. Among other changes, the AA96 Final Rule would have required the BIA to set simultaneous briefing schedules for every appeal, limited the authority of immigration judges and the BIA to temporarily pause cases while the United States Citizenship and Immigration Services ("USCIS") adjudicates a noncitizen's pending visa application, and restricted the BIA's discretion to remand matters to immigration judges in light of legal and factual errors. The AA96 Final Rule was enjoined shortly after its issuance in March 2021, and it has not been in effect since that date. After careful reconsideration, the Department proposes to restore longstanding procedures in place prior to the AA96 Final Rule, including administrative closure, and to clarify and codify other established practices. Given the aforementioned injunction, the proposed regulatory language largely reflects the currently operative status quo. The Department believes that this rule will promote the efficient and expeditious adjudication of cases, afford immigration judges and the BIA flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the BIA.
Full Text
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[Federal Register Volume 88, Number 173 (Friday, September 8, 2023)]
[Proposed Rules]
[Pages 62242-62283]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18199]
[[Page 62241]]
Vol. 88
Friday,
No. 173
September 8, 2023
Part III
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1001, 1003, 1239, et al.
Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure; Proposed Rule
Federal Register / Vol. 88, No. 173 / Friday, September 8, 2023 /
Proposed Rules
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1001, 1003, 1239, and 1240
[Docket No. EOIR 021-0410; AG Order No. 5738-2023]
RIN 1125-AB18
Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In December 2020, the Department of Justice issued a final
rule (the ``AA96 Final Rule'') establishing novel limits on the
authority of immigration judges and the Board of Immigration Appeals
(``BIA'' or ``Board'') to manage their dockets and efficiently dispose
of cases. Among other changes, the AA96 Final Rule would have required
the BIA to set simultaneous briefing schedules for every appeal,
limited the authority of immigration judges and the BIA to temporarily
pause cases while the United States Citizenship and Immigration
Services (``USCIS'') adjudicates a noncitizen's pending visa
application, and restricted the BIA's discretion to remand matters to
immigration judges in light of legal and factual errors. The AA96 Final
Rule was enjoined shortly after its issuance in March 2021, and it has
not been in effect since that date. After careful reconsideration, the
Department proposes to restore longstanding procedures in place prior
to the AA96 Final Rule, including administrative closure, and to
clarify and codify other established practices. Given the
aforementioned injunction, the proposed regulatory language largely
reflects the currently operative status quo. The Department believes
that this rule will promote the efficient and expeditious adjudication
of cases, afford immigration judges and the BIA flexibility to
efficiently allocate their limited resources, and protect due process
for parties before immigration judges and the BIA.
DATES: Electronic comments must be submitted, and written comments must
be postmarked or otherwise indicate a shipping date on or before
November 7, 2023. The electronic Federal Docket Management System at
<a href="http://www.regulations.gov">www.regulations.gov</a> will accept electronic comments until 11:59 p.m.
Eastern Time on that date.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit comments, identified by the agency name and reference
RIN 1125-AB18 or EOIR Docket No. 021-0410, by one of the two methods
below.
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow
the website instructions for submitting comments.
<bullet> Mail: Paper comments that duplicate an electronic
submission are unnecessary. If you wish to submit a paper comment in
lieu of electronic submission, please direct the mail/shipment to:
Raechel Horowitz, Chief, Immigration Law Division, Office of Policy,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
1800, Falls Church, VA 22041. To ensure proper handling, please
reference the agency name and RIN 1125-AB18 or EOIR Docket No. 021-0410
on your correspondence. Mailed items must be postmarked or otherwise
indicate a shipping date on or before the submission deadline.
FOR FURTHER INFORMATION CONTACT: Raechel Horowitz, Chief, Immigration
Law Division, Office of Policy, Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041,
telephone (703) 305-0289.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
proposed rule via one of the methods and by the deadline stated above.
The Department of Justice (``Department'') also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments that will provide the most
assistance to the Department in developing these procedures will
reference a specific portion of the proposed rule; explain the reason
for any recommended change; and include data, information, or authority
that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at
<a href="http://www.regulations.gov">www.regulations.gov</a>. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONALLY
IDENTIFYING INFORMATION'' in the first paragraph of your comment and
identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify the confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
<a href="http://www.regulations.gov">www.regulations.gov</a>.
Personally identifying information located as set forth above will
be placed in the agency's public docket file, but not posted online.
Confidential business information identified and located as set forth
above will not be placed in the public docket file. The Department may
withhold from public viewing information provided in comments that it
determines may impact the privacy of an individual or is offensive. For
additional information, please read the Privacy Act notice that is
available via the link in the footer of <a href="http://www.regulations.gov">www.regulations.gov</a>. To inspect
the agency's public docket file in person, you must make an appointment
with the agency. Please see the For Further Information Contact
paragraph above for agency contact information.
II. Legal Authority
The Department issues this proposed rule pursuant to section 103(g)
of the Immigration and Nationality Act (``INA''), 8 U.S.C. 1103(g), as
amended by the Homeland Security Act of 2002 (``HSA''), Public Law 107-
296, 116 Stat. 2135 (as amended). Under the HSA, the Attorney General
retains authority to ``establish such regulations, . . . issue such
instructions, review such administrative determinations in immigration
proceedings, delegate such authority, and perform such other acts as
the Attorney General determines to be necessary for carrying out'' the
Attorney General's authorities under the INA. HSA 1102, 116 Stat. at
2273-74; INA 103(g)(2), 8 U.S.C. 1103(g)(2).
III. History and Background
On August 26, 2020, the Department published a notice of proposed
rulemaking (``NPRM'' or ``proposed
[[Page 62243]]
rule'') that proposed to amend the Executive Office for Immigration
Review (``EOIR'') regulations regarding the handling of appeals to the
Board. Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020)
(``AA96 NPRM''). The Department proposed multiple changes to the
processing of appeals to ``ensure the consistency, efficiency, and
quality of its adjudications.'' Id. at 52491. In addition, the
Department proposed to amend the regulations to expressly state that
immigration judges and Appellate Immigration Judges \1\ have no
``freestanding'' authority to administratively close cases. Id.
Finally, the Department proposed to delete inapplicable or unnecessary
provisions regarding the forwarding of the record of proceeding on
appeal. Id.\2\ The AA96 NPRM set forth a 30-day comment period, stating
that any public comments must be submitted by September 25, 2020. Id.
The Department received 1,287 comments during the comment period.\3\
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\1\ Historically, Department rules, including the AA96 Final
Rule, used the term ``Board member'' to refer to members of the
Board. See Appellate Procedures and Decisional Finality in
Immigration Proceedings; Administrative Closure, 85 FR 81588, 81590
(Dec. 16, 2020). The Department has begun using the term ``Appellate
Immigration Judge'' to refer to members of the Board, and that is
the term used in this NPRM. Although ``Board member'' and
``Appellate Immigration Judge'' are synonymous, see 8 CFR
1003.1(a)(1)-(2), the Department believes that ``Appellate
Immigration Judge'' is a more accurate description of the role of
members of the Board. See Organization of the Executive Office for
Immigration Review, 84 FR 44537, 44539 (issued as interim final
rule) (Aug. 26, 2019).
\2\ In addition, the Department proposed to update outdated
references to the former Immigration and Naturalization Service
(``INS''). 85 FR at 52507 n.36.
\3\ The Department posted 1,284 of the comments received for
public review. The Department did not post three of the comments
received because they were either non-substantive or duplicates of
other comments that were posted.
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On December 16, 2020, the Department published a final rule,
wherein it responded to comments received during the notice-and-comment
period and adopted the regulatory language proposed in the AA96 NPRM
with minor changes. Appellate Procedures and Decisional Finality in
Immigration Proceedings; Administrative Closure, 85 FR 81588 (Dec. 16,
2020) (``AA96 Final Rule''). The AA96 Final Rule's effective date was
January 15, 2021, id. at 81588, but the rule was enjoined on March 10,
2021, in litigation described in further detail below. See Centro Legal
de la Raza v. Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 919 (N.D.
Cal. 2021).
A. Briefing Schedule Changes at the Board of Immigration Appeals
1. Before Promulgation of the AA96 Final Rule
Prior to the AA96 Final Rule, the regulations specified that
appeals involving detained noncitizens \4\ were subject to a
simultaneous briefing schedule, wherein both parties had 21 days to
file simultaneous briefs, unless the Board specified a shorter period.
8 CFR 1003.3(c)(1) (2019). The regulations permitted parties subject to
a simultaneous briefing schedule to submit reply briefs within 21 days
of the deadline for the initial brief, when permitted by the Board. Id.
For cases involving non-detained noncitizens, the regulations provided
for a consecutive briefing schedule. The appellant had 21 days to file
an initial brief, unless the Board specified a shorter period, and the
appellee then had an equivalent amount of time, including any
extensions granted to the appellant, to file a reply brief. Id.
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\4\ For purposes of the discussion in this preamble, the
Department uses the term ``noncitizen'' colloquially and synonymous
with the term ``alien'' as it is used in the INA. See INA 101(a)(3),
8 U.S.C. 1101(a)(3). This NPRM is also proposing to define the term
``noncitizen'' to be synonymous with the term ``alien,'' as
explained later in this preamble.
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Appellate Immigration Judges were authorized, upon written motion,
to extend the filing deadline of an initial brief or a reply brief for
up to 90 days for good cause shown. Id. Appellate Immigration Judges
generally granted briefing extensions in 21-day increments but would
also grant longer extensions for good cause shown. The regulations also
authorized Appellate Immigration Judges to request supplemental
briefing from parties after the briefing deadline expired. Id.
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule amended 8 CFR 1003.3(c)(1) to require a
simultaneous briefing schedule for all cases before the Board,
regardless of the noncitizen's detention status. 85 FR at 81588. The
AA96 Final Rule also reduced the allowable time to extend a briefing
schedule from a maximum of 90 days to a maximum of 14 days and limited
all parties to one briefing extension. Id. at 81654 (``If an extension
is granted, it is granted to both parties, and neither party may
request a further extension.''). The AA96 Final Rule specified that no
party was entitled to a briefing extension as a matter of right and
that briefing extensions should only be granted upon an
``individualized consideration of good cause.'' Id. The AA96 Final Rule
also shortened the maximum amount of time for submitting reply briefs
from 21 days to 14 days, and only when the Board permitted filing of a
reply brief. Id.
B. Administrative Closure Authority
1. Before Promulgation of the AA96 Final Rule
Prior to the AA96 Final Rule, 8 CFR 1003.1(d)(1)(ii) (2019) and
1003.10(b) (2019) stated that EOIR adjudicators ``may take any action
consistent with their authorities under the [INA] and the regulations
as is appropriate and necessary for the disposition'' of the case.
Although the regulations have never explicitly stated that EOIR
adjudicators have general administrative closure authority, numerous
courts of appeals and the Board have interpreted ``any action'' to
include using docket management tools such as administrative closure.
See Romero v. Barr, 937 F.3d 282, 292 (4th Cir. 2019) (explaining that
``[8 CFR] 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer[ ] upon
[immigration judges] and the BIA the general authority to
administratively close cases''); Meza Morales v. Barr, 973 F.3d 656,
667 n.6 (7th Cir. 2020) (Barrett, J.) (concluding that ``[8 CFR]
1003.10(b) grants immigration judges the power to administratively
close cases''); Arcos Sanchez v. Att'y Gen., 997 F.3d 113, 122 (3d Cir.
2021) (explaining ``that the plain language establishes that general
administrative closure authority is unambiguously authorized by these
regulations''); Matter of Avetisyan, 25 I&N Dec. 688, 692 (BIA 2012)
(stating that EOIR adjudicators may utilize continuances or
administrative closure ``to temporarily remove a case from an
Immigration Judge's active calendar or from the Board's docket''). But
see Hernandez-Serrano v. Barr, 981 F.3d 459, 466 (6th Cir. 2020)
(concluding that ``[8 CFR] 1003.10(b) and 1003.1(d) do not delegate to
[immigration judges] or the Board the general authority to suspend
indefinitely immigration proceedings by administrative closure''
(internal quotation marks omitted)); Garcia-DeLeon v. Garland, 999 F.3d
986, 991-93 (6th Cir. 2021) (subsequently ruling that immigration
judges and the Board do have authority to grant administrative closure
to permit a noncitizen to apply for a provisional unlawful presence
waiver).
Since 1958, regulations have authorized EOIR adjudicators to
exercise their discretion as may be ``appropriate and necessary'' for
the disposition of a case. Miscellaneous Amendments to Chapter, 23 FR
2670,
[[Page 62244]]
2671 (Apr. 23, 1958) (``Subject to any specific limitation prescribed
by the act and this chapter, special inquiry officers shall also
exercise the discretion and authority conferred upon the Attorney
General by the act as is appropriate and necessary for the disposition
of such cases.''); \5\ see also Hernandez-Serrano, 981 F.3d at 464
(``As early as 1958, regulations granted the predecessors to
[immigration judges] (called `special inquiry officers') and the Board
authority to take actions `appropriate and necessary for the
disposition of' their cases.''). In 2000, the Department published an
NPRM that proposed more expansive authority: that EOIR adjudicators
could take ``any action'' appropriate and necessary for the disposition
of a case. See Authorities Delegated to the Director of the Executive
Office for Immigration Review, the Chairman of the Board of Immigration
Appeals, and the Chief Immigration Judge, 65 FR 81434, 81436-37 (Dec.
26, 2000). The Department adopted this regulatory language for Board
members in 2002, and for immigration judges in 2007.\6\
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\5\ Initially, the adjudicators who reviewed and decided
deportation cases were known as special inquiry officers. INA
101(b)(4), 8 U.S.C. 1101(b)(4) (1952). These adjudicators later
became known as immigration judges. See INA 101(b)(4), 8 U.S.C.
1101(b)(4) (defining ``immigration judge''); Immigration Judge, 38
FR 8590 (Apr. 4, 1973) (``The term `immigration judge' means special
inquiry officer.'').
\6\ Although the same NPRM proposed this regulatory authority
for both the Board and immigration judges, the regulatory language
was codified for the Board and immigration judges in separate final
rules. See Board of Immigration Appeals: Procedural Reforms to
Improve Case Management, 67 FR 54877, 54902-904 (Aug. 26, 2002);
Authorities Delegated to the Director of the Executive Office for
Immigration Review, and the Chief Immigration Judge, 72 FR 53673,
53677-78 (Sept. 20, 2007).
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Since at least the 1980s,\7\ immigration judges and the Board have
exercised their authority to use administrative closure as a docketing
tool, where appropriate, to remove cases from their active dockets and
to regulate the course of proceedings. See Arcos Sanchez, 997 F.3d at
116-17 (recognizing that adjudicators have used administrative closure
dating back to the 1980s).
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\7\ Indeed, EOIR records indicate that administrative closure
was used as early as 1974.
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In 1984, the EOIR Office of the Chief Immigration Judge issued an
Operating Policies and Procedures Memorandum (``OPPM'') setting forth
options available to immigration judges in cases where noncitizens
failed to appear for their hearings, including the option to
administratively close cases. EOIR, OPPM 84-2: Cases in Which
Respondents/Applicants Fail to Appear for Hearing, 1984 WL 582760 (Mar.
7, 1984). The OPPM included language specifying that administratively
closed cases were to be considered ``no longer pending before the
Immigration Judge,'' and that no further action would be taken until
``the case is presented for re-calendaring and further proceedings.''
Id. at *2. The OPPM provided a non-exhaustive list of factors for
immigration judges to consider such as adequacy of notice; likelihood
that a deportation order, if entered in absentia, would be enforced;
the nature of charges; and the need for parties to be present. Id. at
*1.
The next significant development in the exercise of administrative
closure came in 1986, shortly after President Reagan signed into law
the Immigration Reform and Control Act of 1986, Public Law 99-603, 100
Stat. 3359. The Immigration Reform and Control Act created a pathway to
lawful status for certain undocumented noncitizens who had entered the
United States prior to January 1, 1982. Immigration judges used
administrative closure to pause removal proceedings while noncitizens
pursued this newly available pathway to lawful status. See, e.g., Veliz
v. Caplinger, No. 96-1508, 1997 WL 61456, at *1 (E.D. La. Feb. 12,
1997) (noting that the removal proceedings before the agency were
administratively closed to allow noncitizens to apply for legalization
under the Immigration Reform and Control Act).
As administrative closure became more common, the Board began to
address questions related to its use. For example, in 1988, the Board
published a decision in which it determined that an immigration judge
improperly exercised administrative closure authority. Matter of Amico,
19 I&N Dec. 652, 654 (BIA 1988) (determining that the immigration
judge's decision to administratively close a case rather than hold
proceedings in absentia was ``inappropriate'' because administrative
closure would have permitted the noncitizen to avoid an order of
deportation by failing to appear). In its decision, the Board clarified
that administratively closing a case ``does not result in a final
order'' and ``is merely an administrative convenience which allows the
removal of cases from the calendar in appropriate situations.'' Id. at
654 n.1. In 1990, the Board published Matter of Lopez-Barrios and
Matter of Munoz-Santos, both of which held that an immigration judge
could not administratively close a case if either party to the
proceedings opposed closure. Matter of Lopez-Barrios, 20 I&N Dec. 203
(BIA 1990), overruled by Matter of Avetisyan, 25 I&N Dec. at 697;
Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990), overruled by Matter
of Avetisyan, 25 I&N Dec. at 697.\8\
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\8\ These decisions did not suggest that adjudicators did not
have the authority to administratively close cases. Rather, they, as
well as numerous subsequent administrative decisions, addressed when
using administrative closure might be ``appropriate'' under the
regulations. See 8 CFR 236.1 (1958) (permitting adjudicators to
exercise authorities only as ``appropriate and necessary''); see
also 8 CFR 1003.1(d)(1)(ii) (2019); 8 CFR 1003.10(b) (2019).
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Over the next decade, the Department entered into binding
settlement agreements and issued numerous regulations that required
immigration judges and the Board to administratively close cases or
provided that parties could request administrative closure in a variety
of specified situations. See, e.g., Barahona-Gomez v. Ashcroft, 243 F.
Supp. 2d 1029, 1035 (N.D. Cal. 2002) (``[I]f the [Respondent] fails to
appear for the scheduled hearing . . . the case shall be
administratively closed, following which, should the Respondent come
forward, the hearing shall be recalendared[.]''); American Baptist
Churches v. Thornburgh, 760 F. Supp. 796, 805 (N.D. Cal. 1991)
(``ABC'') (ordering that proceedings before EOIR be administratively
closed, generally, for class members); Adjustment of Status for Certain
Nationals of Nicaragua and Cuba, 63 FR 27823, 27830 (May 21, 1998)
(implementing administrative closure procedures for noncitizens who
appeared eligible to adjust status under the Nicaraguan Adjustment and
Central American Relief Act of 1997 (``NACARA'')) (8 CFR 245.13(d)(3)
(1999)); Adjustment of Status for Certain Nationals of Haiti, 64 FR
25756, 25769 (May 12, 1999) (requiring EOIR adjudicators to exercise
administrative closure in cases where noncitizens appeared to be
eligible to file an application for adjustment of status under the
Haitian Refugee Immigration Fairness Act of 1998 (``HRIFA'') and met
various other requirements) (8 CFR 245.15(p)(4) (2000)); Executive
Office for Immigration Review; Adjustment of Status for Certain
Nationals of Nicaragua, Cuba, and Haiti, 66 FR 29449, 29452 (May 31,
2001) (providing that a noncitizen for whose case an immigration judge
or the Board has granted a motion to reopen under particular statutes
may move to have proceedings administratively closed to seek adjustment
of status) (8 CFR 245.13(m)(1)(ii) (2002)); V Nonimmigrant
Classification; Spouses and Children of Lawful Permanent Residents, 66
FR 46697, 46700 (Sept. 7, 2001) (``If the [noncitizen] appears eligible
for V nonimmigrant status, the
[[Page 62245]]
immigration judge or the Board, whichever has jurisdiction, shall
administratively close the proceeding or continue the motion
indefinitely.'') (8 CFR 214.15(l) (2002)); New Classification for
Victims of Severe Forms of Trafficking in Persons; Eligibility for
``T'' Nonimmigrant Status, 67 FR 4783, 4797 (Jan. 31, 2002) (stating
that T-visa applicants may request administrative closure) (codifying
language later moved to 8 CFR 1214.2(a)); Adjustment of Status for
Certain Aliens from Vietnam, Cambodia, and Laos in the United States,
67 FR 78667, 78673 (Dec. 26, 2002) (authorizing certain nationals of
Vietnam, Cambodia, and Laos to move for administrative closure pending
their applications for adjustment of status, but preventing the
immigration judge or the Board from ``defer[ring] or dismiss[ing] the
proceeding'' without the former Immigration and Naturalization
Service's consent) (codifying language later moved to 8 CFR
1245.21(c)).
Since 2011, the U.S. Department of Homeland Security (``DHS'') has
issued a number of enforcement priority memoranda, some of which have
subsequently been rescinded, that included discussions of when U.S.
Immigration and Customs Enforcement (``ICE'') attorneys should exercise
prosecutorial discretion in pursuing removal, which noncitizens were
considered priorities for removal, and methods for implementing those
priorities as to noncitizens who were already in removal proceedings,
including by filing joint motions to administratively close
proceedings. See, e.g., Memorandum for All Field Office Directors et
al., from John Morton, Director, ICE, Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities
of the Agency for the Apprehension, Detention, and Removal of Aliens at
2 (Jun. 17, 2011) (describing prosecutorial discretion as a decision
``not to assert the full scope of the enforcement authority available
to the agency''), <a href="https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf">https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf</a>; Memorandum for Tae D. Johnson,
Acting Director, ICE, from Alejandro N. Mayorkas, Secretary, DHS,
Guidelines for the Enforcement of Civil Immigration Law (Sept. 30,
2021), <a href="https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf">https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf</a>.
Many pending removal-related cases before EOIR and the federal
courts at the time potentially fell under the memoranda's criteria for
low priorities for removal. Cf. In re Immigr. Petitions for Rev.
Pending in U.S. Ct. of Appeals for Second Cir., 702 F.3d 160, 160 (2d
Cir. 2012) (``[The petitioner] is one of more than a thousand cases in
our Court that are actually or potentially subject to a future decision
by the Government as to whether it will or can remove petitioners if
their petitions are denied.''). The use of administrative closure
served to facilitate the exercise of prosecutorial discretion by
allowing DHS counsel to request that certain low-priority cases be
removed from immigration judges' active calendars and the Board's
docket, thereby allowing adjudicators to focus on higher priority
cases.
In 2012, the Board published Matter of Avetisyan, which overruled
the Board's prior precedent in Matter of Lopez-Barrios and Matter of
Munoz-Santos. In Matter of Avetisyan, the Board established that EOIR
adjudicators could administratively close proceedings over a party's
objection and set forth a list of factors that adjudicators should
consider when determining whether administrative closure was
appropriate.\9\ 25 I&N Dec. at 688. In so holding, the Board stated
that EOIR adjudicators' authority to administratively close proceedings
stemmed from their general regulatory authority, under 8 CFR 1003.10(b)
and 1003.1(d)(1)(ii), to take any appropriate and necessary action. Id.
at 691. The Board found that an EOIR adjudicator's determination to
administratively close a case over DHS's objection would not undermine
DHS's prosecutorial discretion, as prosecutorial discretion related to
DHS's decision to commence removal proceedings. Id. at 694. In
contrast, the Board determined that once jurisdiction over removal
proceedings vests with EOIR, the EOIR adjudicator has the authority to
regulate the course of proceedings, including to administratively close
cases where appropriate. Id.
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\9\ Notably, before Matter of Avetisyan overruled the Board's
prior precedent on this issue, the Board had encouraged DHS to
consider moving for administrative closure rather than multiple
continuances in ``appropriate circumstances, such as where there is
a pending prima facie approvable visa petition.'' Matter of Hashmi,
24 I&N Dec. 785, 791 n.4 (BIA 2009); see also Matter of Rajah, 25
I&N Dec. 127, 135 n.10 (BIA 2009). The Board described
administrative closure as ``an attractive option in these
situations, as it will assist in ensuring that only those cases that
are likely to be resolved are before the Immigration Judge.'' Matter
of Hashmi, 24 I&N Dec. at 791 n.4. The Board also noted that
administrative closure could ``avoid the repeated rescheduling of a
case that is clearly not ready to be concluded.'' Id.
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The Board also explained that EOIR adjudicators should
independently weigh all relevant factors in determining whether to
administratively close a case, including but not limited to:
(1) the reason administrative closure is sought; (2) the basis
for any opposition to administrative closure; (3) the likelihood the
respondent will succeed on any petition, application, or other
action [the respondent] is pursuing outside of removal proceedings;
(4) the anticipated duration of the closure; (5) the responsibility
of either party, if any, in contributing to any current or
anticipated delay; and (6) the ultimate outcome of removal
proceedings (for example, termination of the proceedings or entry of
a removal order) when the case is recalendared before the
Immigration Judge or the appeal is reinstated before the Board.
Id. at 696. The Board later held that ``the primary consideration
for an Immigration Judge in determining whether to administratively
close or recalendar proceedings is whether the party opposing
administrative closure has provided a persuasive reason for the case to
proceed and be resolved on the merits.'' Matter of W-Y-U-, 27 I&N Dec.
17, 20 (BIA 2017).
In 2013, DHS published a final rule that allowed certain
noncitizens in removal proceedings to apply for provisional unlawful
presence waivers of inadmissibility while still in the United States,
but only if their removal proceedings had been administratively closed
and not recalendared at the time they filed for the waiver. Provisional
Unlawful Presence Waivers of Inadmissibility for Certain Immediate
Relatives, 78 FR 535, 577 (Jan. 3, 2013) (codifying language that was
later moved to 8 CFR 212.7(e)(4)(iii)).\10\ DHS further articulated
that administrative closure is an appropriate and common procedural
tool for dispensing with non-priority cases. Id. at 544 (``Under its
prosecutorial discretion (PD) policies, ICE has been reviewing cases
pending
[[Page 62246]]
before EOIR and all incoming cases to ensure that they are aligned with
the agency's civil enforcement priorities and that ICE is effectively
using its finite resources. For cases that ICE determines are not
enforcement priorities, it exercises its discretion where appropriate,
typically by moving for administrative closure.''). That same year, the
Office of the Chief Immigration Judge encouraged immigration judges to
use administrative closure where the parties reached an ``alternate
case resolution'' through prosecutorial discretion. See EOIR, OPPM 13-
01: Continuances and Administrative Closure at 4 (Mar. 7, 2013)
(rescinded), <a href="https://www.justice.gov/sites/default/files/eoir/legacy/2013/03/08/13-01.pdf">https://www.justice.gov/sites/default/files/eoir/legacy/2013/03/08/13-01.pdf</a>.
---------------------------------------------------------------------------
\10\ Pursuant to INA 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B),
noncitizens who are inadmissible because they accrued more than 180
days of unlawful presence while in the United States and
subsequently depart the United States may seek waiver of this ground
of inadmissibility. Prior to the DHS rulemaking, such noncitizens,
if not eligible to adjust status within the United States, had to
request a waiver at their consular interview after leaving the
United States and triggering the ground of inadmissibility. 78 FR at
536. In 2013, DHS established the provisional unlawful presence
waiver process. Id. It began allowing noncitizens who are immediate
relatives (spouses, children, and parents) of U.S. citizens to apply
for a waiver while remaining in the United States, and, upon
provisional approval, travel abroad to attend their consular
interview for an immigrant visa, thus mitigating the likelihood that
such individuals would be required to wait outside of the United
States, apart from their immediate relatives, while the waiver was
adjudicated. Id. In 2016, to further improve administrative
efficiency, DHS expanded the provisional unlawful presence waiver
process to all noncitizens statutorily eligible for an immigrant
visa and a waiver of inadmissibility based on unlawful presence in
the United States. Expansion of Provisional Unlawful Presence
Waivers of Inadmissibility, 81 FR 50244 (July 29, 2016).
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In 2017, the effectiveness of administrative closure for
streamlining EOIR's cases was briefly referenced in a study conducted
by an outside consultant. See EOIR, Booz Allen Hamilton, Legal Case
Study: Summary Report at 26 (Apr. 6, 2017) (recommending that the
Department engage in discussions with DHS to explore the development of
policies regarding administrative closure as one way to improve
processing efficiency).\11\
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\11\ The Department has considered the various proposals made in
the report. For example, in 2021, EOIR finalized a rule implementing
electronic filing at all immigration courts and the BIA. See Booz
Allen Hamilton, Legal Case Study: Summary Report at 23; Executive
Office for Immigration Review Electronic Case Access and Filing, 86
FR 70708 (Dec. 13, 2021) (``ECAS Rule'').
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In 2018, the longstanding practice of administrative closure
stopped when the Attorney General issued Matter of Castro-Tum,
overruling Matter of Avetisyan and all Board precedents inconsistent
with the Attorney General's decision. Matter of Castro-Tum, 27 I&N Dec.
271, 271 (A.G. 2018), overruled by Matter of Cruz-Valdez, 28 I&N Dec.
326 (A.G. 2021). In Castro-Tum, the Attorney General held that EOIR
adjudicators lack the general authority under the regulations to
administratively close cases and, as a result, lack the authority to
administratively close cases unless a regulation or a settlement
agreement expressly provided such authority. Id. at 272.
Matter of Castro-Tum has been rejected by the majority of those
courts of appeals that have considered it. The Third, Fourth, and
Seventh Circuits rejected Matter of Castro-Tum, holding that the pre-
AA96 regulations unambiguously provide EOIR adjudicators with general
authority to administratively close cases. See Romero, 937 F.3d at 297
(concluding that 8 CFR 1003.10(b) and 1003.1(d)(1)(ii) ``unambiguously
confer upon [immigration judges] and the BIA the general authority to
administratively close cases''); Arcos Sanchez, 997 F.3d at 122 (``[W]e
hold that the plain language establishes that general administrative
closure authority is unambiguously authorized by these regulations.'');
Meza Morales, 973 F.3d at 667 n.6 (concluding that 8 CFR 1003.10(b)
``grants immigration judges the power to administratively close
cases''). The Sixth Circuit reached a different conclusion, finding
that the pre-AA96 regulations do not confer such general authority.
Hernandez-Serrano, 981 F.3d at 466 (citing Matter of Castro-Tum, 27 I&N
Dec. at 272). However, the Sixth Circuit subsequently clarified that
``administrative closure for the limited purpose of permitting
noncitizens to apply for provisional unlawful presence waivers'' was an
``appropriate and necessary'' act under 8 CFR 1003.1(d)(1)(ii) and
1003.10(b), as codified prior to the AA96 Final Rule. Garcia-DeLeon,
999 F.3d 986 at 992-93.
Recently, the Second Circuit held that neither the immigration
judge nor the BIA abused its discretion in relying on Matter of Castro-
Tum--which was in effect at the time of the agency's adjudications--to
deny a noncitizen's motion for administrative closure. Garcia v.
Garland, 64 F.4th 62, 76 (2d Cir. 2023). The Second Circuit concluded
that the pre-AA96 regulations were ambiguous as to whether they
authorized general administrative closure and deferred to the Attorney
General's interpretation in Matter of Castro-Tum. See id. at 72-75.
However, the Second Circuit noted that--after the BIA issued its
decision in the case--the Attorney General issued Matter of Cruz-
Valdez, 28 I&N Dec. at 326, which overruled Matter of Castro-Tum.
Garcia v. Garland, 64 F.4th at 69. In Cruz-Valdez, the Attorney General
explained that ``three courts of appeals have rejected Castro-Tum,''
that Castro-Tum ``departed from long-standing practice,'' and that the
matter was the subject of an ongoing rulemaking. See Matter of Cruz-
Valdez, 28 I&N Dec. at 328-29 (directing EOIR adjudicators to continue
applying the standard for administrative closure set forth in Matter of
Avetisyan and Matter of W-Y-U-, except in jurisdictions where a court
of appeals has held otherwise, while the Department reconsiders the
AA96 Final Rule). Against this backdrop, the Second Circuit left open
the possibility that other interpretations of the regulations could
also be permissible. See Garcia v. Garland, 64 F.4th at 69 (noting that
``the Attorney General has supplanted Matter of Castro-Tum with a new
interpretation of the applicable regulations'').
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule amended 8 CFR 1003.1(d)(1)(ii) and 1003.10(b)
and related provisions to expressly state that EOIR adjudicators do not
have ``freestanding authority'' to administratively close cases before
EOIR. 85 FR at 81651, 81655. Rather, the AA96 Final Rule expressly
limited administrative closure authority to express grants of such
authority by regulation or judicially approved settlement. See, e.g., 8
CFR 1214.2(a), 1214.3, 1240.62(b), 1240.70(f)-(h), 1245.13(d)(3)(i),
1245.15(p)(4)(i), 1245.21(c); Barahona-Gomez, 243 F. Supp. 2d at 1035-
36 (discussing settlement agreement requiring immigration judges and
the Board to administratively close class members' cases).
The AA96 Final Rule was consistent with the Attorney General's
holding in Matter of Castro-Tum, 27 I&N Dec. at 284, that 8 CFR
1003.1(d)(1)(ii) and 1003.10(b) do not provide for general
administrative closure authority.\12\ The AA96 Final Rule asserted that
general administrative closure authority improperly allows immigration
judges to determine which immigration cases should be adjudicated and
which ones should not. 85 FR at 81599. The AA96 Final Rule stated that
general authority to administratively close cases was improper because
``in practice, unlike continuances, administrative closure has at times
been used to effectively terminate cases through indefinite delay.''
Id.
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\12\ Moreover, the AA96 Final Rule cited the Attorney General's
explanation that general administrative closure authority conflicts
with regulatory requirements to resolve matters in a ``timely''
fashion. 85 FR 81588 (Dec. 16, 2020) at 81599.
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C. Termination and Dismissal
As discussed above, the regulations in place prior to the AA96
Final Rule conferred on EOIR adjudicators the general authority to
``take any action consistent with their authorities under the Act and
regulations'' as ``appropriate and necessary for the disposition'' of
such cases. 8 CFR 1003.1(d)(1)(ii), 1003.10(b). The regulations further
state that immigration judge orders ``shall direct the respondent's
removal from the United States, or the termination of the proceedings,
or other such disposition of the case as may be appropriate.'' 8 CFR
1240.12(c). Further, immigration judges are ``authorized to
[[Page 62247]]
issue orders in the alternative or in combination as [they] may deem
necessary.'' Id.
The regulations, as published prior to and unchanged by the AA96
Final Rule, provide immigration judges with explicit authority to
terminate or dismiss removal proceedings after the commencement of
proceedings in certain circumstances. With respect to dismissal, 8 CFR
1239.2(c) provides that after commencement of proceedings, government
counsel or certain enumerated officers under 8 CFR 239.1(a) may move to
dismiss proceedings on grounds set forth in 8 CFR 239.2(a), which
include where: (1) the respondent is a national of the United States;
(2) the respondent is not deportable or inadmissible under immigration
laws; (3) the respondent is deceased; (4) the respondent is not in the
United States; (5) the Notice to Appear was issued for the respondent's
failure to file a timely petition as required by section 216(c) of the
Act, but the respondent's failure to file a timely petition was excused
in accordance with section 216(d)(2)(B) of the Act; (6) the Notice to
Appear was improvidently issued; or (7) circumstances of the case have
changed after the Notice to Appear was issued to such an extent that
continuation is no longer in the best interest of the government. 8 CFR
1239.2(c). Dismissal of proceedings is without prejudice to DHS or the
noncitizen. Id.
With respect to termination, 8 CFR 1239.2(f) provides that ``[a]n
immigration judge may terminate removal proceedings to permit the
[noncitizen] to proceed to a final hearing on a pending application or
petition for naturalization when the [noncitizen] has established prima
facie eligibility for naturalization and the matter involves
exceptionally appealing or humanitarian factors[.]'' 8 CFR 1239.2(f).
The regulation also provides that ``in every other case, the removal
hearing shall be completed as promptly as possible notwithstanding the
pendency of an application for naturalization during any state of the
proceedings.'' Id.
The regulations also confer authority on immigration judges to
dismiss or terminate proceedings in other discrete circumstances. See,
e.g., 8 CFR 1216.4(a)(6) (authorizing termination upon joint motion of
the parties for failure to properly file a Petition to Remove the
Conditions on Residence, Form I-751); 8 CFR 1235.3(b)(5)(iv)
(authorizing termination where U.S. citizenship, permanent residence,
or asylee or refugee status is found in claimed status review
proceedings); id. at 1235.3(b)(5)(iv) (authorizing termination where
U.S. citizenship, permanent residence, or asylee or refugee status is
found in claimed status review proceedings); id. at 1238.1(e)
(authorizing termination upon DHS motion in order for DHS to commence
administrative removal under section 238 of the Act); see also id. at
1245.13(l) (deeming proceedings terminated upon the granting of
adjustment of status for certain Nicaraguan and Cuban nationals).\13\
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\13\ Although codified separately in the regulations,
termination and dismissal authority have been referenced
interchangeably by EOIR. See, e.g., Matter of Coronado Acevedo, 28
I&N Dec. 648, 648 n.1 (A.G. 2022) (``This labeling distinction is
not material when a movant asks an immigration judge or the Board to
end a case pursuant to a provision that does not use one of those
labels. Except where a distinction between the two terms exists in
regulations, this opinion refers to `termination' and `dismissal'
interchangeably.''); Matter of Vizcarra-Delgadillo, 13 I&N Dec. 51,
55 (BIA 1968) (holding that the immigration judge had authority to
terminate proceedings as ``improvidently begun'' in a case where INS
moved for dismissal and both parties agreed to the motion to
dismiss); Matter of G-N-C, 22 I&N Dec. 281, 284 (BIA 1998) (using
the term ``dismissal'' and ``termination'' interchangeably in a case
involving an INS motion for dismissal of proceedings under former 8
CFR 239.2(c)); Matter of W-C-B-, 24 I& N Dec. 118, 122 (BIA 2007)
(stating that once jurisdiction vests with an immigration judge, a
Notice to Appear cannot be cancelled but instead DHS must ``move for
dismissal of the matter, i.e., request termination of the removal
proceeding'' under 8 CFR 239.2(c)); Matter of Andrade Jaso &
Carbajal Ayala, 27 I&N Dec. 557, 559 (BIA 2019) (holding that the
``immigration judge properly granted the DHS's motion to dismiss the
proceedings without prejudice'' under 8 CFR 1239.2(c)); see also 78
FR 535 (Jan. 3, 2013) at 544 (preamble to a DHS final rule stating
that ``[i]f the Form I-601A is approved for [a noncitizen] whose
proceedings have been administratively closed, the [noncitizen]
should seek termination or dismissal of the proceedings, without
prejudice, by EOIR . . . or risk becoming ineligible for the
immigrant visa based on another ground of inadmissibility''). While
used interchangeably, the regulations limit dismissal to only those
cases where DHS has moved for dismissal. Nevertheless, both
termination and dismissal result in concluding removal proceedings
without entering an order of removal.
---------------------------------------------------------------------------
Additionally, the Board has held that the immigration judge may
terminate proceedings when there is a proper reason to do so, such as
where DHS cannot meet its burden to sustain charges of removability
``or in other specific circumstances consistent with the law and
applicable regulations.'' Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45
(BIA 2012); see also Matter of Lopez-Barrios, 20 I&N Dec. at 204.
In 2018, the Attorney General held that, under the regulations,
EOIR adjudicators lacked the ``inherent authority'' to terminate
proceedings except as expressly authorized. Matter of S-O-G- & F-D-B-,
27 I&N Dec. 462, 463 (A.G. 2018). In reaching that conclusion, the
Attorney General relied heavily on the decision in Matter of Castro-
Tum. See id. at 463, 466. However, the Attorney General subsequently
overruled Matter of S-O-G- & F-D-B-, explaining that ``[t]he
precedential basis for that opinion ha[d] been significantly eroded by
the overruling of Castro-Tum,'' \14\ and that it ``imposed `rigid
procedural requirements that would undermine . . . fair and efficient
adjudication' in certain immigration cases.'' Matter of Coronado
Acevedo, 28 I&N Dec. 648, 651 (A.G. 2022) (quoting Matter of A-C-A-A-,
28 I&N Dec. 351, 351 (A.G. 2021)). Accordingly, Matter of Coronado
Acevedo held that ``immigration judges and the Board should be
permitted to consider and, where appropriate, grant termination'' in
certain limited circumstances pending the outcome of a rulemaking to
reconsider the regulations at issue in both Matter of Castro-Tum and
Matter of S-O-G- & F-D-B-. Id. at 652.
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\14\ In particular, the Fourth Circuit has indicated that it
``fail[ed] to see how the general power to terminate proceedings''
would be inconsistent with the ``authorities bestowed by the INA.''
Gonzalez v. Garland, 16 F.4th 131, 141-42 (4th Cir. 2021) (``We have
found no provisions stating that the [immigration judge] or BIA
cannot terminate removal proceedings, and the Government does not
cite to any.''). Further, in that case, the Fourth Circuit rejected
the Government's position that section 240(c)(1)(A) of the Act, 8
U.S.C. 1229a(c)(1)(A), which states that ``[a]t the conclusion of
the proceeding, the immigration judge shall decide whether [a
noncitizen] is removable from the United States,'' precludes
termination. Gonzalez, 16 F.4th at 141. Specifically, the court
concluded that a statutory requirement that an immigration judge
decide whether a noncitizen is removable does not limit the
immigration judge's actions after making that determination, and
that there are circumstances where delay or termination after such
determination may be appropriate. Id.
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D. Sua Sponte Reopening or Reconsideration and Self-Certification
1. Before Promulgation of the AA96 Final Rule
EOIR adjudicators have long had the authority to sua sponte reopen
or reconsider cases, under rules promulgated in 1958 that remained in
effect until the issuance of the AA96 Final Rule. See Miscellaneous
Amendments to Chapter, 23 FR 9115, 9117 (Nov. 26, 1958); 8 CFR
1003.2(a)(1) and 1003.23(b)(1) (2019).\15\ However, even prior to 1958,
courts recognized such authority. See Dada v. Mukasey, 554 U.S. 1, 12-
13 (2008) (discussing
[[Page 62248]]
reopening as ``a judicial creation later codified by federal statute''
and citing decisions using reopening as early as 1916).
---------------------------------------------------------------------------
\15\ The 1958 rule amended, inter alia, part 3.2 of Title 8 of
the CFR. Following the creation of DHS in 2003 after the passage of
the HSA, EOIR's regulations were moved from Chapter I of Title 8 to
Chapter V. Aliens and Nationality; Homeland Security; Reorganization
of Regulations, 68 FR 9824 (Feb. 28, 2003). Part 3.2 was
subsequently duplicated for EOIR at part 1003.2. Id. at 9830.
---------------------------------------------------------------------------
As originally implemented by the Department, the sua sponte
authority of immigration judges and Appellate Immigration Judges was
not limited by time or number requirements. In 1996, however, the
Department issued a rule establishing time and number limitations on
motions to reopen to implement statutory changes made by the
Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978.
Immigration Act of 1990, sec. 545(d), 104 Stat. at 5066 (``[T]he
Attorney General shall issue regulations with respect to . . . the
period of time in which motions to reopen and to reconsider may be
offered in deportation proceedings, which regulations include a
limitation on the number of such motions that may be filed and a
maximum time period for the filing of such motions[.]''); Executive
Office for Immigration Review; Motions and Appeals in Immigration
Proceedings, 61 FR 18900 (Apr. 29, 1996). At the time, the Department
declined to include a ``good cause'' exception to the time and number
limitations for motions to reopen filed by a party in proceedings
because the same goal was accomplished by sua sponte authority. 61 FR
at 18902; see also Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357,
1363 (11th Cir. 2013) (same).
Additionally, prior to the AA96 Final Rule, the Board had the
authority to self-certify cases. 8 CFR 1003.1(c) (2019). Under this
authority, the Board could, in its discretion, review decisions of an
immigration judge and DHS by its own certification. 8 CFR 1003.1(b)-(c)
(2019). The Board could exercise this authority even in cases where a
party's appeal was untimely or defective, after determining that the
parties were given a fair opportunity to make representations before
the Board. Id.
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule revised the regulations to limit the
longstanding general sua sponte authority to reopen or reconsider cases
and established that sua sponte reopening or reconsideration could only
be used to correct typographical errors or defects in service. 85 FR at
81654-55 (8 CFR 1003.23(b)(1)). The AA96 Final Rule also limited
exceptions to the time and numerical limits on filing a motion to
reopen to cases where a change in fact or law post-dating the entry of
a final order vitiated the grounds for removal and the movant
demonstrated diligence in pursuing the motion. Id. (8 CFR
1003.23(b)(4)(v)). The Department chose to apply these restrictions on
immigration judges' and the Board's sua sponte reopening authority to
all pending cases. Id. at 81646-47. The Department explained that this
rescission was needed because sua sponte authority had been used
improperly. Id. at 81628. Additionally, the Department explained that
the Attorney General rescinded his delegation of sua sponte authority
to reopen or reconsider given the lack of a meaningful standard to
guide a decision whether to order reopening or reconsideration of cases
through the use of sua sponte authority. Id.
The AA96 Final Rule also amended 8 CFR 1003.1(c) to remove the
Board's authority to self-certify cases in order to accept untimely or
defective appeals in exceptional circumstances. The Department
explained that the change was necessary due to similar concerns such as
the lack of standards for the use of the self-certification authority,
inconsistent applications resulting from the lack of a defined standard
for determining when ``exceptional'' circumstances exist, the potential
for lack of notice to the parties when the Board elected to use its
self-certification authority, the potential for inconsistent
application and abuse of self-certification authority, and the strong
interest in finality of EOIR's adjudications. Id. at 81591.
E. Board Findings of Fact--Administrative Notice
1. Before Promulgation of the AA96 Final Rule
Prior to the AA96 Final Rule, the regulations generally precluded
the Board from engaging in fact-finding in the course of deciding
appeals. 8 CFR 1003.1(d)(3)(iv) (2019). However, the regulations
authorized the Board to take ``administrative notice of commonly known
facts such as current events or the contents of official documents.''
Id.
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule expanded the regulations regarding
administrative notice in several ways. First, in addition to permitting
the Board to take administrative notice of the content of official
documents and current events, the rule further permitted the Board to
take administrative notice of ``[f]acts that can be accurately and
readily determined from official government sources and whose accuracy
is not disputed'' and ``[u]ndisputed facts contained in the record.''
85 FR at 81651 (8 CFR 1003.1(d)(3)(iv)(A)(3), (4)). The AA96 Final Rule
went on to state that where the Board intends to rely on
administratively noticed facts to reverse an immigration judge's grant
of relief or protection from removal, the Board is required to notify
the parties of its intent and provide them at least 14 days within
which to respond to the notice. Id. (8 CFR 1003.1(d)(3)(iv)(B)).
However, the AA96 Final Rule did not require the Board to notify the
parties if it relied on an administratively noticed fact to uphold an
immigration judge's denial. See id. (8 CFR 1003.1(d)(3)(v)).
F. Board Findings of Fact--Voluntary Departure
1. Before Promulgation of the AA96 Final Rule
Voluntary departure is a discretionary form of relief that ``allows
certain favored [noncitizens] . . . to leave the country willingly''
either before the conclusion of removal proceedings or after being
found deportable. Dada, 554 U.S. at 8. A noncitizen must apply for
voluntary departure in the first instance before an immigration judge;
otherwise, the opportunity to seek such relief will be deemed waived.
See, e.g., Matter of J-Y-C-, 24 I&N Dec. 260, 261 n.1 (BIA 2007)
(declining to consider claim raised for the first time on appeal).
Likewise, the noncitizen must raise the issue of voluntary departure in
any appeal to the Board; otherwise, it will be deemed waived. See
Matter of Cervantes, 22 I&N Dec. 560, 561 n.1 (BIA 1999) (refusing to
address an issue not raised on appeal).
Prior to the AA96 Final Rule, the regulations described an
immigration judge's authority to grant voluntary departure but did not
articulate the Board's authority to do so. See generally 8 CFR 1240.26
(2019). The regulations stated that in limited circumstances, the Board
could reinstate an order of voluntary departure when removal
proceedings had been reopened for a purpose other than solely
requesting voluntary departure. 8 CFR 1240.26(h) (2019).\16\ The Board
could remand cases to the immigration court to consider whether a
noncitizen was eligible for voluntary departure or for the
[[Page 62249]]
immigration judge to review whether a noncitizen had received proper
voluntary departure advisals. See Matter of Gamero, 25 I&N Dec. 164,
168 (BIA 2010) (concluding that ``a remand is the appropriate remedy
when the mandatory advisals have not been provided by the Immigration
Judge'').
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\16\ Although the regulations have never explicitly stated that
the Board has the authority to grant voluntary departure, the
Eleventh Circuit has stated that the Board has the authority to
grant or deny voluntary departure in the first instance pursuant to
its general (pre-AA96) regulatory authority under 8 CFR
1003.1(d)(3)(ii) to ``review questions of law, discretion, and
judgment and all other issues in appeals from decisions of
immigration judges de novo.'' Blanc v. U.S. Att'y Gen., 996 F.3d
1274, 1278 (11th Cir. 2021) (``At the agency level, the Board of
Immigration Appeals itself can grant--or deny--voluntary
departure.'').
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2. Changes Made by the AA96 Final Rule
The AA96 Final Rule delegated explicit authority to the Board to
consider issues relating to the immigration judge's decision on
voluntary departure de novo and to issue final decisions on requests
for voluntary departure based on the record evidence. 85 FR at 81652,
81655 (8 CFR 1003.1(d)(7)(ii)(E); 1240.26(k)). The AA96 Final Rule
barred the Board from remanding a case to the immigration court solely
to consider a request for voluntary departure or for the immigration
judge's failure to provide advisals following a grant of voluntary
departure. Id. at 81652.
Specifically, the AA96 Final Rule provided that the Board could
issue an order of voluntary departure, with an alternate order of
removal, where: (1) the noncitizen requested voluntary departure before
the immigration judge; (2) the notice of appeal specified that the
noncitizen was appealing an immigration judge's denial of voluntary
departure and raised specific factual and legal challenges on this
issue; and (3) the Board determined that the noncitizen was otherwise
eligible for voluntary departure. Id. The AA96 Final Rule mandated that
if the Board did not grant the request for voluntary departure, it
would be required to deny the request. Id.
The AA96 Final Rule further provided that in instances where the
Board determined that the immigration judge incorrectly denied a
noncitizen's request for voluntary departure or failed to provide
appropriate advisals, it would be required to consider the request for
voluntary departure de novo and, if warranted, it must enter an order
granting voluntary departure with an alternate order of removal. Id. at
81655.
Furthermore, the AA96 Final Rule specified that in cases where DHS
appealed an immigration judge's decision, the Board could not grant
voluntary departure unless: (1) the noncitizen requested voluntary
departure before the immigration judge and provided or proffered
evidence to support the request; (2) the immigration judge either
granted voluntary departure or did not rule on the request; and (3) the
noncitizen otherwise met the statutory and regulatory criteria for
voluntary departure. Id.
Lastly, the AA96 Final Rule specified that the Board could impose
conditions that it deemed necessary to ensure the noncitizen's timely
departure from the United States and required the Board to provide
written advisals of such conditions and other duties associated with
voluntary departure. Id. at 81655-56. The noncitizen could accept the
grant of voluntary departure or could decline by providing written
notice within five days of receipt of the Board's decision, failing to
timely post any required bond, or otherwise failing to comply with the
Board's order. Id. at 81656.
G. Board Remand Authority--Additional Findings of Fact
1. Before Promulgation of the AA96 Final Rule
The Board does not engage in fact-finding when adjudicating appeals
of immigration judges' decisions. 8 CFR 1003.1(d)(3)(i). Accordingly,
under the pre-AA96 regulations, a party asserting that the Board could
not properly resolve an appeal without further fact-finding would file
a motion to remand. 8 CFR 1003.1(d)(3)(iv) (2019).
Generally, motions to remand are subject to the same substantive
requirements as motions to reopen, particularly where a party seeks
remand during the pendency of a direct appeal to present new evidence
or to apply for a newly available form of relief not considered by the
immigration judge. See Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.
1987) (substantive requirements of a motion to remand are the same as a
motion to reopen); Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992)
(explaining ``where a motion to remand is really in the nature of a
motion to reopen or a motion to reconsider, it must comply with the
substantive requirements for such motions''). Additionally, prior to
the AA96 Final Rule, the Board had regulatory authority to sua sponte
remand a case for further fact-finding where necessary. 8 CFR
1003.1(d)(3)(iv) (2019); see also Matter of S-H-, 23 I&N Dec. 462, 466
(BIA 2002) (exercising sua sponte remand authority).
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule restricted the Board's authority to remand for
further fact-finding or consideration of new evidence. 85 FR at 81651
(8 CFR 1003.1(d)(3)(iv)(C)-(D)). First, the AA96 Final Rule provided
that the Board may only grant motions to remand for further fact-
finding when: (1) the party seeking remand preserved the issue before
the immigration judge; (2) the party seeking remand attempted to adduce
the additional facts before the immigration judge, if it bore the
burden of proof; (3) additional fact-finding would alter the outcome of
the case; (4) additional fact-finding would not be cumulative of the
evidence already presented or contained in the record; and (5) either
the immigration judge's factual findings were clearly erroneous, the
immigration judge committed an error of law that required additional
fact-finding on remand, or remand to DHS was warranted following a de
novo review. Id. (8 CFR 1003.1(d)(3)(iv)(D)). Second, the AA96 Final
Rule prohibited the Board from sua sponte remanding a case for further
fact-finding except when necessary to determine whether the immigration
judge had jurisdiction over the case. Id. (8 CFR 1003.1(d)(3)(iv)(C)).
The AA96 Final Rule provided exceptions to these general
restrictions on remand authority under 8 CFR 1003.1(d)(6)(iii) and
(d)(7)(v)(B). 85 FR at 81651-52. Under paragraph (d)(6)(iii), DHS could
move the Board to remand the record to the immigration judge to
consider whether, in light of new information gained by identity, law
enforcement, or security investigations or examinations, any pending
applications for relief or protection should be denied. Id. If DHS
failed to report the results of such investigations or examinations,
the regulations directed the Board to remand the case to the
immigration judge for further proceedings under 8 CFR 1003.47(h). Id.
Paragraph (d)(7)(v)(B) reiterated that the Board was not limited in
remanding a case based on new evidence or information gained from
identity, law enforcement, or security investigations or examinations;
to address a question of jurisdiction over an application or
proceedings; or to address a question regarding grounds of removability
in sections 212 or 237 of the Act, 8 U.S.C. 1182, 1227. 85 FR at 81652.
H. Board Remand Authority--Errors in Fact or Law
1. Before Promulgation of the AA96 Final Rule
Prior to the AA96 Final Rule, the regulations broadly authorized
the Board to remand cases ``as . . . appropriate, without entering a
final decision on the merits of the case.'' 8 CFR 1003.1(d)(7) (2019).
However, as the AA96 Final Rule explained, the regulation granted this
authority without any further guidance or instructions regarding when
the Board
[[Page 62250]]
could order a remand instead of issuing a final order. 85 FR at 81589.
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule restricted the Board's authority to remand for
errors in fact or law or consideration of material changes in fact or
law. Id. at 81652 (8 CFR 1003.1(d)(7)(ii)). Specifically, the AA96
Final Rule provided that the Board could not remand a case without
first identifying the standard of review that it had applied, as well
as the specific error or errors made by the immigration judge. Id. The
Board also could not remand a case based on a ``totality of the
circumstances'' standard of review or based on a legal argument that
was not presented in 8 CFR 1003.1(d)(7)(ii)(D) through (E), with
certain exceptions. Id.
Additionally, the AA96 Final Rule barred the Board from remanding a
case sua sponte, unless the remand solely involved a question of
jurisdiction. Id. As discussed above, the Board also could not remand a
case solely for consideration of voluntary departure or as the result
of the failure to give required advisals for a grant of voluntary
departure. Id. Moreover, the AA96 Final Rule generally barred remanding
based on any legal arguments that did not pertain to an ``issue of
jurisdiction over an application or the proceedings,'' or to ``material
change[s] in fact or law'' underlying a removability ground or grounds
that occurred after the date of the immigration judge's decision and
substantial evidence indicated that the material change would vitiate
all grounds of removability. Id.
I. Background Check
1. Before Promulgation of the AA96 Final Rule
In 2005, the Department implemented regulations covering background
and security investigations in proceedings before immigration judges
and the Board. See Background and Security Investigations in
Proceedings Before Immigration Judges and the Board of Immigration
Appeals, 70 FR 4743 (Jan. 31, 2005) (``Background Check Rule'') (issued
as interim final rule). The Background Check Rule amended Department
regulations to ensure that the necessary identity, law enforcement, and
security investigations (hereinafter ``background checks'') are
promptly initiated and have been completed by DHS prior to the granting
of certain forms of relief or protection from removal. 8 CFR
1003.1(d)(6) (2019).
Under the framework implemented by the Background Check Rule,
applicants for relief or protection from removal in proceedings before
EOIR have an obligation to comply with applicable requirements to
provide biometrics and other biographical information, and failure to
comply with such requirements within the time allowed constitutes
abandonment of the application, with certain exceptions. Id.; 8 CFR
1003.47(c), (d).
Prior to the AA96 Final Rule, the Board could address incomplete or
outdated background checks by either remanding the case to the
immigration judge or placing adjudication of the case on hold until
background checks were completed or updated. 8 CFR 1003.1(d)(6)(ii)(A),
(B) (2019). However, the Board was not required to remand or hold a
case if dismissing the appeal or when denying the relief sought. 8 CFR
1003.1(d)(6)(iv) (2019).
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule limited the Board's authority to remand a
decision with incomplete or outdated background checks. 85 FR at 81651
(8 CFR 1003.1(d)(6)(ii)-(iii)). Under the new framework, the Board was
only permitted to place such cases on hold and to notify the parties
about the hold, including certain advisals about the consequences for
failure to comply with background check requirements. Id.
Further, the AA96 Final Rule required the Board to deem an
application for relief from removal abandoned if a noncitizen failed to
comply with background check procedures within 90 days of DHS's
instruction notice under 8 CFR 1003.1(d)(6)(ii), unless the noncitizen
demonstrated good cause prior to the end of the 90-day period, or if
the noncitizen was detained. Id. at 81651-52 (8 CFR 1003.1(d)(6)(iii)).
If the noncitizen demonstrated good cause within the 90-day period, the
Board could give the noncitizen one extension of up to 30 additional
days to comply. Id. at 81652. The AA96 Final Rule further required that
the Board adjudicate the remainder of the appeal within 30 days after
an application was deemed abandoned and enter an order of removal or a
grant of voluntary departure, as appropriate. Id.
Regarding motions to remand, the AA96 Final Rule permitted DHS to
file a motion to remand if it obtained relevant information when
completing or updating background checks so that the immigration judge
could consider whether, in light of the new information, any pending
applications for relief or protection should be denied. Id.
Additionally, the AA96 Final Rule instructed the Board to remand the
case to the immigration judge if DHS failed to report the results of
background checks within 180 days of the Board's notice. Id.
J. Adjudication Timelines
1. Before Promulgation of the AA96 Final Rule
Prior to the AA96 Final Rule, the regulations provided for a case
management system that set forth, in relevant part, procedures for
initial screening for cases appealed to the Board and general guidance
regarding a decision's timeliness. 8 CFR 1003.1(e)(1), (8) (2019).
Regarding initial screening, the regulations established that cases
would be referred to a screening panel for review and that appeals
subject to summary dismissal must be ``promptly dismissed.'' 8 CFR
1003.1(e)(1) (2019). However, the Board did not have a concrete
timeline for such review or dismissal. Id. As for timeliness, the
regulations provided that in all cases, other than those subject to
summary dismissal, the Appellate Immigration Judge or panel should
issue a decision on the merits ``as soon as practicable,'' prioritizing
cases involving detained noncitizens. 8 CFR 1003.1(e)(8) (2019). The
regulations further set forth a 90-day decision deadline for cases
adjudicated by a single Appellate Immigration Judge, beginning upon
completion of the record on appeal, and a 180-day deadline for cases
adjudicated by a three-member panel, beginning once an appeal was
assigned to the three-member panel. 8 CFR 1003.1(e)(8)(i) (2019).
However, the Board Chairman \17\ could extend those deadlines in
exigent circumstances. 8 CFR 1003.1(e)(8)(ii) (2019). The Chairman
could also suspend the regulatory deadlines and indefinitely hold a
case or group of cases in anticipation of an impending decision by the
United States Supreme Court, a United States Court of Appeals, the
Board sitting en banc, or impending Department regulations. 8 CFR
1003.1(e)(8)(iii) (2019). Moreover, the Chairman was required to notify
the EOIR Director and the Attorney General if an Appellate Immigration
Judge consistently failed to meet the assigned deadlines or adhere to
the case management system, as well as to prepare an annual report
assessing the timeliness of the disposition of cases by
[[Page 62251]]
each Appellate Immigration Judge. 8 CFR 1003.1(e)(8)(v) (2019).
---------------------------------------------------------------------------
\17\ The Board Chairman, or the Chairman, is also known as the
``Chief Appellate Immigration Judge.'' See Organization of the
Executive Office for Immigration Review, 85 FR 69465, 69466 (Nov. 3,
2020) (final rule).
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2. Changes Made by the AA96 Final Rule
The AA96 Final Rule imposed numerous internal deadlines for
adjudicating Board appeals. 85 FR at 81652-53 (8 CFR 1003.1(e)). For
example, the rule required the Board screening panel to review cases
within 14 days of the filing of a Notice of Appeal, the filing of a
motion, or the receipt of a remand from a federal court. Id. (8 CFR
1003.1(e)(1)). Following an initial review, the Board had to adjudicate
requests for summary dismissal no later than 30 days after the filing
of the Notice of Appeal, subject to limited exceptions, and
interlocutory appeals within 30 days of the filing of the appeal,
unless referred to a three-member panel. Id. After the screening panel
completed its review, the Board would then have seven days to order a
transcript and would be required to set a briefing schedule within
seven days after the transcript was provided, subject to limited
exceptions. Id. at 81653 (8 CFR 1003.1(e)(8)).
The AA96 Final Rule also required that the Board assign each case
to a single Appellate Immigration Judge within seven days of the
completion of the record on appeal. Id. The single Appellate
Immigration Judge would then determine whether to adjudicate the appeal
independently or to designate the case for decision by a three-member
panel. Id.
The AA96 Final Rule did not alter the completion deadlines of 90
days for a single-member decision and 180 days for a three-member
decision. 85 FR at 81653 (8 CFR 1003.1(e)(8)(i)). However, the AA96
Final Rule changed the 180-day time period for completion of a three-
member decision to begin earlier, upon completion of the record, rather
than beginning the clock after the case was assigned to a three-member
panel, and added that the Chairman's determination as to whether
exigent circumstances warranted extension of those deadlines would be
subject to concurrence by the EOIR Director. Id.
The AA96 Final Rule also limited the ``rare circumstances'' under
which the Chairman could place cases on hold to only those groups of
cases that would be substantially impacted by an impending decision by
the United States Supreme Court or the Board sitting en banc and
removed the ability to hold cases to await an impending decision by a
United States Court of Appeals or impending Department regulations. 8
CFR 1003.1(e)(8)(iii). The AA96 Final Rule also required the
concurrence of the EOIR Director to hold cases under this provision.
Id. at 81653 (8 CFR 1003.1(e)(8)(iii)). The AA96 Final Rule limited
such holds to a maximum of 120 days. Id. The AA96 Final Rule also
imposed additional reporting requirements on the Chairman for
transcription processes and cases involving extensions, holds, or other
delays. Id. at 81653 (8 CFR 1003.1(e)(8), (8)(v)).
Furthermore, the AA96 Final Rule required that all cases that
remained pending for more than 335 days after receipt of a filed appeal
or motion, or remand from a federal court, would be referred to the
EOIR Director for a decision unless subject to an extension, hold,
deferral, or remand. Id. at 81653 (8 CFR 1003.1(e)(8)(v)). The Director
would then exercise delegated authority from the Attorney General
identical to that of the Board, including the authority to issue
precedential decisions or refer cases to the Attorney General. Id.
However, the AA96 Final Rule limited further delegation of such
authority from the EOIR Director to other individuals. Id.
K. Director's Authority To Issue Decisions
1. Before Promulgation of the AA96 Final Rule
Until 2019, the EOIR Director had no authority to adjudicate cases
arising under the Act, including appeals before the Board. See 8 CFR
1003.0(c) (2018). Instead, the regulations simply provided that for
cases not completed within the relevant time limits and not subject to
any exceptions, the Chairman should self-refer them or refer them to
the Vice Chairman for completion within 14 days. Alternatively, the
Chairman could refer them to the Attorney General. 8 CFR
1003.1(e)(8)(ii) (2018).
In 2019, the Department established a narrow discretionary
authority for the EOIR Director to decide appeals in certain
circumstances. See Organization of the Executive Office for Immigration
Review, 84 FR 44537, 44539-40 (Aug. 26, 2019) (issued as an interim
final rule), 85 FR 69465, 69466 (Nov. 3, 2020) (final rule); see also 8
CFR 1003.1(e)(8)(ii) (authorizing the EOIR Director to decide an appeal
that exceeded the 90- and 180-day regulatory time limits unless the
Chairman self-referred the case or referred the case to the Vice
Chairman); 8 CFR 1003.0(c) (providing that the EOIR Director may not
adjudicate cases arising under the Act ``[e]xcept as provided by
statute, regulation, or delegation of authority from the Attorney
General, or when acting as a designee of the Attorney General''). The
Department subsequently codified, at the final rule stage, language
stating that the EOIR Director's authority to decide appeals in certain
circumstances under 8 CFR 1003.1(e)(8)(ii) could not be further
delegated. 85 FR at 69480-81; 8 CFR 1003.0(b)(2)(ii) (``The Director
may not delegate the authority assigned to the Director in [8 CFR]
1003.1(e)(8)(ii) . . .'').
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule authorized the EOIR Director to decide cases in
two distinct circumstances. First, the rule directed the Chairman to
refer any case still pending 335 days after an appeal or motion was
filed or a remand was received to the EOIR Director for adjudication.
85 FR at 81653 (8 CFR 1003.1(e)(8)(v)). Under the AA96 Final Rule, the
following categories of cases were not subject to the EOIR Director's
adjudication authority: (1) cases subject to a hold under 8 CFR
1003.1(d)(6)(ii); (2) cases subject to an extension under 8 CFR
1003.1(e)(8)(ii); (3) cases subject to a hold under 8 CFR
1003.1(e)(8)(iii); (4) cases whose adjudication had been deferred by
the EOIR Director pursuant to 8 CFR 1003.0(b)(1)(ii); (5) cases that
were remanded by the EOIR Director under 8 CFR 1003.1(k) in which 335
days had elapsed following remand; and (6) cases that were
administratively closed prior to 335 days after the appeal was filed
pursuant to a regulation promulgated by the Department or a previous
judicially approved settlement that authorized such an action but for
which the administrative closure caused the pendency of the appeal to
exceed 335 days. Id. (8 CFR 1003.1(e)(8)(v)(A)-(F)).
Second, the rule established a procedure for an immigration judge
to certify a Board decision to the EOIR Director when the immigration
judge believed the Board made one or more enumerated errors. Id. (8 CFR
1003.1(k)). This authority is discussed in further detail in the
section on the ``Quality Assurance Certification'' provision.
For cases referred to the EOIR Director, the EOIR Director would
exercise delegated authority from the Attorney General identical to
that of the Board, including the authority to issue precedential
decisions and the authority to refer cases to the Attorney General for
review. Id. (8 CFR 1003.1(e)(8)(v)). The AA96 Final Rule prohibited the
EOIR Director from further delegating this authority. Id. Of note, the
AA96 Final Rule did not amend the existing regulatory provision
reiterating that 8
[[Page 62252]]
CFR 1003.1(e)(8) did not confer substantive or procedural rights
enforceable before any immigration judge, the Board, or any court of
law or equity, 8 CFR 1003.1(e)(8)(vi), which, under the AA96 Final
Rule, included case referrals to the EOIR Director.
L. Quality Assurance Certification
1. Before Promulgation of the AA96 Final Rule
Prior to the AA96 Final Rule, various options were available to
ensure quality case adjudications. If a party were dissatisfied with a
Board decision, the party could file a motion to reconsider. 8 CFR
1003.2(a). Alternatively, the noncitizen could file a petition for
review of a final order of removal with a federal court of appeals. INA
242(a)(1), 8 U.S.C. 1252(a)(1). In addition, DHS could seek to certify
a Board decision to the Attorney General for review, 8 CFR
1003.1(h)(1)(iii), or the Attorney General could self-certify a Board
decision for review, 8 CFR 1003.1(h)(1)(i). The Board could also
reconsider or reopen a decision by exercising its sua sponte authority.
8 CFR 1003.2(a) (2019) (providing that ``[t]he Board may at any time
reopen or reconsider on its own motion'' any Board decision). The
process by which an immigration judge could certify a decision to the
EOIR Director did not exist prior to the AA96 Final Rule. See generally
8 CFR 1003.23(b) (2019).
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule did not change some of the existing options to
ensure quality case adjudications discussed above, including a party's
ability to file a motion to reconsider with the Board, the ability to
file a petition for review of a final order of removal with a federal
court of appeals, and the case referral options outlined in 8 CFR
1003.1(h).\18\ In addition to these options, the AA96 Final Rule
implemented a quality assurance certification, wherein the immigration
judge could forward a case by certification to the EOIR Director for
further review if the Board decision: (1) contained a typographical or
clerical error that affected the outcome of the case; (2) was clearly
contrary to an immigration law or statute, applicable regulation, or
published binding precedent; (3) was ``vague, ambiguous, internally
inconsistent, or otherwise did not resolve the basis for the appeal'';
or (4) did not consider a material factor pertinent to the issues
before the immigration judge. 85 FR at 81653-54 (8 CFR 1003.1(k)(1)).
To certify a decision, the immigration judge was required to issue an
order of certification within 30 days of the Board decision, or within
15 days if the noncitizen was detained, specifying the regulatory basis
for the certification, summarizing the underlying factual basis, and
providing notice of the certification to both parties. Id. at 81653 (8
CFR 1003.1(k)(2)).
---------------------------------------------------------------------------
\18\ The AA96 Final Rule limited the Board's sua sponte
authority to reopen or reconsider a decision as discussed in Section
III.D of this preamble.
---------------------------------------------------------------------------
For such cases, the EOIR Director would exercise delegated
authority from the Attorney General identical to that of the Board. Id.
(8 CFR 1003.1(k)(3)). The Director could dismiss the certification and
return the case to the immigration judge or remand the case back to the
Board. Id. The Director could not, however, issue an order of removal,
grant a request for voluntary departure, or grant or deny an
application for relief or protection from removal. Id. The AA96 Final
Rule further barred the quality assurance certification process from
being used solely to express general disapproval or disagreement with
the outcome of a Board decision. Id. at 81654 (8 CFR 1003.1(k)(4)).
M. Forwarding of Record on Appeal
1. Before Promulgation of the AA96 Final Rule
The pre-AA96 regulation provided that, when a transcript of an oral
decision was required, an immigration judge would review the transcript
and approve the decision within 14 days of receipt (or within seven
days following an immigration judge's return from leave or a detail). 8
CFR 1003.5(a) (2019). Further, the regulation required the transcript
to be forwarded to the Board upon its request or order. Id. The
regulation instructed the Chairman and Chief Immigration Judge to
determine the most effective and expeditious way to transcribe
proceedings before immigration judges, including reducing the time
necessary to produce transcripts and improving the quality of such
transcripts. Id.
2. Changes Made by the AA96 Final Rule
The AA96 Final Rule amended 8 CFR 1003.5(a) so that immigration
judges would not need to forward the record to the Board if the Board
already had electronic access to the record. 85 FR at 81654 (8 CFR
1003.5(a)). The AA96 Final Rule also removed the requirement that
immigration judges review transcripts of oral decisions, which included
review of, potential revisions to, and approval of the transcript.
Compare 8 CFR 1003.5(a) (2019) (``Where transcription of an oral
decision is required, the immigration judge shall review the transcript
and approve the decision . . .''), with 85 FR at 81654 (8 CFR
1003.5(a)) (omitting that requirement).
The AA96 Final Rule did not alter the requirement that the EOIR
Director, in consultation with the Chairman and Chief Immigration
Judge, determine the most effective and expeditious way to transcribe
proceedings. 85 FR at 81654 (8 CFR 1003.5(a)). However, it directed the
Chairman and Chief Immigration Judge to ``ensure,'' id. (8 CFR
1003.5(a)), rather than simply ``improve,'' 8 CFR 1003.5(a) (2019), the
quality of such transcripts.
The AA96 Final Rule also amended 8 CFR 1003.5(b) by removing
language describing procedures regarding appeals from DHS decisions
that are within the BIA's appellate jurisdiction and stated that those
procedures were not applicable to EOIR adjudicators. 85 FR at 81654 (8
CFR 1003.5(b)).
N. Centro Legal de la Raza Litigation
On March 10, 2021, the United States District Court for the
Northern District of California granted a nationwide preliminary
injunction barring the Department from implementing or enforcing the
AA96 Final Rule or any portion thereof and staying the effectiveness of
the rule under 5 U.S.C. 705. Centro Legal de la Raza v. Exec. Off. for
Immigr. Rev., 524 F. Supp. 3d 919 (N.D. Cal. 2021). The preliminary
injunction and stay of the rule's effectiveness remain in effect.\19\
In granting the preliminary injunction and stay under 5 U.S.C. 705, the
court determined that plaintiffs were likely to ultimately succeed on
several substantive and procedural challenges raised with respect to
the AA96 Final Rule. Id. at 954-76.\20\
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\19\ In addition to this preliminary injunction, the United
States District Court of the District of Columbia granted a stay of
the implementation of the AA96 Final Rule on April 3, 2021,
determining that the 30-day comment period associated with the
rulemaking was procedurally insufficient. See Catholic Legal
Immigration Network, Inc. v. Exec. Off. for Immigr. Rev., No. 21-
00094, 2021 WL 3609986 (D.D.C. Apr. 4, 2021).
\20\ Procedurally, the court stated that plaintiffs were likely
to succeed on their claim that the Department's 30-day notice-and-
comment period was insufficient under the Administrative Procedure
Act (``APA'') due to the rule's complexity, the COVID-19 pandemic,
and other concerns. Centro Legal de la Raza, 524 F. Supp. 3d at 954-
58. The court also raised ``serious concerns'' with the Department's
``staggered rulemaking'' approach, explaining that because
``numerous intertwined proposed rules were promulgated at different
times, including after the close of the comment period in this case,
the true impact of the [AA96 Final Rule] was obscured and the public
was deprived of a meaningful opportunity to comment.'' Id. at 958,
962.
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[[Page 62253]]
1. ``Arbitrary and Capricious'' Challenges
Substantively, the court determined that the plaintiffs
demonstrated a likelihood of success on the merits of their arguments
that the AA96 Final Rule's changes to the briefing schedule for BIA
appeals, administrative closure, and sua sponte reopening and
reconsideration authority were arbitrary and capricious. Id. at 963-71.
The court also made a generally applicable finding that EOIR's failure
to adequately consider the Booz Allen Hamilton report that EOIR
``specifically commissioned to analyze the very concerns that
purportedly animate'' the AA96 Final Rule raised significant APA
concerns. Id. at 963.
i. Changes to BIA Briefing Schedule
The court found that there was a substantial likelihood that the
AA96 Final Rule's changes to the briefing schedule for BIA appeals are
arbitrary and capricious because the Department failed to adequately
consider the impact on pro se individuals and how the changes would
operate, in conjunction with existing BIA practices and procedures, to
create difficulties for noncitizens and their attorneys in meeting
briefing deadlines. Id. at 964-66. The court was not persuaded by the
Department's position that noncitizens need not wait until the BIA
briefing schedule had been issued to seek representation for an appeal
because, the court stated, ``the vast majority of individuals appearing
before immigration courts are pro se,'' \21\ and many face language
barriers. Id. at 965. Additionally, the court noted that, ``of critical
importance[,]'' immigration judges often issue oral decisions;
accordingly, noncitizens may not have the documents necessary to seek
representation until after the Board issues and mails the briefing
schedule, transcript, and a copy of the immigration judge's order. Id.
The court stated that the Department failed to address how challenges
to the compressed briefing schedule might be exacerbated by the Board's
mail-based system, failure to follow the ``mailbox rule,'' and
unpredictable briefing schedules.\22\ Id. The court also found the
Department's reliance on future implementation of an electronic filing
system unpersuasive. Id. The court further stated that the Department
failed to consider the challenges that the COVID-19 pandemic may
present to compliance with the compressed briefing schedule. Id. at
966.
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\21\ EOIR data reports an 86% representation rate for ``all
completed appeals,'' a 90% representation rate for ``all pending
appeals,'' and a 45% representation rate for ``overall pending''
adjudications. See EOIR, Adjudication Statistics: Current
Representation Rates, <a href="https://www.justice.gov/eoir/page/file/1062991/download">https://www.justice.gov/eoir/page/file/1062991/download</a> (data generated Apr. 21, 2023).
\22\ The court noted that the ``U.S. Postal service is
experiencing historic backlogs'' due to the COVID-19 pandemic.
Centro Legal de la Raza, 524 F. Supp. 3d at 966.
---------------------------------------------------------------------------
ii. Administrative Closure
The court also determined that plaintiffs were likely to succeed on
their argument that the AA96 Final Rule's restrictions on
administrative closure are arbitrary and capricious. First, the court
found that, although the Department cited efficiency reasons for
promulgating the rule, it failed to meaningfully address the existence
of ``extensive contrary evidence showing that administrative closure
enhances efficiency.'' Id. at 967. The court also noted that EOIR's
consultants had previously recommended that EOIR work with DHS to
explore developing policies regarding administrative closure, and yet
EOIR did not discuss or consider that recommendation in its rulemaking.
Id. The court further stated that the Department improperly dismissed
and minimized commenter concerns that eliminating administrative
closure could lead to the removal of noncitizens with meritorious
claims for relief or protection, including removal in violation of the
United States' non-refoulement obligations under international law. Id.
at 968. The court explained that, although the Department cited the
availability of administrative closure in some circumstances, it did
not adequately address the issue that administrative closure would no
longer be available for ``the vast majority of noncitizens in removal
proceedings, including people for whom Congress has specifically
crafted humanitarian relief.'' Id.
Additionally, the court determined that the Department did not
adequately engage with commenter concerns that the AA96 Final Rule
conflicted with section 212(a)(9)(B)(v) of the Act, 8 U.S.C.
1182(a)(9)(B)(v), as DHS has interpreted it. Id.; see also 8 CFR
212.7(e)(4)(iii) (rendering an individual in removal proceedings
ineligible for an unlawful presence hardship waiver unless the
proceedings are administratively closed); see also Garcia-DeLeon, 999
F.3d at 993 (``We conclude that immigration judges and the BIA retain
the authority to grant administrative closure so that noncitizens may
apply for a provisional unlawful presence waiver.'').
The court noted that, although DHS had previously determined that
individuals who have been granted voluntary departure would not be
eligible for such provisional waivers, see Expansion of Provisional
Unlawful Presence Waivers of Inadmissibility, 81 FR 50244, 50256 (July
29, 2016), EOIR nevertheless asserted in the AA96 Final Rule that
eliminating general authority to administratively close cases would
have no bearing on a noncitizen's ``ability to obtain an order of
voluntary departure and then a provisional waiver before departing to
receive the final waiver abroad.'' 85 FR at 81601. The court determined
that the Department did not provide a ``reasoned basis'' for this
position. Centro Legal de la Raza, 524 F. Supp. 3d at 969.
iii. Sua Sponte Reopening and Reconsideration Authority
The court also determined that the Department's decision to
eliminate adjudicators' sua sponte reopening and reconsideration
authority was likely arbitrary and capricious. The court expressed that
it was ``extremely troubled'' by the Department's contention that,
because there is no right to sua sponte reopening, the Department was
not required to assess commenter concerns about any reliance interests
or weigh such interests against competing policy concerns. Id. at 970;
see also Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.
Ct. 1891, 1913 (2020) (``When an agency changes course . . . it must be
cognizant that longstanding policies may have engendered serious
reliance interests that must be taken into account.'' (internal
quotation marks omitted)).
The court similarly expressed concerns with the Department's
justifications for eliminating sua sponte reopening and reconsideration
in light of ``the reality that its elimination will foreclose the only
avenue of relief for some noncitizens who would otherwise be eligible
for relief from removal.'' Centro Legal de la Raza, 524 F. Supp. 3d at
971. For example, the Department asserted that the rule would promote
fairness by withdrawing an authority that may be subject to
inconsistent and potentially abusive usage and could undermine finality
in proceedings. Id. However, the court found that the Department failed
to provide examples of inconsistent application or abuse and did not
adequately explain why ``it could not articulate or clarify a
meaningful standard to govern'' when `` `exceptional situations' would
permit sua sponte reopening or reconsideration.'' Id.; see also Motor
Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 48-49 (1983) (``[A]n agency must cogently
[[Page 62254]]
explain why it has exercised its discretion in a given manner.'').
2. Regulatory Flexibility Act Challenge
The court determined that the plaintiffs raised serious questions
that the AA96 Final Rule violated the Regulatory Flexibility Act
(``RFA''), which requires federal agencies to analyze the impact of
proposed rules on small entities. Centro Legal de la Raza, 524 F. Supp.
3d at 971-74; see also 5 U.S.C. 601-12. Specifically, the court
determined that the plaintiff, Centro Legal de la Raza, was likely a
small entity under the RFA and that the AA96 Final Rule would apply to
it because it would be required to comply with the changes implemented
by the rule. Centro Legal de la Raza, 524 F. Supp. 3d at 973. Further,
the court expressed doubt that the AA96 Final Rule's ``cursory''
statement that the rule would not have a substantial impact on small
entities was a sufficient factual basis to avoid engaging in an RFA
analysis, particularly in light of the scope of the AA96 Final Rule and
the numerous comments from organizations claiming that the AA96 Final
Rule would economically impact them. Id. at 974.
3. Delegation of Rulemaking Authority to the EOIR Director
Lastly, the court determined that the plaintiffs had raised serious
questions regarding whether the AA96 Final Rule's delegation of
rulemaking authority to the EOIR Director, based on the specific facts
of that case, violated the APA. Centro Legal de la Raza, 524 F. Supp.
3d at 976. The court was troubled by the manner by which the delegation
occurred. Id. Specifically, the court stated that while the Attorney
General signed the AA96 NPRM, the Attorney General did not delegate
rulemaking authority until after the close of the NPRM's comment period
and did so through a non-public order. Id. The court also expressed
particular concern that the AA96 Final Rule, signed by the EOIR
Director pursuant to the delegated rulemaking authority, significantly
expanded the EOIR Director's authority to adjudicate Board appeals. Id.
The court stated that although the AA96 NPRM--as signed by the Attorney
General--proposed expanding the EOIR Director's authority in this
manner, the NPRM did not disclose that the EOIR Director would issue
the final rule and, thus, would ultimately be in charge of considering
the public's comments about expanding the EOIR Director's own
authority. Id.
IV. Description of Proposed Regulatory Changes
The Department has carefully reconsidered the AA96 Final Rule, the
comments received on the AA96 Proposed Rule, the issues identified in
the Centro Legal de la Raza decision, and other experience gained since
that decision. The Department now proposes to restore the longstanding
procedures in place prior to the AA96 Final Rule, subject to several
changes. For the reasons described below, the Department believes that
these amendments will promote the efficient and expeditious
adjudication of cases, afford immigration judges and the BIA
flexibility to efficiently allocate their limited resources, and
protect due process for parties before immigration judges and the
Board.
A. Briefing Schedule Changes
The Department proposes to rescind changes that the AA96 Final Rule
made to briefing schedules before the Board.
Specifically, the Department proposes to restore regulatory
language, in effect before the promulgation of the AA96 Final Rule,
that would re-establish longstanding consecutive briefing schedules for
non-detained noncitizens and simultaneous briefing schedules for
detained noncitizens. 8 CFR 1003.3(c)(1) (proposed). The proposed
language states that those subject to a simultaneous briefing schedule
would have 21 days to submit simultaneous briefs unless the Board
specifies a shorter period. Id. The proposed language also states that
in appeals involving simultaneous briefing, the Board may permit
parties to file reply briefs within 21 days of the deadline for the
initial briefs. Id.
Those subject to a consecutive briefing schedule would again have
21 days to file initial briefs, unless the Board specifies a shorter
period. Id. Parties would have the same amount of time to file reply
briefs as was provided for filing the initial brief, including any
extensions.\23\ Id. The Board would also again be authorized to grant
one or more extensions for filing briefs or reply briefs for up to 90
days for good cause shown. Id. The Board could also, in its discretion,
request supplemental briefings from parties after the briefing deadline
has expired. Id. The Board would remain authorized to consider untimely
filed briefs. Id.
---------------------------------------------------------------------------
\23\ In the ECAS Rule, the finalized regulatory language
reverted 8 CFR 1003.3(c)(2) (Appeal from decision of a DHS officer)
to pre-AA96 standards. See ECAS Rule, 86 FR at 70721. Specifically,
the ECAS Rule removed the maximum 14-day period for the filing of a
single permitted reply brief, the 14-day limitation on extensions,
and procedures for filing supplemental briefs implemented by the
AA96 Final Rule. Id. The ECAS Rule retained the AA96 Final Rule's
technical edits to replace ``Service'' with ``DHS'' where
appropriate, id., and this NPRM proposes additional minor, technical
changes, as discussed at Section IV.O of this preamble.
---------------------------------------------------------------------------
As stated in the AA96 Final Rule, there is ``no entitlement'' to a
briefing schedule under the Act. See 85 FR at 81636. Indeed, the Act
does not enumerate the procedures that apply to the Board's
adjudication of appeals. Nevertheless, a noncitizen, with certain
limited exceptions, is entitled to seek appellate review before the
Board of an immigration judge's decision and, in some cases, a decision
of a DHS officer.\24\ 8 CFR 1003.3(a)(1)-(2). As part of that review,
the noncitizen is entitled to certain rights under the Act, including
the right to have legal representation before the Board (at no expense
to the government). INA 292, 8 U.S.C. 1362. The Department believes
that truncating the briefing schedule that had been in place for over
20 years, see Board of Immigration Appeals: Procedural Reforms to
Improve Case Management, 67 FR 54878, 54895 (Aug. 26, 2002) (discussing
changes to 8 CFR 3.3(c)), could impact a noncitizen's ability to
adequately prepare their case for appeal or secure legal representation
to do so, and create undue confusion for pro se noncitizens and
practitioners appearing before EOIR. Concerns about adequate
preparation time are particularly relevant given the possibility of
unique and unaccounted-for future issues, similar to the COVID-19
pandemic, which may present new obstacles to seeking and securing
representation, as well as preparing and submitting briefs. See Centro
Legal de la Raza, 524 F. Supp. 3d at 965-66 (``[T]he agency completely
disregarded the fact that the challenges of briefing on a compressed
timetable are compounded by the BIA's mail-based system, failure to
follow the `mailbox rule,' and unpredictable briefing schedules. . .
Moreover, the agency entirely dismissed the impact of imposing the
briefing schedule changes during the COVID-19 pandemic, a concern
raised by numerous commenters.'').
---------------------------------------------------------------------------
\24\ Examples of DHS officer decisions subject to appellate
review before the Board include denials of waivers under INA
212(d)(3), 8 U.S.C. 1182(d)(3), and denials of visa petitions made
on a Form I-130.
---------------------------------------------------------------------------
The Department notes that it has now implemented electronic filing
procedures for registered attorneys through the EOIR Courts & Appeals
System, see ECAS Rule, 86 FR 70708, which may mitigate some concerns
about mail service and its potential effect on briefing schedule timing
[[Page 62255]]
because parties will be able to view and download documents for cases
with electronic records of proceeding. However, the Department has not
yet fully implemented electronic filing and case access for pro se
noncitizens, see 86 FR at 70709-10, and therefore believes that the
current availability of electronic filing in most, but not all,
circumstances is insufficient to address concerns about the AA96 Final
Rule's truncated briefing schedules. Indeed, briefing schedules that
allow adjudicators the flexibility to establish deadlines as
appropriate for a particular case, within given parameters, are a
fixture of legal practice. For example, in the federal courts, Rule 31
of the Federal Rules of Appellate Procedure establishes a ``good
cause'' exception to its specified time frame. Fed. R. App. P. 31(a)(1)
(explaining that ``a reply brief must be filed at least 7 days before
argument, unless the court, for good cause, allows a later filing'').
Similarly, Rule 12 of the Federal Rules of Civil Procedure also builds
flexibility into its established timeframes. Fed. R. Civ. P.
12(a)(1)(C) (``A party must serve a reply to an answer within 21 days
after being served with an order to reply, unless the order specifies a
different time.'').
Upon reconsideration, the Department believes that the Board should
have the discretion to manage briefing schedules and extensions. An
inflexible rule that requires all briefs to be filed within 35 days
would be unable to accommodate the continually changing landscape that
may affect parties' ability to seek and retain counsel, as well as to
prepare and submit briefs within a specified period of time. To the
extent that shorter briefing schedules or, conversely, extensions for
both initial and reply briefs, might be appropriate given the
particular facts and circumstances of an individual case, the Board is
optimally situated to make such determinations on a case-by-case basis
to ensure that briefing schedules do not impede access to the appellate
process and the right to counsel. Cf. Meza Morales, 973 F.3d at 665
(```[T]imeliness' is not a hard and fast deadline; some cases are more
complex and simply take longer to resolve. Thus, not all mechanisms
that lengthen the proceedings of a case prevent `timely'
resolution.''). Under the proposed rule, the Board would again have the
discretion to specify shorter briefing schedules as it deems
appropriate.
Numerous organizations and commenters on the AA96 Final Rule,
including those who administer the Board Pro Bono Program, claimed that
the policies set forth in the AA96 Final Rule would have (and in some
cases already have had) an impact on their ability to provide appellate
representation. See Complaint, CLINIC v. EOIR, No. 21-CV-094 (D.D.C.
Jan. 11, 2021); Plaintiffs' Motion for a Preliminary Injunction, Centro
Legal de la Raza v. EOIR, No. 21-CV-00463 (N.D. Cal. Jan. 22, 2021).
This proposed rule is intended to remove the possibility that reducing
the total amount of time that a noncitizen has to file an appeal brief
would impede access to the appellate process and the fair and efficient
adjudication of appeals for at least some pro se individuals and those
seeking representation.
The Department also proposes to amend the briefing schedule, with
respect to motions to reopen or reconsider before the BIA, to extend
the deadline to submit a reply brief from 13 days to 21 days. 8 CFR
1003.2(g)(3) (proposed). The Department currently sees no reason to
distinguish between applicable deadlines for reply briefs for appeals
and for motions to reopen or reconsider.
B. Administrative Closure Authority--Immigration Judges and the Board
The Department proposes to remove the AA96 Final Rule's language
that would, if effectuated, limit an EOIR adjudicator's authority to
administratively close cases. Instead, this NPRM proposes to explicitly
state that EOIR adjudicators have the general authority to
administratively close, and to recalendar,\25\ individual cases
pursuant to a party's motion. The proposed rule would also set forth
factors that adjudicators should consider, as the circumstances of the
case warrant, in adjudicating such motions. The Department believes
that the proposed changes will improve the efficiency and fairness of
EOIR proceedings.
---------------------------------------------------------------------------
\25\ The Department notes that the term ``reinstate'' has been
used interchangeably with ``recalendar'' before the Board. See,
e.g., Matter of Avetisyan, 25 I&N Dec. at 692. However, consistent
with longstanding practice and to avoid confusion, the Department is
using ``recalendar'' for both the immigration courts and the Board
in this regulation.
---------------------------------------------------------------------------
As described above, there is a long history of EOIR adjudicators
utilizing administrative closure as a helpful tool for managing dockets
at both the immigration courts and the Board. See Garcia-DeLeon, 999
F.3d at 989 (``For at least three decades, immigration judges and the
BIA regularly administratively closed cases.''); Matter of Avetisyan,
25 I&N Dec. at 690 (``Administrative closure is a procedural tool
created for the convenience of the Immigration Courts and the
Board.''). Indeed, the Attorney General acknowledged this longstanding
practice in overruling Matter of Castro-Tum. See Matter of Cruz-Valdez,
28 I&N Dec. at 329 (``Because Castro-Tum departed from long-standing
practice, it is appropriate to overrule that opinion in its entirety .
. .''). In Matter of Cruz-Valdez, the Attorney General restored
administrative closure authority, specifically directing immigration
judges and the Board to apply the standard for administrative closure
set forth in Matter of Avetisyan and Matter of W-Y-U- while the
Department reconsiders the AA96 Final Rule. Id.
Additionally, circuit court case law undercuts the AA96 Final
Rule's assertion that administrative closure is unsupported by the law
and that Matter of Avetisyan was wrongly decided. See Romero, 937 F.3d
at 294-95 (holding that the regulations ``unambiguously confer upon
[immigration judges] and the [Board] the general authority to
administratively close cases''); Meza Morales, 973 F.3d at 667
(concluding that Matter of Castro-Tum was contrary to the unambiguous
meaning of the regulations and that immigration judges and the Board
are ``not precluded from administratively closing cases when
appropriate''); Arcos Sanchez, 997 F.3d at 122 (holding that ``the
plain language establishes that general administrative closure
authority is unambiguously authorized by these regulations''); see also
Zelaya Diaz v. Rosen, 986 F.3d 687, 691-92 (7th Cir. 2021) (applying
Meza Morales).
Although two circuit courts have rejected challenges to Matter of
Castro-Tum, both left open the possibility that the regulations could
permissibly be interpreted to permit administrative closure in at least
some circumstances. In Garcia v. Garland, 64 F.4th 62 (2d Cir. 2023),
the Second Circuit held that the pre-AA96 regulations were ambiguous as
to whether they authorized general administrative closure and deferred
to the Attorney General's interpretation in Matter of Castro-Tum. In
reaching that conclusion, the Second Circuit did not interpret 8 CFR
1003.1(d)(1)(ii) and 1003.10(b) (2018) to foreclose general
administrative closure authority. Rather, the Second Circuit focused
narrowly on the text of those regulations and held that it was not
unreasonable for the Attorney General in Matter of Castro-Tum to
interpret them as not explicitly authorizing general administrative
closure. See id. at 73-74. The Second Circuit acknowledged EOIR
adjudicators' use of administrative closure since at least 1990,
however, id. at 66, and recognized that before Castro-Tum, whether to
allow administrative
[[Page 62256]]
closure was ``a matter reserved to the discretion of the Immigration
Judge or the Board.'' Id. at 76 n.13.
The Sixth Circuit agreed with Matter of Castro-Tum that the
regulatory language prior to the AA96 Final Rule does not provide EOIR
adjudicators a free-standing authority to administratively close cases.
See Hernandez-Serrano, 981 F.3d at 466. However, it later clarified
that immigration judges and the Board have the authority to grant
administrative closure to permit a noncitizen to apply for a
provisional unlawful presence waiver, even though this authority was
not explicitly stated in the regulations. See Garcia-DeLeon, 999 F.3d
at 992-93. As such, the AA96 Final Rule introduced novel restrictions
on EOIR adjudicators' long-standing authority to manage the cases
before them, including through the use of administrative closure when
appropriate. See Matter of Cruz-Valdez, 28 I&N Dec. at 328-29 (stating
that the AA96 Final Rule ``effectively codified Castro-Tum[,]'' which
``departed from long-standing practice . . .'').
Although several courts of appeals have determined that the
authority to administratively close cases was clearly encompassed in
the regulations prior to the AA96 Final Rule, that authority was not
explicitly stated. As the decisions from the Second and Sixth Circuits
make clear, this lack of explicit language has led to debate and
confusion over the full scope of EOIR adjudicators' authority to manage
cases before them. See, e.g., Garcia v. Garland, 64 F.4th 62 at 74
(concluding the pre-AA96 regulations ``do not unambiguously permit
[general] administrative closure.''); Hernandez-Serrano, 981 F.3d at
466 (holding that the regulations prior to the AA96 Final Rule did not
give adjudicators the general authority to administratively close
cases); see also Garcia-DeLeon, 999 F.3d at 992-93 (concluding that an
application for a provisional unlawful presence waiver ``is a limited
circumstance where administrative closure is `appropriate and
necessary' under [8 CFR] 1003.10(b) and 1003.1(d)(1)(ii)''). It is in
the interests of the Department and the public to have a clear
understanding of the scope of an adjudicator's authority. Accordingly,
the Department proposes to amend the regulations to make an EOIR
adjudicator's long-standing authority to administratively close cases
explicit in the regulations.
Additionally, the court in Centro Legal de la Raza identified a
number of issues with the AA96 Final Rule's changes made with respect
to administrative closure. 524 F. Supp. 3d at 966-69. Specifically, the
court noted that the Department failed to adequately consider or
meaningfully address: (1) the impact that the AA96 Final Rule would
have on the vast majority of applicants for administrative closure or
how it would affect noncitizens with meritorious claims for relief; (2)
commenter concerns that the AA96 Final Rule's restriction on
administrative closure conflicted with the inadmissibility waiver
provision at section 212(a)(9)(B)(v) of the INA, 8 U.S.C.
1182(a)(9)(B)(v), as it has been interpreted by DHS; and (3) the
existence of ``extensive contrary evidence showing that administrative
closure enhances efficiency.'' Id. In this NPRM, the Department
proposes further rulemaking on this topic to address these concerns.
The Department believes that codifying general administrative
closure authority will serve the interests of the Department and the
public in fairness and administrative efficiency. Immigration judges
and the Board have used administrative closure as a safeguard to ensure
fairness and to postpone cases in appropriate circumstances, such as
cases involving certain juvenile noncitizens or those with mental
competency issues. See Matter of Avetisyan, 25 I&N Dec. at 691 (stating
that EOIR adjudicators may determine that it is ``necessary or, in the
interests of justice and fairness to the parties, prudent to defer
further action for some period of time''). Retaining the AA96 Final
Rule's restrictions on administrative closure could limit the ability
of noncitizens to pursue certain statutory immigration benefits and
forms of discretionary relief, including: (1) Special Immigrant
Juvenile status, INA 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J); (2) visas
for victims of certain crimes who are cooperating with law enforcement
(U visas), INA 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U); (3) visas for
certain family-sponsored immigrants (e.g., ``Petition for Alien
Relative'' (Form I-130)), INA 203(a), 8 U.S.C. 1153(a); (4) adjustment
of status as a VAWA self-petitioner, INA 204, 8 U.S.C. 1154; (5)
Temporary Protected Status (``TPS''), INA 244, 8 U.S.C. 1254a; and (6)
provisional unlawful presence waivers, 8 CFR 212.7(e)(4)(iii). USCIS
approval of any of these benefits would generally eliminate the need
for continued removal proceedings. Moreover, a removal order entered by
an immigration judge and affirmed by the Board could cut off the
noncitizen's ability to obtain such benefit or relief. Additionally, if
EOIR moves forward with removal proceedings while a prima facie
eligible application for relief is pending before DHS, the outcome of
the case may ultimately depend upon which agency is the first to issue
a final administrative decision. Administrative closure, therefore,
allows for the full consideration of a noncitizen's application for
relief without exposing the noncitizen to the risk of removal. See Meza
Morales, 973 F.3d at 665 (acknowledging the Attorney General's
efficiency justification in Matter of Castro-Tum but stating that cases
must also be ``disposed of fairly, and granting a noncitizen the
opportunity to pursue relief to which she is entitled may be
appropriate and necessary for a fair disposition'').
Without administrative closure, by contrast, individuals are often
unable to sufficiently postpone their proceedings before EOIR and, as a
result, often are issued a removal order from EOIR that impedes the
ability of USCIS to grant relief unless the individual files a motion
to reopen with EOIR to have that order lifted. Requiring individuals to
file motions to reopen and accompanying stay of removal requests, if
necessary, creates additional procedural hurdles that increase the risk
of removal while a potentially valid request for relief is pending with
USCIS. Moreover, such procedural hurdles are significantly more
challenging to overcome if the individual is physically removed from
the United States and must pursue a motion to reopen from abroad.
In addition, upon reconsideration, the Department is now of the
belief that the procedures set forth in the AA96 Final Rule would not
improve efficient adjudication and may, in some cases, undermine the
efficiency of certain adjudications. See Centro Legal de la Raza, 524
F. Supp. 3d at 968 (``Indeed, the Fourth Circuit found that the
Attorney General's efficiency justification in Matter of Castro Tum--
the same efficiency rationale cited in the NPRM and Final Rule--was
`internally inconsistent.' '').
In particular, speed in adjudicating an individual case is not the
only factor that bears on administrative efficiency. But see AA96 Final
Rule at 81598 (characterizing administrative closure as creating delays
that conflict with EOIR's mission to expeditiously adjudicate cases
before it). Efficiency also encompasses consideration of prioritization
and allocation of resources among different cases. Cf. Meza Morales,
973 F.3d at 665 (``[T]he . . . requirement that cases be resolved in
`timely' fashion does not foreclose administrative closure. For one
thing, `timeliness' is not a hard and fast
[[Page 62257]]
deadline; some cases are more complex and simply take longer to
resolve. Thus, not all mechanisms that lengthen the proceedings of a
case prevent `timely' resolution.''); Arcos Sanchez, 997 F.3d at 123
(``The authority to administratively close cases, within the
appropriate and necessary context of each case, can and does permit
[immigration judges] and the Board to answer the questions before them
in a timely and impartial manner consistent with the Act and the
regulations. Or in other words, delay in the case through
administrative closure does not, by definition, prevent the timely
disposition of the case and resolution of questions.''). Moreover, as
pointed out in Meza Morales, the Department is tasked with the dual
imperatives to adjudicate cases with both speed and fairness--the
combination of which offers a better measure of administrative
efficiency than speed alone. 973 F.3d at 665.
In addition, as observed by the Second Circuit, ``it is wasteful to
commit judicial resources to immigration cases when circumstances
suggest that, if the Government prevails, it is unlikely to promptly
effect the petitioner's removal.'' In re Immigr. Petitions, 702 F.3d at
160. Relatedly, it would be wasteful to commit judicial resources to
cases where there are pending alternative resolutions to the case that
would obviate the need for, or significantly narrow the issues in,
removal proceedings. See Meza Morales, 973 F.3d at 665
(``Unsurprisingly . . . an immigration judge might sometimes conclude,
in exercising the discretion granted by [8 CFR 1003.10], that it is
appropriate and necessary to dispose of a case through administrative
closure.''); Matter of Hashmi, 24 I&N Dec. 785, 791 n.4 (BIA 2009)
(noting that administrative closure could ``avoid the repeated
rescheduling of a case that is clearly not ready to be concluded'').
Given EOIR's overburdened dockets, as well as the growing backlog of
pending cases, it is imperative that EOIR effectively allocate its
limited resources--including docket time--to first adjudicate those
cases where there are no pending alternative resolutions to removal. To
do otherwise would expend precious judicial resources on a practically
``empty exercise tantamount to issuing an advisory opinion'' where such
resources could instead be used to adjudicate those cases where no
alternative resolutions may be possible. See In re Immigr. Petitions,
702 F.3d at 161 (internal quotations omitted).
Procedurally, administrative closure is often more efficient than
repeatedly postponing proceedings through multiple continuances, which
requires repeatedly reserving hearing time on the immigration court's
docket. Notably, before Matter of Avetisyan, the Board had encouraged
DHS to consider moving for administrative closure rather than multiple
continuances in ``appropriate circumstances, such as where there is a
pending prima facie approvable visa petition.'' Matter of Hashmi, 24
I&N Dec. at 791 n.4; see also Matter of Rajah, 25 I&N Dec. 127, 135
n.10 (BIA 2009). The Board described administrative closure as ``an
attractive option in these situations, as it will assist in ensuring
that only those cases that are likely to be resolved are before the
Immigration Judge.'' Matter of Hashmi, 24 I&N Dec. at 791 n.4. The
Board also noted that administrative closure could ``avoid the repeated
rescheduling of a case that is clearly not ready to be concluded.'' Id.
With respect to those cases that could result in motions to reopen
being filed with EOIR because of insufficient time to postpone the
conclusion of proceedings for noncitizens to pursue pending relief
outside of EOIR, the AA96 Final Rule framework would also create
significant inefficiencies, as the immigration courts and the Board
must adjudicate both the initial removal proceedings and the subsequent
motion to reopen, as well as any stay of removal requests.
Administrative closure could put such cases on hold until any related
matters pending outside of EOIR are adjudicated, which, in turn, would
allow the immigration judge or the Board to put that adjudication time
towards another case before EOIR.
Similarly, some statutes necessarily delay EOIR proceedings while
noncitizens pursue collateral applications before USCIS. For example,
the William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008 (``TVPRA''), Public Law 110-457, 122 Stat. 5044, mandates
that USCIS has initial jurisdiction over any asylum applications filed
by unaccompanied children in removal proceedings before EOIR. See INA
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) (codifying the TVPRA's
requirement). Under such circumstances, administrative closure of
proceedings while USCIS considers any applications for asylum would
likely be more efficient than repeatedly setting aside docket time for
future hearings that are then continued. Matter of Hashmi, 24 I&N Dec.
at 791 n.4 (noting that administrative closure could ``assist in
ensuring that only those cases that are likely to be resolved are
before the [i]mmigration [j]udge'' and prevent ``the repeated
rescheduling of a case'' that is unready to be concluded).
The AA96 Final Rule asserted that administrative closure, and in
particular administrative closure over a party's objection, ``failed as
a policy'' because of an increased backlog of immigration cases after
Matter of Avetisyan was decided. 85 FR at 81599 (quoting AA96 NPRM, 85
FR at 52504). However, to the extent that eliminating administrative
closure was designed to control the backlog of cases, EOIR's pending
case data does not support a conclusion that eliminating administrative
closure led to such a result. Between May 17, 2018, when Matter of
Castro-Tum was issued, and July 15, 2021, when Matter of Cruz-Valdez
was issued, the backlog of pending cases at EOIR increased from 796,791
on September 30, 2018, to 1,408,669 on September 30, 2021.\26\ Even
accounting for the pandemic and looking only to the end of FY 2019, the
number of pending cases at EOIR increased from 796,791 to
1,088,499.\27\
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\26\ See EOIR, Adjudication Statistics, Pending Cases, New
Cases, and Total Completions, <a href="https://www.justice.gov/eoir/page/file/1242166/download">https://www.justice.gov/eoir/page/file/1242166/download</a> (data generated Apr. 21, 2023).
\27\ Id.
---------------------------------------------------------------------------
While no single factor alone was responsible for the increase in
the backlog, numerous factors may have contributed, including: a
general increase in the number of proceedings initiated by DHS;
increasing complexity in immigration cases; fluctuating numbers of
defensive asylum applications filed in and adjudicated by EOIR;
external factors requiring court closures that generally result in
cancellation of non-detained hearings, such as the COVID-19 pandemic-
related closures and an appropriations lapse between December 2018 and
January 2019; and the limited number of appropriated immigration judge
positions. See Congressional Research Service, R47077, U.S. Immigration
Courts and the Pending Cases Backlog, at 19-30 (Apr. 25, 2022); EOIR,
Congressional Budget Submission for FY 2023 (Mar. 2022) (``Over the
years, several factors have contributed to record growth in both the
number of pending immigration cases and the time required to adjudicate
them. . . Recently, this caseload increase has been exacerbated by the
closures and reductions in service associated with the COVID-19
pandemic, as well as the consistent rise in the number of new NTAs that
DHS has filed before the immigration court over the last five years,
even with the reduction in filings over FY 2020 and FY 2021 (from a
high of almost 550,000 in FY 2019).'').
[[Page 62258]]
Additionally, as discussed above, the growing backlog of cases is
one significant reason it is important for EOIR adjudicators to be able
to efficiently manage their dockets to first adjudicate those cases
that are ripe for review, where removal is a priority, or where there
are no pending alternative resolutions to removal. Administrative
closure is a critical tool that helps EOIR adjudicators manage their
dockets. See Cruz-Valdez, 28 I&N Dec. at 326 (noting that
administrative closure has become ``a routine `tool used to regulate
proceedings' and `manage an Immigration Judge's calendar (or the
Board's docket)' '' (quoting Avetisyan, 25 I&N Dec. at 694)); Arcos
Sanchez, 997 F.3d at 123 (``[D]elay in the case through administrative
closure does not, by definition, prevent the timely disposition of the
case and resolution of questions . . . Without the general authority to
administratively close appropriate cases when necessary, the
[immigration judges] and the Board . . . may be less effective in
managing cases.''); Romero, 937 F.3d at 292-93 (``[D]ocket management
actions such as administrative closure [ ] often facilitate . . . case
resolution . . . As illustrated by Matter of Avetisyan and other BIA
cases, administrative closure is `appropriate and necessary' in a
variety of circumstances.'').
Indeed, an outside consultant previously recommended that EOIR
explore administrative closure as a potential tool that could enhance
the efficiency for EOIR proceedings without compromising fairness.
EOIR, Booz Allen Hamilton, Legal Case Study: Summary Report at 26 (Apr.
6, 2017). Specifically, the consultant, after engaging in a year-long
study of EOIR operations, identified numerous external factors that
contribute to delays in adjudications. See generally id. Among other
things, the consultant recommended that the Department engage in
discussions with DHS to explore the development of policies regarding
administrative closure as one way to improve processing efficiency. Id.
at 26.
Separately, while the AA96 Final Rule asserted that administrative
closure would place the EOIR adjudicator in the position of the
prosecutor, 85 FR at 81599, upon reconsideration, the Department now
concurs with the reasoning in Matter of Avetisyan, which ``considered
the respective roles and responsibilities of the DHS, the Immigration
Judges, and the Board in removal proceedings'' and concluded that
``[a]lthough administrative closure impacts the course removal
proceedings may take, it does not preclude the DHS from instituting or
pursuing those proceedings and so does not infringe on the DHS's
prosecutorial discretion.'' 25 I&N Dec. at 694.\28\ Indeed,
administrative closure is similar to the widespread practice of stays
of proceedings in federal court, which are often utilized to avoid
unnecessary litigation. See, e.g., Ayanian v. Garland, 64 F.4th 1074,
1078-79 (9th Cir. 2023) (explaining that the court previously granted a
motion to stay appellate proceedings ``to allow time to examine grounds
for a possible alternative to litigation'').
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\28\ The AA96 NPRM asserted that the Board, in Matter of
Avetisyan departed, without explanation, from its prior precedent in
Matter of Chamizo, 13 I&N Dec. 435 (BIA 1969), Matter of Quintero,
18 I&N Dec. 348 (BIA 1982), and Matter of Roussis, 18 I&N Dec. 256
(BIA 1982). 85 FR at 52503. However, upon further examination, the
Department is now of the opinion that the AA96 NPRM's reliance on
those cases for the proposition that administrative closure
infringes upon DHS's prosecutorial discretion was inapposite.
Notably, none of those cases involved administrative closure.
Further, Matter of Chamizo cannot reasonably be read to implicate
DHS's prosecutorial discretion authority, as that case was about the
impropriety of an immigration judge granting voluntary departure
without entering an alternative order of removal, as was required by
the Act and pertinent regulations at the time. 13 I&N Dec. at 437.
As to Matter of Quintero and Matter of Roussis, those cases are most
logically read to stand for the proposition that an immigration
judge is not permitted to take an action that is within the
exclusive jurisdiction of or otherwise committed to the discretion
of the former INS District Director. Matter of Quintero, 18 I&N Dec.
at 350; Matter of Roussis, 18 I&N Dec. at 258. Accordingly, Matter
of Avetisyan is not inconsistent with those cases because the
administrative closure of a case does not usurp authority from DHS
or require that DHS take or refrain from taking any specific action
otherwise committed to its discretion.
---------------------------------------------------------------------------
The AA96 NPRM stated that administrative closure precludes DHS from
pursuing removal proceedings while the administrative closure order is
in effect. 85 FR at 52503. However, either party can file a motion to
recalendar a case at any time. Thus, if, for example, an individual's
case has been administratively closed while the individual's prima
facie eligible application for adjustment of status is pending before
DHS and DHS has a strong interest in concluding proceedings, DHS need
only complete adjudication of the application before it and file a
motion to recalendar the case, actions well within its control. If the
EOIR adjudicator grants the motion to recalendar, the case will
proceed.
Therefore, for the reasons discussed above, the Department proposes
regulatory language explicitly providing that immigration judges' and
the Board's authority to take ``any action'' includes administratively
closing cases. See 8 CFR 1003.1(d)(1)(ii) (proposed), 1003.10(b)
(proposed).\29\ The Department's proposed language emphasizes that the
phrase ``any action'' is intended to be interpreted broadly to include
the general authority to take actions regardless of whether they are
explicitly described by regulation by stating that ``[s]uch actions
include,'' but are not limited to, administrative closure, so long as
such actions, are ``necessary or appropriate'' and are otherwise
consistent with governing statutes and regulations. Id.
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\29\ As discussed above, the Department finds persuasive the
reasoning of several circuit courts that have determined that this
authority was previously inherent but not explicitly stated in the
regulations as they existed prior to the AA96 Final Rule. See
Romero, 937 F.3d at 294-95 (holding that the regulations
``unambiguously confer upon [immigration judges] and the BIA the
general authority to administratively close cases'' but stating that
even if ambiguous, ``the Attorney General's reading of the
regulations does not warrant deference because it amounts to an
`unfair surprise' ''); Meza Morales, 973 F.3d at 667 (concluding
that Matter of Castro-Tum was contrary to the unambiguous meaning of
the regulations and that immigration judges and the Board are ``not
precluded from administratively closing cases when appropriate'');
Arcos Sanchez, 997 F.3d at 122 (holding that ``the plain language
establishes that general administrative closure authority is
unambiguously authorized by these regulations''); see also Zelaya
Diaz v. Rosen, 986 F.3d at 691-92 (applying Meza Morales).
---------------------------------------------------------------------------
The Department does not believe that existing regulations that
expressly authorize administrative closure in certain circumstances are
sufficient to capture the numerous scenarios where it may be necessary
or appropriate for EOIR adjudicators to administratively close
proceedings based upon the particular facts of any given case. See,
e.g., 8 CFR 1214.2(a) (referencing administrative closure for T visa
applicants); 1214.3 (referencing administrative closure for V visa
applicants); 1240.62(b) (referencing administrative closure for certain
American Baptist Church (ABC) class members); 1240.70(f)-(h)
(referencing administrative closure for ABC class members, among
others); 1245.13(d)(3)(i) (referencing administrative closure for
certain nationals of Nicaragua and Cuba); 1245.15(p)(4)(i) (referencing
administrative closure for Haitian Refugee Immigration Fairness Act of
1998 (``HRIFA'') applicants); 1245.21(c) (referencing administrative
closure for certain nationals of Vietnam, Cambodia, and Laos). Limiting
administrative closure to these discrete scenarios would not permit
EOIR adjudicators to consider other important factors that may render a
case ripe for administrative closure. Thus, using administrative
closure only in these enumerated circumstances would limit
[[Page 62259]]
administrative closure's efficacy as a docket-management tool. Nor do
the regulations explicitly authorize administrative closure in common
scenarios where administrative closure may be necessary or appropriate,
such as where noncitizens may have pending applications for relief
before DHS.
The Department proposes revising the phrase ``appropriate and
necessary'' to read ``necessary or appropriate'' to emphasize that
adjudicators may choose to administratively close cases, or take other
actions, even if such action is not required.\30\ For example,
administrative closure may be appropriate even where other docket
management tools, such as continuances, may be available. See Meza
Morales, 973 F.3d at 665 (``Administrative closure is plainly an
`action.' . . . in cases in which two coordinate offices in the
executive branch are simultaneously adjudicating collateral
applications, closing one proceeding might help advance a case toward
resolution.''); Matter of Avetisyan, 25 I&N Dec. at 691 (stating that
adjudicators may determine that it is ``necessary or, in the interests
of justice and fairness to the parties, prudent to defer further action
for some period of time''); Matter of Hashmi, 24 I&N Dec. at 791 n.4
(noting that administrative closure could ``avoid the repeated
rescheduling of a case that is clearly not ready to be concluded''). As
another example, the Sixth Circuit recently determined that, although a
noncitizen could theoretically apply for an unlawful presence waiver
from outside of the United States if EOIR did not administratively
close their case (a prerequisite for applying for a provisional
unlawful presence waiver in the United States pursuant to 8 CFR
212.7(e)(4)(iii)), administrative closure was still appropriate because
it ``increases the likelihood that noncitizens will obtain legal status
and resolve their immigration proceedings.'' Garcia-DeLeon, 999 F.3d at
992; see id. (``True, a noncitizen in removal proceedings whose case[ ]
is not administratively closed may still submit an I-601 Waiver of
Inadmissibility after they complete their consular interview and are
determined inadmissible. This old path, however, deterred noncitizens
in removal proceedings from obtaining legal status as permanent
residents.'').
---------------------------------------------------------------------------
\30\ The Department would like to make this distinction clear in
light of Hernandez-Serrano, which stated that the Romero ``court's
conclusion--that any action for the disposition of the case is read
most naturally to encompass actions of whatever kind appropriate for
the resolution of a case--reads out of the regulations the
requirement of necessity.'' 981 F.3d at 464 (cleaned up).
---------------------------------------------------------------------------
The Department also proposes to amend the term ``disposition'' to
read ``disposition or alternative resolution'' of a case. 8 CFR
1003.1(d)(1)(ii) (proposed), 1003.10(b) (proposed). The Department
proposes this amendment to establish that actions other than those that
lead to a final disposition in a case may still be necessary or
appropriate for resolution of the case.\31\ See Arcos Sanchez, 997 F.3d
at 117 (``Administrative closure allows an [immigration judge] or the
Board to `temporarily pause removal proceedings' and place the case on
hold because of a pending alternative resolution or because events
outside the control of either party may affect the case.'').
---------------------------------------------------------------------------
\31\ The Department would like to make this distinction clear in
light of Hernandez-Serrano, which stated that ``the regulations
expressly limit their delegation to actions `necessary for the
disposition' of the case . . . [a]nd that more restricted delegation
cannot support a decision not to decide the case for reasons of
administrative `convenience' or the `efficient management of the
resources of the immigration courts and the BIA.' '' 981 F.3d at
464. But see Meza Morales, 973 F.3d at 665 (``Unsurprisingly, then,
an immigration judge might sometimes conclude, in exercising the
discretion granted by 8 CFR 1003.10, that it is appropriate and
necessary to dispose of a case through administrative closure.'').
---------------------------------------------------------------------------
Moreover, the Department proposes to amend 8 CFR 1003.1(d)(1)(ii)
(proposed) and 1003.10(b) (proposed) to explain that the adjudicator
should determine whether the use of administrative closure meets the
relevant standard in accordance with 8 CFR 1003.1(l) (proposed) or
1003.18(c) (proposed), as applicable. The Department notes that some of
the factors proposed for administrative closure may be similar to
factors proposed for other authorities such as termination. Compare 8
CFR 1003.1(l) (proposed Board administrative closure provision), and
1003.18(c) (proposed immigration judge administrative closure
provision), with 8 CFR 1003.1(m) (proposed Board termination
provision), and 1003.18(d) (proposed immigration judge termination
provision). Thus, an adjudicator should decide which of these tools, if
any, to use based upon the specific facts of each particular case in an
exercise of the adjudicator's independent judgment and discretion. 8
CFR 1003.1(d)(1)(ii), 1003.10(b). Furthermore, the Department also
proposes to clarify that the administrative closure authority would not
be limited by the existence of any other regulations authorizing or
requiring administrative closure. See, e.g., 8 CFR 1214.2(a), 1214.3,
1240.62(b), 1240.70(f)-(h), 1245.13, 1245.15(p)(4)(i), and 1245.21(c).
As discussed above, the Department proposes to add regulatory
language that would define administrative closure and set forth
guidance to assist adjudicators with determining whether administrative
closure is necessary or appropriate for the disposition or alternative
resolution of a case. 8 CFR 1003.1(l)(1), (3) (proposed),
1003.18(c)(1), (3) (proposed). Such guidance is consistent with
established precedent prior to Matter of Castro-Tum. See Matter of
Avetisyan, 25 I&N Dec. at 688. Additionally, the proposed language
would also define recalendaring and set forth guidance for adjudicators
to consider when determining whether it is appropriate to recalendar a
case. 8 CFR 1003.1(l), (l)(2) (proposed), 1003.18(c), (c)(2)
(proposed).
Specifically, the proposed rule would define administrative closure
as ``the temporary suspension of a case.'' 8 CFR 1003.1(l) (proposed),
1003.18(c) (proposed); see Matter of Avetisyan, 25 I&N Dec. at 695
(stating that it is an ``undisputed fact that administrative closure
does not result in a final order''). Accordingly, the regulations would
describe administrative closure as an act that would remove a case from
the Board's or immigration court's active docket or calendar until the
case is recalendared. 8 CFR 1003.1(l) (proposed), 1003.18(c)
(proposed).\32\ The proposed rule would specify that an EOIR
adjudicator ``shall grant a motion to administratively close or
recalendar filed jointly by both parties, or filed by one party where
the other party has affirmatively indicated its non-opposition, unless
[the adjudicator] articulates unusual, clearly identified, and
supported reasons for denying the motion.'' \33\ 8 CFR 1003.1(l)(3)
[[Page 62260]]
(proposed), 1003.18(c)(3) (proposed). This language adopts the standard
articulated in BIA precedent in the context of joint and affirmatively
unopposed motions to continue. See Matter of Hashmi, 24 I&N Dec. at 791
(``The [motion to continue should be granted] by the Immigration Judge
in the absence of unusual, clearly identified, and supported reasons
for not doing so.''). The Department believes that it is appropriate to
extend this standard to motions for administrative closure or
recalendaring, as well as motions to terminate, as discussed in Section
IV.C of this preamble, to help promote greater administrative
efficiency and eliminate needless confusion for adjudicators and
parties.
---------------------------------------------------------------------------
\32\ The regulations also specify that immigration judges may
manage their dockets through the use of continuances. 8 CFR 1003.29.
Continuances keep the case on the immigration judge's active docket
and are used ``to await additional action required of the parties''
to ready the case for final adjudication ``that will be, or is
expected to be, completed within a reasonably certain and brief
amount of time.'' Matter of Avetisyan, 25 I&N Dec. at 691. By
comparison, administrative closure is a tool that removes a case
from an immigration judge's active docket, normally to await some
collateral event whose outcome is not yet known and may not be known
within a definitive time period, that may impact the course of
removal proceedings, and requires a party to move to recalendar in
order to re-initiate adjudication. Id. at 692.
\33\ In practice, immigration judges are encouraged to resolve
administrative closure issues as early as possible in a case by
affirmatively asking parties whether they wish for cases to be
administratively closed. See EOIR, Director's Memorandum 22-03,
Administrative Closure (Nov. 22, 2021) at 3-4. The Department notes
that a motion to administratively close a case before the
immigration court may be made in writing or, alternatively, orally
in court.
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Moreover, the Department believes that where a motion to
administratively close or recalendar a case either is filed jointly or
is affirmatively unopposed, a denial of such a motion serves no
adversarial interest and that, absent other very compelling reasons,
the interests in administrative efficiency dictate granting the motion.
See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating
that the parties' ``agreement on an issue or proper course of action
should, in most instances, be determinative''); see alsoBadwan v.
Gonzales, 494 F.3d 566, 568 (6th Cir. 2007) (noting that when the
government expressed ```no objection to opposing counsel's request' . .
. the government's position demonstrate[d] at a minimum that, as
between the parties to the case, no adversarial interest was served by
the denial'' of the noncitizen's motion); Meza Morales, 973 F.3d at 665
(discussing the interests served by the administrative closure of
cases). By requiring the adjudicator to articulate on the record
unusual, clearly identified, and supported reasons for denying a joint
or affirmatively unopposed motion, the Department acknowledges that
rare circumstances might arise when, in the adjudicator's judgment,
administrative closure or recalendaring might be inappropriate. Thus,
the standard provides adjudicators the flexibility to address the
complexities of an individual case, while requiring the adjudicator to
issue a reasoned explanation that provides the parties with due notice
of the basis for a denial. 8 CFR 1003.1(l)(3) (proposed), 1003.18(c)(3)
(proposed).
In the case of motions to administratively close or recalendar
proceedings that are neither presented jointly nor affirmatively
unopposed, the proposed rule would permit EOIR adjudicators, having
considered the totality of the circumstances, to grant such a motion
over any party's objection. 8 CFR 1003.1(l)(3) (proposed),
1003.18(c)(3) (proposed); see Matter of Avetisyan, 25 I&N Dec. at 694
(holding that EOIR adjudicators may administratively close proceedings
over a party's objection). The proposed rule would specify that, though
administrative closure may be appropriate where a petition,
application, or other action is pending outside of EOIR proceedings,
there is no requirement of a pending petition, application, or other
action for a case to be administratively closed. 8 CFR 1003.1(l)(3)
(proposed), 1003.18(c)(3) (proposed). The proposed rule would specify
that any other regulations that separately authorize or require
adjudicators to administratively close cases in specific circumstances
do not impact the adjudicator's general authority to administratively
close cases. 8 CFR 1003.1(l)(1) (proposed), 1003.18(c)(1) (proposed);
see Meza Morales, 973 F.3d at 667 (construing the term ``any action''
broadly).
In all cases where only one party moves for administrative closure
or recalendaring, and the motion is not affirmatively unopposed, the
proposed rule would require adjudicators to weigh the totality of the
circumstances, taking into consideration all relevant factors,
including any relevant factors from a nonexhaustive list, before
determining whether, in their discretion, administrative closure or
recalendaring \34\ is appropriate. The nonexhaustive list of factors
relevant to administrative closure includes: (1) the reason
administrative closure is sought; (2) the basis for any opposition to
administrative closure; (3) any requirement that a case be
administratively closed for a petition, application, or other action to
be filed with, or granted by, DHS; (4) the likelihood the noncitizen
will succeed on any petition, application, or other action that the
noncitizen is pursuing, or that the noncitizen states in writing or on
the record at a hearing that they plan to pursue, outside of
proceedings before the adjudicator; (5) the anticipated duration of the
administrative closure; (6) the responsibility of either party, if any,
in contributing to any current or anticipated delay; and (7) the
ultimate anticipated outcome of the case. 8 CFR 1003.1(l)(3)(i)
(proposed), 1003.18(c)(3)(i) (proposed); see Matter of Avetisyan, 25
I&N Dec. at 696 (listing factors for consideration relevant to
administrative closure).
---------------------------------------------------------------------------
\34\ See Matter of W-Y-U-, 27 I&N Dec. 17, 18 n.4 (BIA 2017)
(stating that the same factors should be considered for
recalendaring as for administrative closure).
---------------------------------------------------------------------------
When considering whether it would be appropriate to
administratively close a case, the EOIR adjudicator must weigh the
totality of the listed factors to the extent they are applicable. See
Matter of Avetisyan, 25 I&N Dec. at 696 (``[I]t is appropriate for an
Immigration Judge or the Board to weigh all relevant factors presented
. . .'') (emphasis added). Accordingly, the existence or absence of any
one factor is not dispositive of the immigration judge's determination.
Cf. Hernandez-Castillo v. Sessions, 875 F.3d 199, 209 (5th Cir. 2017)
(explaining that Matter of Avetisyan only required the BIA to evaluate
the ``relevant factors presented in the case'' and did not require the
BIA to ``evaluate every factor in detail''). For example, there is no
requirement that the noncitizen must be pursuing, or must plan to
pursue, a petition, application, or other action outside of proceedings
as a prerequisite for an immigration judge to administratively close a
case. Instead, the immigration judge in such a case would consider the
other factors that are applicable to the particular facts and
circumstances of the case in order to determine whether to grant or
deny administrative closure. Ultimately, the immigration judge's or the
Board's determination whether to grant administrative closure is a
discretionary decision. The Department notes that the proposed
administrative closure factors differ from those set forth in Matter of
Avetisyan by adding a factor for consideration: whether the need for
administrative closure is a prerequisite to a petition, application, or
other action being filed with, or granted by, DHS. The Department is
proposing this factor in light of the fairness and efficiency interests
that would be served by allowing a noncitizen to pursue relief that may
be available, and that may resolve a case, without expending
unnecessary EOIR and party resources on litigation.
With respect to the second factor for consideration, the Department
proposes to make it clear that adjudicators should consider whether
there is any opposition to administrative closure, in addition to the
basis for any such opposition. An EOIR adjudicator may administratively
close a case based on a joint motion, a motion that is unopposed, or
over any party's opposition. The principle that an adjudicator, having
considered the totality of the circumstances, may administratively
close a case over a party's objection is consistent with
[[Page 62261]]
Matter of Avetisyan. See 25 I&N Dec. at 694 (stating that ``neither an
Immigration Judge nor the Board may abdicate the responsibility to
exercise independent judgment and discretion in a case by permitting a
party's opposition to act as an absolute bar to administrative closure
of that case when circumstances otherwise warrant such action'').
The Department notes that one reason administrative closure is
sought could be a representation by DHS that it wishes for a particular
case to be administratively closed based on an exercise of
prosecutorial discretion. As described above, administrative closure
has long been used to facilitate DHS's exercise of prosecutorial
discretion, see Section III.B.1 of this preamble, and it generally
would be inefficient for EOIR to otherwise press forward with
proceedings in such cases. See, e.g., United States v. Texas, 143 S.
Ct. 1964, 1972 (2023) (``In light of inevitable resource constraints
and regularly changing public-safety and public-welfare needs, the
Executive Branch must balance many factors when devising arrest and
prosecution strategies.''). The Department believes that an EOIR
adjudicator's role as a neutral arbiter is better served by devoting
resources to those cases where DHS has expressed a continued interest
in effectuating an order of removal. In other words, an EOIR
adjudicator may grant administrative closure solely for equitable
considerations in order to suspend the proceedings before EOIR, such as
DHS's determination that it will not use its limited resources to
proceed with removal proceedings against a particular noncitizen at
that time.
On the other hand, the Department notes that a noncitizen may, at
times, oppose a motion for administrative closure due to the
noncitizen's desire to seek immigration relief available in proceedings
before EOIR. See Matter of W-Y-U-, 27 I&N Dec. at 20 (``The respondent
is opposed to the continuation of administrative closure and has
requested recalendaring of the proceedings. He has explained that he
wants to pursue his application for asylum to its resolution.''). As
set out in the proposed rule, the noncitizen's objection to
administrative closure in such a situation would be considered as a
factor in the analysis but would not by itself be dispositive. The
Department notes that DHS may also have valid reasons for objecting to
administrative closure where, for example, it is clearly unlikely that
an individual will obtain relief in other proceedings. See, e.g., Jesus
Garcia-Garcia, A092-286-960 (BIA May 28, 2009) (non-precedential)
(``DHS has continued to oppose administrative closure by reason of the
respondent's failure to meet the eligibility requirements [for a 212(c)
waiver].'').
The Department seeks comments regarding whether the proposed rule
should include any further protections for noncitizens who wish to have
their cases adjudicated despite DHS's desire to seek administrative
closure, including whether the rule, if finalized, should provide that,
where one party opposes administrative closure, the primary
consideration for the adjudicator is whether the party opposing closure
has provided a persuasive reason for the case to proceed. See Matter of
W-Y-U-, 27 I&N Dec. at 20, n.5 (holding that ``the primary
consideration for an Immigration Judge in determining whether to
administratively close . . . proceedings is whether the party opposing
administrative closure has provided a persuasive reason for the case to
proceed and be resolved on the merits,'' but ``continu[ing] to hold
that neither party has absolute veto power over administrative closure
requests'' (quotation omitted)). As noted above, there may be
situations where DHS opposes administrative closure.
With respect to the fifth and sixth factors for consideration--the
anticipated duration of the closure and the responsibility of either
party, if any, in contributing to any current, anticipated, or
continuing need for delay--the Department notes that adjudicators
should consider both the noncitizen's and DHS's responsibility for any
delay. DHS's responsibility for any delay may include DHS's failure to
resolve the noncitizen's pending applications or requests for relief
that, if granted, may obviate the need for removal proceedings or
significantly narrow the issues before EOIR. Moreover, the potential
duration of the administrative closure while awaiting DHS adjudication,
for example, of a pending application before USCIS, should not weigh
against the decision to administratively close proceedings.
Although the Department generally agrees with Matter of W-Y-U-'s
determination that the factors for administrative closure and
recalendaring should be similar, recalendaring requires slightly
different considerations than the initial decision to administratively
close a case because, at the time an EOIR adjudicator may be
considering recalendaring, there may be more available information
regarding developments in the case that have happened during the
administrative closure. Such information could aid adjudicators in
their decisions. For example, while considering administrative closure,
EOIR adjudicators can only anticipate the duration of the requested
administrative closure; however, for recalendaring, adjudicators will
have more definitive knowledge about the length of time that the case
has actually been administratively closed. As another example, when
considering recalendaring, EOIR adjudicators would have the benefit of
knowing whether parties have taken important steps towards achieving
the purpose of the administrative closure--such as filing for relief
with another agency--or knowing whether another agency has completed
adjudication of alternative forms of relief. In addition, EOIR
adjudicators would have additional information about any new positive
or negative factors, such as subsequent criminal history, that would
weigh for or against recalendaring a case. Therefore, the proposed rule
sets out a separate list of relevant factors that adjudicators should
consider, as the circumstances of the case warrant, when evaluating a
motion to recalendar.
The nonexhaustive list of factors for recalendaring includes: (1)
the reason recalendaring is sought; (2) the basis for any opposition to
recalendaring; (3) the length of time elapsed since the case was
administratively closed; (4) if the case was administratively closed to
allow the noncitizen to file a petition, application, or other action
outside of proceedings before the adjudicator, whether the noncitizen
filed the petition, application, or other action and, if so, the length
of time that elapsed between when the case was administratively closed
and when the noncitizen filed the petition, application, or other
action; (5) if a petition, application, or other action that was
pending outside of proceedings has been adjudicated, the result of that
adjudication; (6) if a petition, application, or other action remains
pending outside of proceedings, the likelihood the noncitizen will
succeed on that petition, application, or other action; and (7) the
ultimate anticipated outcome if the case is recalendared. 8 CFR
1003.1(l)(3)(ii) (proposed), 1003.18(c)(3)(ii) (proposed).
Additionally, the proposed rule would permit EOIR adjudicators, having
considered the totality of the circumstances, to recalendar a case over
any party's objection. 8 CFR 1003.1(l)(3) (proposed), 1003.18(c)(3)
(proposed).
The Department emphasizes that the proposed list of factors for
recalendaring is non-exhaustive, with no single factor necessarily
dispositive. For example, with respect to the fourth factor--
[[Page 62262]]
measuring the duration between the administrative closure of the case
and the time when the noncitizen filed a petition, application, or
other action with DHS--the Department notes that the length of time is
not, on its face, determinative. The Department is aware that some
petitions, applications, or other actions are more complex or require
more time, and that the passage of time is not necessarily a reflection
of a lack of diligence or an intent to unnecessarily delay proceedings.
Rather, the adjudicator may consider this as one of many factors,
including whether the noncitizen has not exercised diligence in
applying for collateral relief with DHS or is seeking to unnecessarily
delay proceedings.
Given the complexity of these issues, the Department specifically
requests public comment on whether the specified factors for
adjudicators to consider in adjudicating motions to administratively
close and motions to recalendar cases are appropriate and whether the
proposed factors should be revised in any way. Specifically, the
Department seeks public input on whether the proposed rule should
specify that a request for administrative closure to allow for the
adjudication of a petition, application, or other action should
generally be granted as long as the noncitizen demonstrates a
reasonable likelihood of success on the merits, and that the noncitizen
has been reasonably diligent in pursuing such relief. The Department
also seeks comment on whether the proposed rule should set out specific
scenarios in which administrative closure may be appropriate where
there is no petition, application, or other action pending outside EOIR
proceedings. Moreover, the Department seeks comment on whether
administrative closure should be upon the motion of a party or whether
it might be necessary or appropriate in certain situations for an
immigration judge or a Board member to administratively close a case
without having received a written motion and, if on appeal, in
situations in which parties do not generally have the opportunity to
make an oral motion before the Board.
C. Termination and Dismissal
The Department proposes to amend its regulations at 8 CFR
1003.1(d)(1)(ii) (pertaining to Appellate Immigration Judges) and 8 CFR
1003.10(b) (pertaining to immigration judges) to make clear that EOIR
adjudicators' authority to ``take any action consistent with their
authorities under the Act and the regulations that is necessary or
appropriate for the disposition or alternative resolution of such
cases'' includes the authority to terminate or dismiss proceedings.\35\
The Department believes that the termination or dismissal of
proceedings in appropriate situations is consistent with immigration
judges' and Appellate Immigration Judges' statutory authority and
duties. See Matter of Coronado Acevedo, 28 I&N Dec at 651-52; Gonzalez,
16 F.4th at 141 (``[W]e fail to see how the general power to terminate
proceedings is inconsistent with the authorities bestowed by the
INA.'') (cleaned up); see also 8 CFR 1240.12(c) (indicating that an
immigration judge's order ``shall direct the respondent's removal from
the United States, or the termination of proceedings, or other such
disposition of the case as may be appropriate'').
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\35\ The Department notes that termination is a case
``disposition'' under 8 CFR 1003.1(d)(1)(ii) and 1003.10(b), not an
``alternative resolution,'' and is only referred to as such
throughout this NPRM. Gonzalez, 16 F.4th at 141 (``Termination of
proceedings certainly falls within this court's reading of `any
action'; indeed, termination actually ends a proceeding rather than
merely facilitating its end.'') (cleaned up).
---------------------------------------------------------------------------
As an initial matter, while the terms ``dismissal'' and
``termination'' have been used interchangeably in case law in some
instances, see, e.g., Matter of Coronado Acevedo, 28 I&N Dec. at 648
n.1; Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998), the Department
proposes to more clearly delineate the circumstances in which the
immigration judge's order disposing of a case should be an order of
dismissal as compared with circumstances in which the immigration
judge's order disposing of a case should be an order of termination.
See 8 CFR 1239.2(b) (proposed).
The proposed rule would specify that EOIR adjudicators may only
enter an order to dismiss proceedings upon a motion by DHS seeking
dismissal pursuant to 8 CFR 1239.2(c) for the reasons specified in 8
CFR 239.2(a). See 8 CFR 1239.2(b) (proposed). The Department proposes
that a motion to dismiss proceedings for a reason other than those
authorized by paragraph (c) should be deemed a motion to terminate and
adjudicated pursuant to 8 CFR 1003.1(m) (proposed) or 1003.18(d)
(proposed). Id.
The Department further proposes to amend 8 CFR 1003.1(d)(1)(ii) and
1003.10(b) to explain that an adjudicator should determine whether the
use of termination or dismissal meets the appropriate standard in
accordance with the provisions in 8 CFR 1003.1(m) (proposed),
1003.18(d) (proposed), or 1239.2(c) (dismissal provision). The
Department reiterates that some of the factors proposed for termination
may be similar to factors proposed for administrative closure; however,
as previously stated, the adjudicator will exercise their independent
judgment and discretion to decide which of these tools to use, if any,
based upon the specific facts of each particular case. 8 CFR
1003.1(d)(ii), 1003.10(b).
Substantively, the Department does not propose to modify the
dismissal grounds referenced by 8 CFR 1239.2(c). However, the
Department believes that it is important for immigration judges and
Appellate Immigration Judges to have the authority to terminate
proceedings in circumstances outside of those explicitly identified in
existing regulations, which do not expressly capture all situations
where EOIR adjudicators' exercise of that authority may be necessary or
appropriate for the disposition of a case. See Matter of Coronado
Acevedo, 28 I&N Dec. at 651-52 (noting situations not explicitly
enumerated in the regulations in which EOIR adjudicators have commonly
deemed termination of proceedings to be an appropriate disposition of
the case). In such circumstances, these proposed termination grounds
can promote efficiency and fairness and help immigration judges and
Appellate Immigration Judges better manage their calendars and dockets.
See id. at 651 (indicating that precluding termination of proceedings
in certain common situations not accounted for in the regulations
``would undermine the fair and efficient adjudication'' of cases in
some instances) (citing Matter of A-C-A-A-, 28 I&N Dec. 351, 351 (A.G.
2021)).
Accordingly, the Department proposes to codify EOIR adjudicators'
termination authority as detailed below. The proposed rule
distinguishes between EOIR adjudicators' authority to terminate
removal, deportation, and exclusion proceedings and their authority to
terminate all other types of proceedings. See 8 CFR 1003.1(m)
(proposed), 1003.18(d) (proposed). Although the issue of termination is
likely to occur most frequently in the context of removal, deportation,
and exclusion proceedings, the Department is cognizant that issues
related to termination may also arise in other types of proceedings,
including asylum-only proceedings (8 CFR 1208.2(c)(1)) and withholding-
only proceedings (8 CFR 1241.8(e)).\36\ However, because the
[[Page 62263]]
scope of these proceedings is more limited than the scope of removal,
deportation, and exclusion proceedings, many of the grounds for
termination of removal, deportation, and exclusion proceedings will be
inapplicable to or inappropriate for other types of proceedings.\37\
The Department thus believes it is appropriate to provide separate and
distinct termination authority for other types of proceedings.
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\36\ The Department identifies these types of proceedings as
examples only. The proposed rule's framework for termination of
other proceedings in 8 CFR 1003.1(m)(2) (proposed) and 8 CFR
1003.18(d)(2) (proposed) applies to all proceedings other than
removal, deportation, and exclusion proceedings, though the
Department anticipates that grounds for termination in other types
of proceedings will be less common.
\37\ As an illustrative example, withholding-only proceedings
involve noncitizens subject to reinstatement of prior removal orders
under INA241(a)(5), 8 U.S.C. 1231(a)(5), and noncitizens subject to
expedited removal under INA238(b), 8 U.S.C. 1228(b). See 8
CFR1208.2(c)(2). The scope of review in withholding-only proceedings
is limited to adjudication of whether the noncitizen is eligible for
withholding of removal or protection under the Convention Against
Torture pursuant to INA 241(b)(3), 8 U.S.C. 1231(b)(3). See 8 CFR
1208.2(c)(3)(i). Indeed, during withholding-only proceedings, ``all
parties are prohibited from raising or considering any other issues,
including but not limited to issues of admissibility, deportability,
eligibility for waivers, and eligibility for any other form of
relief.'' Id. Because of this explicit limitation in the scope of
the proceedings, many of the grounds for termination of removal,
deportation, and exclusion proceedings do not apply to withholding-
only proceedings. See also id. (discussing limited scope of review
in asylum-only proceedings); cf. Matter of D-M-C-P-, 26 I&N Dec.
644, 647 (BIA 2015) (stating that EOIR adjudicators lack the
``jurisdiction to consider whether [asylum-only] proceedings were
improvidently instituted pursuant to a referral under the [Visa
Waiver Program]'').
---------------------------------------------------------------------------
The proposed rule categorizes EOIR adjudicators' termination
authority as follows: (1) mandatory termination in removal,
deportation, or exclusion proceedings, 8 CFR 1003.1(m)(1)(i)
(proposed), 1003.18(d)(1)(i) (proposed); (2) discretionary termination
in removal, deportation, or exclusion proceedings, 8 CFR
1003.1(m)(1)(ii) (proposed), 1003.18(d)(1)(ii) (proposed); and (3)
mandatory and discretionary termination in other proceedings, 8 CFR
1003.1(m)(2) (proposed), 1003.18(d)(2) (proposed).
The proposed rule identifies specific circumstances where
termination would be required, and others where termination would be
discretionary. The proposed rule would require termination in removal,
deportation, or exclusion proceedings where: (1) no charge of
deportability, inadmissibility, or excludability can be sustained; (2)
fundamentally fair proceedings are not possible because the noncitizen
is not mentally competent and adequate safeguards are unavailable; (3)
the noncitizen has, since the initiation of proceedings, obtained
United States citizenship; (4) the noncitizen has, since the initiation
of proceedings, obtained lawful permanent resident status, refugee
status, asylee status, or nonimmigrant status under INA 101(a)(15)(S),
(T), or (U), 8 U.S.C. 1101(a)(15)(S), (T), or (U), that has not been
revoked or terminated, and the noncitizen would not have been
deportable, inadmissible, or excludable as charged if the noncitizen
had obtained such status before the initiation of proceedings; \38\ (5)
termination is required as provided in 8 CFR 1245.13(l); (6)
termination is otherwise required by law; or (7) the parties jointly
filed a motion to terminate, or one party filed a motion to terminate
and the other party affirmatively indicated its non-opposition, unless
the adjudicator articulates unusual, clearly identified, and supported
reasons for denying the motion. 8 CFR 1003.1(m)(1)(i) (proposed),
1003.18(d)(1)(i) (proposed).
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\38\ This proposed provision is not intended to amend an EOIR
adjudicator's discretion to reopen cases. Where such lawful
immigration status is obtained after the conclusion of removal
proceedings, reopening and termination may well be appropriate;
however, this proposed authority relates solely to termination, and
the Department is not suggesting that reopening would be required.
---------------------------------------------------------------------------
Regarding the mandatory grounds for termination of removal,
deportation, or exclusion proceedings, the Board has held that
termination of removal, deportation, or exclusion proceedings is
appropriate where DHS cannot sustain the charges of removability.
Matter of Sanchez-Herbert, 26 I&N Dec. at 44; see Matter of Ortega-
Quezada, 28 I&N Dec. 598, 604 (BIA 2022) (``Because the respondent is
not removable as charged, we will sustain the appeal and terminate the
proceedings.''). Furthermore, if the noncitizen has obtained one of the
statuses enumerated above, and the noncitizen would not have been
deportable, inadmissible, or excludable as charged if the status had
been obtained prior to the initiation of proceedings, there would be no
need to continue with the proceedings based upon charges that would not
have been sustainable. Moreover, the Department proposes to make clear
that termination is required where fundamentally fair removal,
deportation, or exclusion proceedings are not possible because the
noncitizen lacks mental competency and adequate safeguards are
unavailable. 8 CFR 1003.1(m)(1)(i)(B) (proposed), 1003.18(d)(1)(i)(B)
(proposed); cf. Matter of M-A-M-, 25 I&N Dec. 474, 483 (BIA 2011) (``In
some cases, even where the court and the parties undertake their best
efforts to ensure appropriate safeguards, concerns may remain. In these
cases, the Immigration Judge may pursue alternatives with the
parties.''). In addition, the Department further proposes to make clear
that it is not limiting termination authority, as specified in the
existing regulations or as otherwise required by constitutional,
statutory, or binding case law. 8 CFR 1003.1(m)(1)(i)(E)-(F)
(proposed), 1003.18(d)(1)(i)(E)-(F) (proposed).
Finally, the proposed rule would mandate that EOIR adjudicators
grant joint motions to terminate removal, deportation, or exclusion
proceedings, or motions to terminate such proceedings by one party to
which the other party has affirmatively indicated its non-opposition,
unless the adjudicator articulates unusual, clearly identified, and
supported reasons for denying the motion. 8 CFR 1003.1(m)(1)(i)(G)
(proposed), 1003.18(d)(1)(i)(G) (proposed); cf. Matter of Hashmi, 24
I&N Dec. at 791 (stating that in considering a noncitizen's motion to
continue, ``[i]f the DHS affirmatively expresses a lack of opposition,
the [motion should be granted] by the Immigration Judge in the absence
of unusual, clearly identified, and supported reasons for not doing
so''); see also Matter of Yewondwosen, 21 I&N Dec. at 1026 (stating
that the parties' ``agreement on an issue or proper course of action
should, in most instances, be determinative''); Badwan, 494 F.3d at 568
(noting that when the government expressed `` `no objection to opposing
counsel's request' . . . the government's position demonstrate[d] at a
minimum that, as between the parties to the case, no adversarial
interest was served by the denial'' of the noncitizen's motion).
However, the Department notes that either party retains the ability to
timely rescind its participation in a joint termination motion or its
affirmative non-opposition to termination should circumstances change,
such as the discovery of new relevant evidence.
The proposed ``unusual, clearly identified, and supported''
language is based on the Hashmi standard for joint and affirmatively
unopposed motions to continue, and also matches the proposed language
in this rule for joint or affirmatively unopposed motions for
administrative closure. See Section IV.B of this preamble. The
Department believes that it is appropriate to extend this standard to
motions for termination, which will help promote greater administrative
efficiency and eliminate needless confusion for adjudicators and
parties.
In requiring that the adjudicator articulate on the record unusual,
clearly identified, and supported reasons for denying a joint or
affirmatively unopposed motion to terminate, the Department
acknowledges that rare
[[Page 62264]]
circumstances might arise where, in the adjudicator's judgment,
termination might be inappropriate, even when the motion is presented
jointly or is affirmatively unopposed. Thus, the standard provides
adjudicators needed flexibility to address the complexities of an
individual case, while also requiring due notice to the parties of the
reasons for the denial. 8 CFR 1003.1(m)(1)(i)(G) (proposed),
1003.18(d)(1)(i)(G) (proposed).
Additionally, the proposed rule would allow for discretionary
termination of removal, deportation, or exclusion proceedings in the
following specific circumstances: (1) where an unaccompanied child, as
defined in proposed 8 CFR 1001.1(hh), states an intent, either in
writing or on the record at a hearing, to seek asylum with USCIS, and
USCIS has initial jurisdiction over the application pursuant to section
208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C); (2) where the
noncitizen demonstrates prima facie eligibility for relief from removal
or lawful status based on a petition, application, or other action that
USCIS has jurisdiction to adjudicate, including naturalization or
adjustment of status; (3) where the noncitizen is a beneficiary of
Temporary Protected Status, deferred action, or Deferred Enforced
Departure; \39\ (4) where USCIS has granted a provisional unlawful
presence waiver pursuant to 8 CFR 212.7(e); (5) where termination is
otherwise authorized by 8 CFR 1216.4(a)(6) or 1238.1(e); (6) where the
parties have filed a motion to terminate as described in 8 CFR
214.14(c)(1)(i) or 214.11(d)(1)(i); or (7) under other comparable
circumstances, as discussed in further detail below. Termination is up
to the adjudicator's discretion in these circumstances, and the
adjudicator may consider any basis for opposition to termination in
making their determination.
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\39\ The President may authorize Deferred Enforced Departure
pursuant to the President's constitutional authority to conduct the
foreign relations of the United States. See Deferred Enforced
Departure, USCIS, <a href="https://www.uscis.gov/humanitarian/deferred-enforced-departure">https://www.uscis.gov/humanitarian/deferred-enforced-departure</a>. The Department notes that Deferred Enforced
Departure ``is not a specific immigration status,'' but noncitizens
who are covered by Deferred Enforced Departure ``are not subject to
removal from the United States for a designated period of time.''
See id.
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The Department proposes these discretionary grounds for termination
of removal, deportation, or exclusion proceedings for the following
reasons. A number of these grounds focus on circumstances where
alternative relief may be available to the noncitizen that would end
the need for continued proceedings, thereby saving EOIR adjudicatory
resources for other cases. These include: (1) a noncitizen
demonstrating prima facie eligibility for relief from removal or for a
lawful status based on a petition, application, or other action that
USCIS has jurisdiction to adjudicate; (2) an unaccompanied child, as
defined in proposed 8 CFR 1001.1(hh), intending to apply for asylum
with USCIS; and (3) a beneficiary of Temporary Protected Status,
deferred action, or Deferred Enforced Departure. See Matter of Coronado
Acevedo, 28 I&N Dec. at 651-52 (explaining that EOIR adjudicators
commonly exercised termination authority when termination was necessary
for noncitizens ``to be eligible to seek immigration relief before
USCIS''). With respect to termination where a noncitizen has
demonstrated prima facie eligibility for relief from removal or for a
lawful status based on a petition, application, or other action that
USCIS has jurisdiction to adjudicate, the Department notes that EOIR
adjudicators must make such determinations based on the particular
facts of a given case and the Department does not intend this proposed
ground for discretionary termination to authorize a general practice of
terminating proceedings involving prima facie eligibility for asylum.
Rather, consistent with 8 CFR 1208.2(b), the default rule that EOIR
adjudicators continue to exercise authority over asylum applications
filed by noncitizens in removal proceedings would continue to apply.
In addition, where an immigrant visa is immediately available to a
noncitizen and USCIS has granted a provisional unlawful presence waiver
after the noncitizen filed a Form I-601A, Application for Provisional
Unlawful Presence Waiver, it may be appropriate to terminate
proceedings so the noncitizen can depart the United States to obtain a
visa through consular processing without becoming inadmissible on
another basis. See 78 FR at 544 (stating that ``[i]f the Form I-601A is
approved for [a noncitizen] whose proceedings have been
administratively closed, the [noncitizen] should seek termination or
dismissal of the proceedings, without prejudice, by EOIR . . . or risk
becoming ineligible for the immigrant visa based on another ground of
inadmissibility''); see also Matter of Coronado Acevedo, 28 I&N Dec. at
651 (suggesting that termination of proceedings may be appropriate
where ``the pendency of removal proceedings [could] cause[ ] adverse
immigration consequences for a respondent who must travel abroad to
obtain a visa'').
The proposed rule would also authorize immigration judges and
Appellate Immigration Judges to terminate removal, deportation, or
exclusion proceedings in the exercise of discretion in other comparable
circumstances when similarly necessary or appropriate for the
disposition or alternative resolution of the case. 8 CFR
1003.1(m)(1)(ii)(G) (proposed), 1003.18(d)(1)(ii)(G) (proposed). The
Department recognizes that there may be other circumstances not
explicitly stated in the proposed rule in which termination may also be
appropriate that are similar in nature to the explicit grounds in the
proposed rule authorizing termination. Moreover, similar to the
mandatory grounds for termination of removal, deportation, or exclusion
proceedings, the Department proposes to clarify that this proposed rule
is not intended to limit any pre-existing regulations authorizing
termination under certain circumstances. See 8 CFR 1003.1(m)(1)(ii)(E)-
(F) (proposed), 1003.18(d)(1)(ii)(E)-(F) (proposed). This proposed
standard would provide sufficient flexibility such that EOIR
adjudicators may terminate a case if it presents similar circumstances
to the enumerated grounds for termination and is otherwise necessary or
appropriate.
At the same time, this provision would implement important
guardrails to limit adjudicators' termination authority. See 8 CFR
1003.1(m)(1)(ii)(G) (proposed) (precluding termination by the Board for
purely humanitarian reasons unless DHS expressly consents to
termination, joins in a motion to terminate, or affirmatively indicates
its non-opposition to a noncitizen's motion), 1003.18(d)(1)(ii)(G)
(proposed) (same for immigration judges); see also 8 CFR
1003.1(m)(2)(iii) (proposed) (providing that in proceedings other than
removal, deportation, or exclusion proceedings, nothing in the proposed
regulatory provisions authorizes the Board to terminate proceedings
where prohibited by another regulatory provision), 1003.18(d)(2)(iii)
(proposed) (same for immigration judges). The Department acknowledges
that termination of removal, deportation, or exclusion proceedings is
inappropriate in certain circumstances. The proposed rule would not
change the longstanding principle that immigration judges and Appellate
Immigration Judges have no authority to review or second-guess DHS's
exercise of prosecutorial discretion, including its decision whether to
commence removal proceedings. See, e.g., Matter of E-R-M- & L-R-M-, 25
I&N Dec. 520 (BIA 2011)
[[Page 62265]]
(holding that an immigration judge could not second-guess DHS exercise
of prosecutorial discretion to place an arriving noncitizen directly in
removal proceedings rather than the expedited removal process); Matter
of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA 2017) (explaining that
immigration judges and the Board do not have the authority to review a
DHS decision to initiate removal proceedings in a particular case);
Matter of G-N-C-, 22 I&N Dec. at 284 (stating that the decision to
institute deportation proceedings is not a decision that the
immigration judge or Board may review because it is an exercise of
prosecutorial discretion); see also Cortez-Felipe v. INS, 245 F.3d
1054, 1057 (9th Cir. 2001) (observing that neither immigration judges
nor the Board possess the authority to review DHS's ``discretion
regarding when and whether to initiate [removal] proceedings'' (citing
authorities)). Similarly, an adjudicator may not terminate removal,
deportation, or exclusion proceedings for purely humanitarian reasons
unless DHS expressly consents to such termination, joins in a motion
for termination, or affirmatively states its non-opposition to a motion
for termination on such a basis. See Lopez-Telles v. INS, 564 F.2d
1302, 1303 (9th Cir. 1977) (holding that immigration judges have no
statutory or inherent power to terminate deportation proceedings over
the objection of INS to provide humanitarian relief not authorized by
the statute to a deportable noncitizen).
Moreover, in light of these proposed standards governing
termination of proceedings, the Department proposes to remove and
reserve 8 CFR 1239.2(f) as newly proposed language would cover the
circumstances currently addressed in that subsection. Compare 8 CFR
1003.1(m)(1)(ii)(B) (proposed) (authorizing termination by the Board
where a noncitizen demonstrates prima facie eligibility for relief from
removal or for a lawful status based on a petition, application, or
other action that USCIS has jurisdiction to adjudicate, including
naturalization or adjustment of status), and 1003.18(d)(1)(ii)(B)
(proposed) (same authorization for immigration judges), with 8 CFR
1239.2(f) (authorizing an immigration judge to terminate a noncitizen's
removal proceedings in order to pursue a pending application or
petition for naturalization).
Finally, although such scenarios may be rare, the proposed rule
also explicitly provides for termination in proceedings other than
removal, deportation, or exclusion. See 8 CFR 1003.1(m)(2) (proposed),
1003.18(d)(2) (proposed). Such proceeding types include, among others,
withholding-only, asylum-only, credible fear, reasonable fear,
rescission, and claimed status. The Department believes that providing
immigration judges and the Board with termination authority in these
limited proceedings will ensure that adjudicators are not limited from
reaching a proper resolution, as determined by the specific facts of
each case.
Substantively, as with removal, deportation, and exclusion
proceedings, the proposed rule requires immigration judges and the
Board to terminate these other proceedings where the parties have
jointly filed a motion to terminate, or one party has filed a motion to
terminate and the other party has affirmatively indicated its non-
opposition, unless the adjudicator articulates unusual, clearly
identified, and supported reasons for denying the motion. See 8 CFR
1003.1(m)(2)(i) (proposed), 1003.18(d)(2)(i) (proposed). The proposed
rule further requires immigration judges and the Board to terminate
these other proceedings when required by law, including by statute,
regulation, or binding Board or court decision. Id. In all other
circumstances, the proposed rule provides adjudicators with the general
discretionary authority to terminate these proceedings where necessary
or appropriate for the disposition or alternate resolution of the case,
subject to the same limitations as in removal proceedings. 8 CFR
1003.1(m)(2)(ii) (proposed), 1003.18(d)(2)(ii) (proposed). Finally, the
proposed rule specifies that nothing in the new provision allows
adjudicators to terminate proceedings where prohibited by another
regulatory provision; in other words, this new provision is not
intended to trump other regulatory provisions governing these
proceedings. 8 CFR 1003.1(m)(2)(iii) (proposed), 1003.18(d)(2)(iii)
(proposed).
The Department notes that, in some scenarios in these other
proceedings, alternative options to termination are available. For
example, it may be that an applicant in withholding-only proceedings is
mentally incompetent and adequate safeguards are unavailable, but the
adjudicator believes it would be inappropriate to terminate the
proceedings because doing so would leave the applicant without any
protection from removal, such as when, for example, a noncitizen is
subject to reinstatement of a prior removal order under section
241(a)(5) of the INA, 8 U.S.C. 1231(a)(5), and eligible only for
withholding of removal. In such a situation, administrative closure
would be available and would allow for the case to be recalendared in
the future if appropriate.
The Department seeks public comment on whether the proposed
termination standards are warranted and whether these standards should
be broadened, narrowed, or altered. Additionally, the Department seeks
comment on the evidence that would best support certain proposed
grounds for termination, for example, whether evidence of filings with
USCIS should be required in some cases. The Department also seeks
comment on the proposed framework in 8 CFR 1239.2(b) that would
distinguish between the exercise of dismissal authority, which applies
to a decision on a DHS motion to dismiss for the reasons specified in 8
CFR 239.2(a), and termination authority, which applies when an EOIR
adjudicator terminates proceedings for the reasons specified in
proposed 8 CFR 1003.1(m) and 1003.18(d).
Further, the Department seeks public comment on whether the
regulations should impose additional constraints on the termination
authority. Finally, the Department seeks comment on whether the
regulations should specify that termination should generally be without
prejudice to DHS's ability to recommence removal proceedings if
circumstances change except where the termination was based on DHS's
failure to sustain the removal charges. Similarly, the Department seeks
comment on whether immigration judges or Appellate Immigration Judges
may terminate a case only on a party's motion or whether there are
situations where EOIR adjudicators may exercise termination authority
sua sponte.
D. Sua Sponte Reopening or Reconsideration and Self-Certification
The Department proposes to amend its regulations at 8 CFR 1003.2(a)
and 1003.23(b), respectively, governing the ability of immigration
judges and the Board to sua sponte reopen or reconsider a case by
restoring the regulatory standard in effect before the promulgation of
the AA96 Final Rule.\40\ The restored standard provides that an
immigration judge and the Board may
[[Page 62266]]
reopen or reconsider a case upon their own motion at any time after
they have rendered a decision if they have jurisdiction.
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\40\ The Department recognizes that an action is not, by its
literal definition, ``sua sponte'' when the action is undertaken
pursuant to a request made by a party to the proceedings. See Sua
sponte, Black's Law Dictionary (11th ed. 2019) (``Without prompting
or suggestion; on its own motion.''). Nonetheless, immigration
judges and the Board have long entertained motions for sua sponte
reopening, Djie v. Garland, 39 F.4th 280, 282 n.1 (5th Cir. 2022),
and the Department will continue to use this term for motions that
may be granted in ``exceptional situations,'' Matter of G-D-, 22 I&N
Dec. 1132, 1133 (BIA 1999); Matter of J-J-, 21 I&N Dec. 976, 985
(BIA 1997).
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Prior to the AA96 Final Rule, the original regulation conferring
authority to sua sponte reopen or reconsider cases had been in effect
since 1958, see Dada, 554 U.S. at 12-13, and had served as a vital tool
to prevent injustices in the immigration system. See, e.g., Matter of
X-G-W-, 22 I&N Dec. 71 (BIA 1998) (holding that, in a specific
circumstance, a fundamental change in asylum law that made the
noncitizen eligible for relief warranted sua sponte reopening); see
also P-O-J-, No.: AXXX-XXI-700, 2016 WL 1084517, at *1 (BIA Feb. 24,
2016) (non-precedential) (sua sponte reopening and terminating because
noncitizen obtained asylee status). For example, without the
availability of such a tool, noncitizens who would otherwise be
eligible for an initial grant of, or return to, lawful status may be
removed from the United States. See Centro Legal de la Raza, 524 F.
Supp. 3d at 971 (stating that ``elimination [of sua sponte authority]
will foreclose the only avenue of relief for some noncitizens who would
otherwise be eligible for relief from removal'').
The strong need for sua sponte authority in certain limited
circumstances is underscored by the fact that, in promulgating prior
regulations implementing statutory motions to reopen and reconsider,
the Department specifically declined to add a good cause exception to
the statutory time and number limits on such motions due to the
availability of sua sponte reopening and reconsideration. See 61 FR at
18902. Removing sua sponte authority without creating a similar safety
valve would prevent EOIR adjudicators from remedying the types of
exceptional circumstances described above.
Moreover, the longstanding availability of sua sponte reopening and
reconsideration operated under a workable scheme. For example, the
Board has published decisions applying the ``exceptional
circumstances'' standard in specific situations and has the ability to
publish further decisions clarifying the standard as necessary. See,
e.g., Matter of Yauri, 25 I&N Dec. 103, 110-11 (BIA 2009) (applying
standard to case involving a pending application before DHS); Matter of
G-D-, 22 I&N Dec. 1132 (BIA 1999) (applying standard to request based
on a change in law). Maintaining the exceptional circumstances standard
allows adjudicators sufficient discretion to reopen in meritorious
circumstances.
Similarly, the Department is aware of no evidence that immigration
judges or the Board routinely used sua sponte authority to reopen cases
in which a motion to reopen would have been time- or number-barred
without considering whether the ``exceptional circumstances'' standard
was met. See, e.g., AA96 Final Rule, 85 FR at 81631 (raising concerns
that sua sponte reopening could be used to cure filing defects or
circumvent regulations). Additionally, at the immigration court level,
an immigration judge's exercise of sua sponte authority is subject to
appellate review by the Board, and the Board can remand where such
authority has been used improperly. See 8 CFR 1003.2(a); see also
Matter of G-D-, 22 I&N Dec. at 1132.
The Department finds that the need for sua sponte authority in
certain cases outweighs any finality concerns in this context. See,
e.g., AA96 Final Rule, 85 FR at 81632 (raising finality concerns
regarding sua sponte motions). Sua sponte reopening and reconsideration
are reserved for truly exceptional cases and, with limited exceptions,
are fully committed to agency discretion. See Menendez-Gonzalez v.
Barr, 929 F.3d 1113, 1116 (9th Cir. 2019) (explaining that sua sponte
reopening authority is committed to agency discretion and that the
court may only review for legal or constitutional error). As
noncitizens are not entitled to sua sponte reopening or
reconsideration, immigration judges and the Board can ensure that such
authority only disturbs the finality of proceedings in the limited
number of meritorious cases involving exceptional circumstances.
For similar reasons as those described above, the Department
proposes to reinstate the authority of the Board to accept untimely or
defective appeals through self-certification. 8 CFR 1003.1(c)
(proposed).
E. Board Findings of Fact--Administrative Notice
The Department proposes to rescind all of the changes t
[…truncated; see source link]Indexed from Federal Register on September 8, 2023.
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