Rule2024-11121
Efficient Case and Docket Management in Immigration Proceedings
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
May 29, 2024
Effective
July 29, 2024
Issuing agencies
Justice DepartmentExecutive Office for Immigration Review
Abstract
On September 8, 2023, the Department of Justice ("Department") published a notice of proposed rulemaking ("NPRM") proposing to rescind an enjoined December 2020 rule (the "AA96 Final Rule") that imposed novel limits on the authority of immigration judges and the Board of Immigration Appeals ("BIA" or "Board") to efficiently dispose of cases. Because the AA96 Final Rule has been enjoined since shortly after its issuance, the proposed rule was designed to largely codify the currently operative status quo. After reviewing and considering the public comments received during the comment period, the Department is finalizing the proposed rule with the limited changes described in the preamble. The Department believes that this rule will promote the efficient and expeditious adjudication of cases, afford immigration judges and the Board flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the Board.
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<title>Federal Register, Volume 89 Issue 104 (Wednesday, May 29, 2024)</title>
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[Federal Register Volume 89, Number 104 (Wednesday, May 29, 2024)]
[Rules and Regulations]
[Pages 46742-46795]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11121]
[[Page 46741]]
Vol. 89
Wednesday,
No. 104
May 29, 2024
Part V
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1001, 1003, 1239, et al.
Efficient Case and Docket Management in Immigration Proceedings; Final
Rule
Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules
and Regulations
[[Page 46742]]
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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. 5930-2024]
RIN 1125-AB18
Efficient Case and Docket Management in Immigration Proceedings
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: On September 8, 2023, the Department of Justice
(``Department'') published a notice of proposed rulemaking (``NPRM'')
proposing to rescind an enjoined December 2020 rule (the ``AA96 Final
Rule'') that imposed novel limits on the authority of immigration
judges and the Board of Immigration Appeals (``BIA'' or ``Board'') to
efficiently dispose of cases. Because the AA96 Final Rule has been
enjoined since shortly after its issuance, the proposed rule was
designed to largely codify the currently operative status quo. After
reviewing and considering the public comments received during the
comment period, the Department is finalizing the proposed rule with the
limited changes described in the preamble. The Department believes that
this rule will promote the efficient and expeditious adjudication of
cases, afford immigration judges and the Board flexibility to
efficiently allocate their limited resources, and protect due process
for parties before immigration judges and the Board.
DATES: This rule is effective July 29, 2024.
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. Background
On December 16, 2020, the Department published a final rule that
amended Executive Office for Immigration Review (``EOIR'') regulations
regarding the handling of appeals and motions before the Board, as well
as the authority of immigration judges and Appellate Immigration Judges
to administratively close cases. See Appellate Procedures and
Decisional Finality in Immigration Proceedings; Administrative Closure,
85 FR 81588 (Dec. 16, 2020) (``AA96 Final Rule''). The AA96 Final Rule
changes included: (1) implementing simultaneous briefing schedules at
the Board for both detained and non-detained cases; (2) limiting
adjudicators' freestanding authority to administratively close cases;
(3) curtailing adjudicators' sua sponte authority to reopen or
reconsider cases; (4) allowing for more expansive factfinding before
the Board; (5) restricting the Board's authority to remand cases to the
immigration judge; (6) modifying the background checks process at the
Board; (7) implementing regulatory internal appeal processing deadlines
at the Board; (8) providing the EOIR Director with authority to
adjudicate cases in specific circumstances; and (9) allowing for
quality case certifications from an immigration judge to the EOIR
Director.
The AA96 Final Rule's effective date was January 15, 2021, but the
rule was preliminarily enjoined on March 10, 2021, and has not been in
effect since that date. See Centro Legal de la Raza v. Exec. Off. for
Immigr. Rev., 524 F. Supp. 3d 919 (N.D. Cal. 2021). The United States
District Court for the Northern District of California determined that
the plaintiffs were likely to succeed on the merits of their challenge
to the AA96 Final Rule. Id. at 928. Specifically, the court concluded
that plaintiffs were likely to succeed in claiming that (1) changes
implemented by the rule were arbitrary and capricious; (2) the rule
violated the Regulatory Flexibility Act; and (3) the rule's delegation
of rulemaking authority to the EOIR Director violated the
Administrative Procedure Act (``APA''). Id. at 962-76.
On September 8, 2023, after reconsidering the AA96 Final Rule,
including the comments received during that rulemaking, and the issues
identified in the Centro Legal de la Raza litigation, the Department
published an NPRM in the Federal Register proposing to largely rescind
the changes made by the AA96 Final Rule, as well as setting standards
for administrative closure and the termination of proceedings. See
Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure, 88 FR 62242 (Sept. 8, 2023). The
NPRM also proposed to retain, with modifications, a limited number of
AA96 Final Rule changes, including: (1) allowing the Board to review
voluntary departure issues de novo and to issue final decisions on
voluntary departure requests in some instances, id. at 62267; (2)
allowing the Board to retain an appeal while background checks are
pending, rather than remand to the immigration judge, id. at 62270; (3)
modifying the Board's 180-day adjudication timeline for three-member
panels to begin running after completion of the record, id. at 62270-
71; and (4) retaining some technical changes from the AA96 Final Rule,
id. at 62273. Further, the NPRM also proposed adding definitions for
the terms ``noncitizen'' and ``unaccompanied child,'' as well as
proposed minor technical changes. Id. at 62272-73.
As explained more fully in the NPRM, the Department believes that
rescinding the AA96 Final Rule will promote the efficient and
expeditious adjudication of cases, afford immigration judges and the
Board flexibility to efficiently allocate their limited resources, and
protect due process for parties before immigration judges and the
Board. See generally id. at 62254-73 (explaining bases for each
proposed change).
The comment period for the NPRM opened on September 8, 2023, and
closed on November 7, 2023, with 851 comments received.\1\ The
Department summarizes and responds to the public comments in section
III of this preamble, followed by a description of changes made to the
NPRM in this final rule in section IV.
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\1\ Of these 851 comments, 849 comments were available on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> for public inspection. The Department
did not post one comment because it was a duplicate and withdrew
another comment because it contained an inappropriate hyperlink.
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II. Legal Authority
The Department issues this rule pursuant to section 103(g) of the
Immigration and Nationality Act (``INA'' or ``the Act''), 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. Public Comments and Responses
Comments received on the NPRM are organized by topic below. Most
commenters were supportive of the rule, stating, for example, that
administrative closure and termination authority
[[Page 46743]]
would provide adjudicators with needed flexibility to help manage
overburdened immigration court dockets, and that rescinding the AA96
Final Rule's appeal-related provisions would help noncitizens more
effectively present appeals. In contrast, commenters opposing the rule
primarily raised concerns about the administrative closure and
termination provisions, which these commenters believed would
exacerbate the immigration court backlog, needlessly delay proceedings,
and increase incentives for irregular immigration into the United
States. The Department addresses these comments below.
A. Briefing Schedule Changes
Comment: Most commenters expressed support for the proposed rule's
provisions rescinding the AA96 Final Rule's changes to briefing
schedules before the Board and reinstating longstanding consecutive
briefing schedules for noncitizens who are not detained and
simultaneous briefing schedules for detained noncitizens.
In doing so, some commenters also proposed a number of changes to
briefing schedule procedures. First, commenters suggested increasing
the opening briefing schedule from 21 days to 30, 40, or 45 days to
provide noncitizens with additional time to submit their briefs.
Second, for cases involving detained noncitizens, commenters proposed
implementing consecutive rather than simultaneous briefing schedules
or, alternatively, allowing reply briefs as a matter of right, rather
than as permitted after the filing of a motion, to allow the parties to
best address opposing arguments. Third, commenters recommended creating
a presumption to automatically extend the brief filing period for pro
se applicants to the full extended 90-day period. Fourth, commenters
recommended removing the 90-day limit on briefing extensions, stating
that there may be good cause for extending beyond that time limit, in
up to 90-day increments. Lastly, commenters recommended modifying
briefing extension timelines at the Board to ensure meaningful access
to additional preparation time, including by relaxing the standards for
granting second briefing extensions and using the EOIR Courts & Appeals
System (``ECAS'') to streamline extension requests so that they may be
granted more expediently.
Commenters also recommended implementing a ``mailbox rule'' for
paper filings at the immigration courts and the Board, which would
treat a document as filed upon mailing instead of upon arrival or
receipt. Commenters explained that a mailbox rule would help alleviate
burdens on pro se noncitizens filing in paper, particularly when filing
deadlines begin from the date of the immigration judge or Board
decision, which may not reach the noncitizen by mail for several days.
Alternatively, commenters recommended a limited ``mailbox rule,''
whereby use of overnight delivery services or private couriers would
create a presumption that any delivery failure qualifies as an
extraordinary circumstance allowing for late filing.
Commenters opposed to this rule's briefing schedule changes stated
that the AA96 Final Rule's briefing schedule provisions were more
efficient, while still providing for briefing extensions when
warranted.
Response: The Department is finalizing the NPRM's proposed changes
to briefing schedules and extensions without further amendment. The
Department believes that the briefing procedures in this rule--which
recodifies longstanding practices in place prior to the publication of
AA96 Final Rule and which have again been in use since the AA96 Final
Rule was enjoined--allow necessary flexibility for the Board to set a
briefing schedule as appropriate for each appeal in a manner that will
serve both fairness and efficiency interests. See 8 CFR 1003.3(c)(1).
As an initial matter, the Department believes 21 days to be a
generally sufficient baseline, with which parties are familiar, for
submitting initial appeal briefs. This longstanding 21-day filing
timeline allows those parties who are prepared to submit briefing on
schedule to proceed efficiently, while preserving the availability of
briefing extensions when necessary. See BIA Practice Manual ch. 4.7(c)
(Oct. 25, 2023) (``Extensions''). Further, the Department continues to
believe that simultaneous briefing is appropriate in detained cases
given the need for expeditious resolution of such cases implicating
liberty interests. Id.
Additionally, the Department declines to codify procedures allowing
for the filing of reply briefs in detained cases as a matter of right.
Under this rule, in all non-detained cases, appellees are provided the
same time period to file a reply brief that was initially granted to
the appellant to file their brief. See 8 CFR 1003.3(c)(1). For detained
cases, the Board provides a simultaneous 21-day time period for the
submission of briefs. Id. The Department believes that, in such cases,
the simultaneous briefing schedule provides both parties sufficient
opportunity to address any issues needed to be resolved on appeal or to
identify any reasons for opposing the appeal, while balancing the need
to expeditiously resolve the case.
Further, whether briefs are filed consecutively or simultaneously,
the party appealing the immigration judge's decision is tasked with
pointing out factual or legal error in the decision warranting remand
or reversal, while the party opposing the appeal generally argues in
the vast majority of cases that the immigration judge's decision is
correct based on the reasoning contained within that decision. Thus,
the Department does not believe that the arguments in the opposing
party's brief will take the appellant by surprise such that a reply
brief would be needed to fairly resolve the appeal in most instances.
When rare circumstances arise such that the appeal cannot be fairly
adjudicated without additional briefing, in either detained or non-
detained cases, the Department believes that the Board has the
expertise to determine whether additional briefing--including reply
briefing, supplemental briefing, or amicus briefing--is needed to
resolve the appeal in any individual case and the flexibility to
request such briefing. Moreover, the Department believes that the
Board's internal practices and procedures are sufficient to address any
additional briefing issues in each individual case. See generally BIA
Practice Manual chs. 4.6 (``Appeal Briefs''), 4.7 (``Briefing
Deadlines'').
The Department also declines to automatically extend briefing
timelines for pro se noncitizens. Such a provision presents significant
administrability concerns, as many noncitizens are searching for, or
obtain, representation during the initial appeal and briefing time
frame.\2\ Automatically providing an extended briefing timeline would
result in different briefing timelines for noncitizens depending on
whether they obtained counsel before or after briefing schedules were
set. That said, in the event that a pro se noncitizen obtains counsel
subsequent to the briefing schedule being set, then the noncitizen's
counsel may request a briefing extension if needed.
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\2\ The Department is cognizant of the challenges faced by
unrepresented detained noncitizens who wish to file an appeal before
the Board. Accordingly, since 2001, EOIR has operated the BIA Pro
Bono Project to increase pro bono representation for detained
noncitizens whose cases are on appeal. See EOIR, BIA Pro Bono
Project, <a href="https://www.justice.gov/eoir/bia-pro-bono-project">https://www.justice.gov/eoir/bia-pro-bono-project</a>
(explaining that the Pro Bono Project ``continues to provide a
highly valuable service connecting pro se respondents to pro bono
counsel'').
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The Department also declines to remove the 90-day limit on briefing
extensions. The Department believes
[[Page 46744]]
that this longstanding pre-AA96 Final Rule limit ensures that parties
are provided sufficient time to file their briefs, while also helping
ensure that the record on appeal is completed and ready for
adjudication in a reasonable time frame. See, e.g., Board of
Immigration Appeals: Procedural Reforms To Improve Case Management, 67
FR 54878, 54878, 54895 (Aug. 26, 2002) (maintaining the then-existing
90-day Board briefing limits as part of a rule intended to efficiently
``improve the adjudicatory process for the Board'').
However, the rule retains the Board's ability to extend filing
deadlines. See 8 CFR 1003.3(c)(1). Should the Board wish to accept
briefing extension requests via ECAS, as suggested by commenters, then
the Department need not amend the regulations; rather, the Board may
update its procedures within the BIA Practice Manual to implement this
change. See generally BIA Practice Manual chs. 4.6 (``Appeal Briefs''),
4.7 (``Briefing Deadlines''). The rule also preserves the Board's
ability to consider, in its discretion, a brief that has been filed out
of time, as well as to request supplemental briefing from the parties
after the expiration of the briefing deadline. 8 CFR 1003.3(c)(1). The
Department believes that both the regulations and the Board's
application of the regulations through internal practices and
procedures allow the parties sufficient opportunity to submit relevant
arguments via briefing before the Board.
Additionally, comments regarding a ``mailbox rule'' for paper
filings before the immigration courts or the Board are outside of the
scope of this rulemaking. This rule focused on the changes made by the
AA96 Final Rule to briefing schedules and whether to retain, modify, or
rescind those specific provisions. See 88 FR at 62254. However, the
Department is always considering potential regulatory changes to
improve EOIR processes and will take commenter suggestions regarding a
``mailbox rule'' under advisement.
In response to commenters in favor of the AA96 Final Rule's
briefing schedule provisions, the Department believes that this rule's
briefing schedule provisions better balance efficient appeal processing
with procedural fairness. In general, the Department does not
anticipate that retaining the longstanding pre-AA96 Final Rule briefing
schedules will draw out or lengthen proceedings, but rather will ensure
that parties have adequate time to prepare and file briefs before the
Board that will best serve Board members in their adjudications.
The Department also notes that maintaining these longstanding
briefing schedules strikes an appropriate balance of providing the
parties adequate time for initial briefing, while preserving the
opportunity for briefing extensions, as well as the Board's ability to
request additional briefing, if such extensions or additional briefing
would aid in the ultimate resolution of the case. Further, maintaining
these longstanding briefing schedules and procedures may, for example,
allow parties to have adequate time to obtain counsel for assistance
with the appeal or to submit more detailed briefs that adequately
address complex issues. Both of these factors may ultimately increase
the efficiency with which Board members can issue a decision in a case
because the issues may be more clearly articulated and thoroughly
presented. Cf. EOIR DM 22-01, Encouraging and Facilitating Pro Bono
Legal Services 1 (Nov. 5, 2021) (``Competent legal representation
provides the court with a clearer record and can save hearing time
through more focused testimony and evidence, which in turn allows the
judge to make better-informed and more expeditious rulings.'').
In sum, the Department believes that the rule's retention of the
longstanding briefing procedures before the Board strikes an
appropriate balance between the need for expeditious resolution of
cases, while maintaining procedural fairness for all parties seeking
appellate review before the Board. Accordingly, the Department declines
to make further amendments to the regulatory provisions governing
briefing before the Board.
B. Administrative Closure
1. Authority for Administrative Closure
Comment: Some commenters claimed that this rule's administrative
closure provisions are unlawful, stating that administrative closure is
not authorized by statute. Commenters favorably cited language from the
now-overruled decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G.
2018), as support for their position that there is no statutory basis
for administrative closure in the INA. Commenters further stated that
any regulatory administrative closure provision would be contrary to
statutory language providing procedures for the completion of removal
proceedings, citing INA 240, 8 U.S.C. 1229a. Another commenter stated
that, to be consistent with the INA, administrative closure authority
should be limited to cases where the noncitizen has a pending
application outside of EOIR which, if granted, would obviate the need
for removal proceedings.
Response: Authorizing administrative closure falls within the
Attorney General's broad authority under the INA. The INA not only
directs immigration judges to adjudicate cases and sets forth some
specific procedures for adjudicating removal proceedings, it also
charges the Attorney General with supervising that adjudication system,
see INA 240, 8 U.S.C. 1229a; INA 103(g)(1), 8 U.S.C. 1103(g)(1), and
authorizes the Attorney General, broadly, to ``establish such
regulations . . . as the Attorney General determines to be necessary''
for carrying out his duties in implementing the INA, see INA 103(g)(2),
8 U.S.C. 1103(g)(2). That authority comfortably encompasses
establishing additional procedural rules that the Attorney General
deems will promote the fair and efficient functioning of the
adjudication system, especially on the many procedural issues that the
INA itself does not address. Indeed, the Attorney General for decades
has exercised that authority in myriad ways, including, for example,
providing for Board review of most immigration judge decisions, see
generally 8 CFR 1003.1(b) (``Appellate jurisdiction''), and generally
conferring on adjudicators the power to take any action ``appropriate
and necessary'' for the disposition or alternative resolution of a
case, as consistent with the law, id. Sec. Sec. 1003.1(d)(1)(ii),
1003.10(b); see also Miscellaneous Amendments to Chapter, 23 FR 2670,
2671 (Apr. 23, 1958) (original 1958 regulatory provision authorizing
EOIR adjudicators to exercise their discretion as may be ``appropriate
and necessary'' for the disposition of a case). Given the Attorney
General's clear and broad authority, and the long history of its
exercise to establish similar procedural rules, the only question is
whether Congress precluded the Attorney General from using this
authority to provide for administrative closure. Congress has not
precluded the Attorney General from doing so.
In a more specific way, too, history confirms that the Attorney
General's broad authority under the INA encompasses administrative
closure. Since at least the 1980s, immigration judges and the Board
have exercised their authority, where appropriate, to use
administrative closure as a docketing tool. See Arcos Sanchez v. Att'y
Gen., 997 F.3d 113, 116-17 (3d Cir. 2021); see also 88 FR 62243-46
(describing the history of administrative closure). And in the HSA,
Congress specified that the Attorney General has ``such authorities and
functions under
[[Page 46745]]
[the INA] relating to the immigration and naturalization of
[noncitizens] as were exercised by [EOIR], or by the Attorney General
with respect to [EOIR]'' prior to the HSA. HSA 1102, 116 Stat. at 2274;
INA 103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521. The HSA
confirms that the Attorney General may continue to provide for the
administrative closure authority that EOIR adjudicators in fact
exercised prior to the HSA.
Administrative closure is also a reasonable exercise of the
Attorney General's authority to ``establish such regulations . . . as
[he] determines to be necessary'' for carrying out his duties in
overseeing the EOIR adjudication system, see INA 103(g)(2), 8 U.S.C.
1103(g)(2). Administrative closure authority ``is not limited to the
immigration context'' and is ``utilized throughout the Federal court
system, under a variety of names, as a tool for managing a court's
docket.'' Matter of Avetisyan, 25 I&N Dec. 688, 690 n.2 (BIA 2012). And
immigration adjudicators, like other adjudicators, can in appropriate
circumstances use administrative closure to promote the fair and
efficient management of their dockets. For example, an immigration
judge or an Appellate Immigration Judge may determine that a case may
be most efficiently and fairly completed by administratively closing
the case to first allow U.S. Citizenship and Immigration Services
(``USCIS'') to adjudicate a relief application, which, if granted, may
provide the noncitizen with legal status or some other basis that would
prevent enforcing an order of removal, thus eliminating the need for
further removal proceedings, reducing the immediate need to conclude
removal proceedings, or otherwise narrowing the issues before EOIR. As
a result, EOIR adjudicators, and EOIR more generally, can direct
resources to other cases ripe for adjudication. Commenters have not
identified anything that would withdraw administrative closure from the
measures that the Attorney General may determine are ``necessary.''
Administrative closure, like the other actions described previously, is
a regulatory action the Attorney General has determined should be
available for adjudicators to use, to fulfill their statutory
responsibilities under the INA and in accordance with due process.
The Department also does not agree that, to be consistent with the
INA, administrative closure authority should be limited to cases where
the noncitizen has a pending application outside of EOIR, which, if
granted, would obviate the need for removal proceedings. Commenters did
not point to any provision in the INA that would suggest that
administrative closure should be limited in such a way. The Department
has previously entered into judicially approved, binding settlement
agreements and issued numerous regulations, in compliance with the INA,
that provide for administrative closure in a variety of specified
situations. See generally 88 FR 62244-45. Further, EOIR adjudicators
have long had authority to use administrative closure to pause removal
proceedings to give noncitizens an opportunity to pursue newly
available pathways 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 of 1986).
Contrary to any commenter suggestions otherwise, administrative
closure does not prevent the ultimate adjudication of removal
proceedings, as the case remains pending with EOIR while
administratively closed. See, e.g., 8 CFR 1003.18(c) (defining
administrative closure as the ``temporary suspension of a case'').
Rather, administrative closure temporarily pauses the case until a
party files a motion to recalendar the case and the motion is granted.
Once recalendared, the case is completed through an order of relief,
removal, termination, or dismissal, as warranted by the circumstances
of each case. See, e.g., Arevalo v. Barr, 950 F.3d 15, 18 (1st Cir.
2020) (noting that once the Board recalendared, the case was ``awaiting
only the entry of a final decision by the BIA'').
Additionally, commenters' reliance on a portion of an Attorney
General decision, Matter of Castro-Tum, for the proposition that
administrative closure is unauthorized by statute is misplaced. See 27
I&N Dec. at 283 (citing Diaz-Covarrubias v. Mukasey, 551 F.3d 1114,
1118 (9th Cir. 2009); Hernandez v. Holder, 579 F.3d 864, 877 (8th Cir.
2009), vacated in part, 606 F.3d 900 (8th Cir. 2010); Gonzalez-Caraveo
v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018); Vahora v. Holder, 626
F.3d 907, 917 (7th Cir. 2010)). The Attorney General has overruled
Matter of Castro-Tum in its entirety. See Matter of Cruz-Valdez, 28 I&N
Dec. 326, 328-29 (A.G. 2021) (indicating that because various courts of
appeals had rejected the reasoning in Matter of Castro-Tum and because
that decision departed from long-standing practice, the Attorney
General found it appropriate to overrule Matter of Castro-Tum in its
entirety).
Even taken on its own terms, Matter of Castro-Tum did not suggest
that administrative closure is unauthorized by statute. First, although
that decision significantly limited EOIR adjudicators' administrative
closure authority, it did not call into question the validity of
regulatory provisions expressly authorizing administrative closure. 27
I&N Dec. at 272 (holding that EOIR adjudicators may ``only
administratively close a case where a previous regulation or a previous
judicially approved settlement expressly authorizes such an action'').
Second, none of the four Federal courts of appeals cases cited by
Matter of Castro-Tum determined that administrative closure was a
statutorily invalid procedural tool in immigration court. See Diaz-
Covarrubias, 551 F.3d at 1116-20; Gonzalez-Caraveo, 882 F.3d at 891-94;
Vahora, 626 F.3d at 914-19; Hernandez, 579 F.3d at 877. Rather, each of
these decisions addressed the narrow jurisdictional question of whether
courts had authority to review an immigration court's denial of
administrative closure. All four cases simply referenced, in dicta, the
INA's silence on administrative closure in determining whether the INA
included statutory language that would provide a meaningful standard by
which to review claims challenging administrative closure decisions.
See Diaz-Covarrubias, 551 F.3d at 1118; Gonzalez-Caraveo, 882 F.3d at
891-94; Vahora, 626 F.3d at 914-19; Hernandez, 579 F.3d at 877-78.
Notably, none of these decisions questioned the availability of
administrative closure as an immigration court procedural tool. See
Diaz-Covarrubias, 551 F.3d at 1116-20; Gonzalez-Caraveo, 882 F.3d at
889-94; Vahora, 626 F.3d at 914-21; Hernandez, 579 F.3d at 877-78. For
example, in Vahora, the court held EOIR's administrative closure
determinations to be unreviewable as ``a procedural device, not unlike
the myriad other procedural devices employed by quasi-judicial bodies
in administrative agencies and in the Executive Office for Immigration
Review in particular.'' 626 F.3d at 917.
For these reasons, contrary to commenter claims, administrative
closure falls squarely within the authority the INA grants to the
Attorney General to establish regulations deemed necessary to
administering the immigration laws, INA 240, 8 U.S.C. 1229a; and no
provision of the INA prohibits the Attorney General from exercising his
broad authority to provide for administrative closure by regulation.
Comment: One commenter expressed that EOIR adjudicators should not
take
[[Page 46746]]
on prosecutorial discretion functions by determining which cases should
be adjudicated and which should not, citing separation-of-function
principles. Separately, another commenter claimed that the rule would
allow immigration judges to unilaterally decline to adjudicate cases
rather than ruling on all cases brought before them, which the
commenter claimed violates separation of powers.
Response: The Department disagrees with commenter assertions that
this rule would raise concerns by allowing EOIR adjudicators to decline
to adjudicate cases or exercise prosecutorial discretion functions
belonging to DHS. The Department is cognizant of and respects the
different roles and responsibilities of DHS and EOIR adjudicators in
removal proceedings, see 88 FR at 62258, and this rule neither alters,
impacts, nor diminishes DHS's prosecutorial authority or discretion,
nor does the rule authorize immigration judges or Appellate Immigration
Judges to unilaterally decline to adjudicate cases, as administratively
closed cases still remain pending on EOIR's docket, without actively
drawing resources, until a case becomes ripe for adjudication and a
decision is issued, see id. at 62264-65 (explaining that the 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'').
DHS ``exercises its prosecutorial discretion when it decides
whether to commence removal proceedings and what charges to lodge
against a respondent.'' Matter of Avetisyan, 25 I&N Dec. at 694 (citing
Heckler v. Chaney, 470 U.S. 821, 831 (1985) and Wayte v. United States,
470 U.S. 598, 607 (1985)). This rule does not impede, preclude, or
alter DHS's authority or ability to initiate proceedings in the
exercise of prosecutorial discretion or authority. Once DHS decides to
institute proceedings, that decision is not reviewable by an EOIR
adjudicator. Id.; see also Matter of Bahta, 22 I&N Dec. 1381, 1391 (BIA
2000). However, after DHS exercises its authority to initiate
proceedings and jurisdiction over removal proceedings vests with the
immigration judge, the immigration judge has the authority to regulate
the proceedings, consistent with applicable law and regulations. Matter
of Avetisyan, 25 I&N Dec. at 694; 8 CFR 1003.14(a) (stating that
jurisdiction vests when a charging document is filed with the
immigration court), 1240.1(a)(iv) (providing immigration judges with
the authority to take any action ``consistent with applicable law and
regulations as may be appropriate''), 1240.1(c) (providing immigration
judges with the authority to ``regulate the course of the hearing'').
Further, EOIR does not use administrative closure as a
prosecutorial function. As stated previously, administrative closure
has been ``utilized throughout the Federal court system, under a
variety of names, as a tool for managing a court's docket,''
underscoring that the use of administrative closure is not a
prosecutorial tool and therefore does not violate separation-of-
functions principles. See Matter of Avetisyan, 25 I&N Dec. at 690 n.2.
Administrative closure is a docket-management tool for EOIR
adjudicators, separate and distinct from DHS's prosecutorial discretion
authority, and is one such way for EOIR adjudicators to manage and
regulate proceedings and, more broadly, an immigration judge's calendar
or the Board's docket. Accordingly, the rule includes guidelines for
specific docket-management tools that are available to EOIR
adjudicators as necessary or appropriate to improve the fairness and
efficiency of proceedings before them. For example, administrative
closure is a tool that can be used, where necessary or appropriate, to
temporarily suspend a case that may not be ripe for active
adjudication; where there may be pending alternative resolutions to
removal that, once resolved, could obviate the need for further
proceedings or significantly narrow the issues before EOIR, thus
improving fairness and reducing the resources required to ultimately
resolve the case; or where the above circumstances are not present but
one party requests the case be removed from the active docket or
calendar and the other party joins in the request or affirmatively
indicates its non-opposition.
For those cases that are administratively closed, either party may
file a motion to recalendar, and where the EOIR adjudicator determines
that the case should be recalendared, proceedings will be put back on
the active docket or calendar. See 8 CFR 1003.1(l)(2), 1003.18(c)(2).
Thus, while administrative closure may impact the course of
proceedings, it does not impact DHS's ability to initiate proceedings,
and therefore, does not amount to an exercise of prosecutorial
discretion by an EOIR adjudicator. See Matter of Avetisyan, 25 I&N Dec.
at 694 (``Although 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.'').
In addition, this rulemaking does not infringe on separation of
powers. The rule does not impermissibly assign a judicial role to the
Executive Branch because immigration judges and Appellate Immigration
Judges are not part of the Judicial Branch. Rather, they are attorneys
whom the Attorney General appoints as administrative judges within
EOIR, see INA 101(b)(4), 8 U.S.C. 1101(b)(4), and who conduct
administrative adjudications within the Executive Branch. Furthermore,
there continues to be judicial review over EOIR's administrative
adjudications unless otherwise directed by law. See Immigration Court
Practice Manual ch. 1.4(g) (Oct. 25, 2023).
2. Efficiency and Immigration Court Backlog
Comment: Many commenters supported explicitly authorizing
administrative closure by regulation to help ease the immigration court
backlog. Commenters stated that, previously, in cases where noncitizens
were awaiting USCIS processing of an application or benefit request,
those noncitizens would have to appear in immigration court for
multiple master calendar hearings to provide status updates to the
immigration judge. Commenters explained that these immigration court
appearances were an inefficient use of resources for noncitizens,
attorneys, and immigration judges. Thus, commenters stated that the
rule's administrative closure provisions would increase efficiency by
avoiding unnecessary immigration court hearings while awaiting USCIS
adjudication of applications.
In contrast, other commenters opposed codifying administrative
closure authority, claiming that the use of administrative closure only
serves to delay proceedings because it does not dispose of a case on
the merits. Commenters stated that immigration judges should instead
focus on concluding removal proceedings through a substantive order of
relief or removal. Commenters expressed concern that administrative
closure would act as a de facto amnesty provision, creating a permanent
class of noncitizens without legal status in the United States, and
would further incentivize illegal migration. To support this
contention, commenters pointed to statistics on existing
administratively closed cases that have been closed for many years.
These commenters stated that, instead of providing for administrative
closure, the Department
[[Page 46747]]
should have considered the use of status dockets, continuances, and
limited termination authority, which commenters stated would be more
appropriate tools when noncitizens are waiting for, or have obtained,
relief outside of EOIR.
Response: The Department believes that the rule's provisions
explicitly codifying administrative closure authority help promote the
efficient use of EOIR resources, including valuable docket time. As
explained in the NPRM, requiring immigration judges or Appellate
Immigration Judges to adjudicate cases where the noncitizen in
proceedings has a pending application or petition with USCIS is often
an inefficient use of resources, as many of these noncitizens may
obtain legal status that obviates the need for further removal
proceedings. See generally 88 FR at 62257 (explaining that there are
scenarios where ``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''). When administratively closed cases are removed
from the immigration court's active calendar or the Board's docket,
EOIR adjudicators can then reallocate that docket time to cases ripe
for adjudication, including those where DHS has prioritized the removal
of the noncitizen or where there are no pending alternative resolutions
to removal, thereby helping to reduce the overall number of cases
pending before the immigration courts and the Board. Further, once
administratively closed cases are recalendared, they often require
fewer resources to resolve, as they are often near final completion due
to the narrowing of issues resulting from any external adjudications,
and for the same reasons, often have a reduced need for any additional
continuances.
Moreover, alternatives to administrative closure, including
continuances, status dockets, and motions to reopen, are comparatively
less efficient than administrative closure in many cases. See, e.g.,
id. at 62257. For example, while a relief application is pending with
USCIS, the use of multiple continuances in removal proceedings would
require repeatedly rescheduling hearings as each successive continuance
is granted. See Matter of Hashmi, 24 I&N Dec. 785, 791 n.4 (BIA 2009)
(noting that administrative closure can ``avoid the repeated
rescheduling of a case that is clearly not ready to be concluded'').
Status dockets may also be less efficient in such cases, as the
immigration court would be spending valuable time repeatedly requesting
status updates for the case, rather than considering whether the case
is ripe for adjudication once a party moves to recalendar proceedings
after any outside actions have been completed.
Similarly, if the EOIR adjudicator was required to complete
adjudication of removal proceedings while a relief application was
pending with USCIS, the noncitizen might need to file a motion to
reopen the concluded removal proceedings if USCIS ultimately granted
their application. This process would require EOIR adjudicators to
adjudicate the removal proceeding, a potential appeal, and then a
subsequent motion to reopen, which is far less efficient than
administratively closing the proceeding until the USCIS adjudication is
completed. Such efficiency concerns are further supported by the
fairness benefits provided by administrative closure. See 88 FR at
62256 (explaining that, in many circumstances, administrative closure
allows noncitizens who are prima facie eligible for relief to pursue
such relief without threat of immediate removal).
Additionally, the Department believes that administrative closure
furthers finality goals, as it helps ensure that, when necessary or
appropriate, noncitizens are able to pursue options for reasonably
available legal status before removal proceedings are concluded. This
helps ensure that the conclusion of removal proceedings, and any
related appeals, will be the final determination on a noncitizen's
ability to remain in the United States.
Further, the Department rejects commenters' assertion that the use
of administrative closure is inefficient because it delays proceedings
and does not dispose of a case on the merits. As the Department has
explained, administrative closure allows EOIR adjudicators to focus
resources on cases that are ripe for adjudication, including those
cases with no pending alternative resolutions to removal, thereby
improving efficiency in the aggregate. See id. at 62256 (``Efficiency
also encompasses consideration of prioritization and allocation of
resources among different cases.'').
By contrast, commenters opposed to the use of administrative
closure authority described an excessively narrow view of
``efficiency,'' focusing solely on completing some individual removal
proceedings as quickly as possible, with no concern for (1) the
resources needed to facilitate those proceedings on an EOIR
adjudicator's active docket or calendar; (2) whether the noncitizen is
a priority for removal; (3) whether pausing proceedings to allow for
the result of collateral dispositions could obviate the need for
continued proceedings or significantly narrow the issues; and (4)
whether such temporary removal from the active docket or calendar is
necessary or appropriate to the fairness of the proceedings.
Additionally, by primarily focusing on some individual cases in removal
proceedings, these commenters have not accounted for the larger,
systemic efficiencies that administrative closure may create for EOIR
in the aggregate. In the Department's view, focusing docket time and
other resources on actively adjudicating cases ripe for resolution
while cases with other possible resolutions remain pending--like a case
with an outstanding petition or application before USCIS as described
previously--often results in the overall most efficient use of
resources.
Moreover, these regulations do not permit administrative closure to
be used as a de facto ``amnesty'' provision. Rather, they permit
adjudicators to use administrative closure to temporarily remove cases
from EOIR's active docket only until such cases are ripe for
adjudication or resolution. 8 CFR 1003.1(l), 1003.18(c) (defining
administrative closure as ``the temporary suspension of a case'').
While a case is administratively closed, the proceedings remain
pending, and the administrative closure itself confers no status upon a
noncitizen. Administrative closure is solely a procedural tool to
permit the efficient use of resources.
3. General Standards for Administrative Closure
Comment: Commenters provided several suggestions regarding the
general standards for administrative closure. For example, commenters
recommended requiring EOIR adjudicators to grant joint and
affirmatively unopposed motions and removing the provision providing
EOIR adjudicators with the ability to deny such motions based on
unusual, clearly identified, and supported reasons. Commenters were
concerned that EOIR adjudicators would use this exception to improperly
deny such motions when neither party wished to proceed with the removal
proceeding.
Relatedly, commenters recommended that, similar to the proposed
standard governing joint and affirmatively unopposed motions, granting
motions should also be favored when DHS does not respond to a
noncitizen's motion for administrative closure in a timely
[[Page 46748]]
manner. Commenters stated that favoring the grant of a motion when DHS
does not indicate its response would prevent a situation where motions
that would otherwise be granted would remain pending indefinitely due
to DHS's failure to respond.
Response: The regulatory language governing joint and affirmatively
unopposed motions sets forth that EOIR adjudicators shall grant motions
to administratively close or recalendar that have either been filed
jointly by both parties, or filed by one party where the other party
has affirmatively indicated its non-opposition. 8 CFR 1003.1(l)(3),
1003.18(c)(3). EOIR adjudicators may only deny such motions where they
have articulated unusual, clearly identified, and supported reasons for
doing so. Id. The Department declines to remove the exception allowing
an EOIR adjudicator to deny the motion for unusual, clearly identified,
and supported reasons. As explained in the NPRM, EOIR adjudicators are
in the best position to determine how a case should proceed, and there
may be circumstances in which the removal proceeding should continue
despite the parties' motion. See 88 FR at 62260 (explaining that this
exception ``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'' of a joint motion to administratively close
proceedings).
Moreover, the Department does not share commenters' concerns that
EOIR adjudicators would use this exception to improperly deny joint or
affirmatively unopposed motions. The Department expects all of its
adjudicators to make decisions in accordance with the Act and the
regulations, and that they will not improperly deny joint or
affirmatively unopposed motions. 8 CFR 1003.1(d)(1) (``The Board shall
resolve the questions before it in a manner that is timely, impartial,
and consistent with the Act and regulations.''); 8 CFR 1003.10(b)
(same). Additionally, there is a presumption of regularity that
attaches to the actions of Government agencies, see United States
Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001), and adjudicators such
as immigration judges are ``assumed to be . . . capable of judging a
particular controversy fairly on the basis of its own circumstances,''
Withrow v. Larkin, 421 U.S. 35, 55 (1975) (internal quotation mark
omitted). Moreover, adjudicators are required to clearly identify and
support the reasons for denying such motions, thereby creating a record
that could be subject to further review.
The Department also declines to treat motions without a DHS
response in the same manner as joint and affirmatively unopposed
motions and declines to expand the termination ground for joint and
affirmatively unopposed motions further. See id. at 62259-60
(explaining the joint and affirmatively unopposed standard). While
joint and affirmatively unopposed motions should generally be granted
in the interests of efficiency given the lack of an adversarial
posture, a lack of DHS response to a motion, alone, is not the same as
DHS's affirmative expression of non-opposition and does not necessarily
convey that DHS maintains no adversarial interest in the case.
Additionally, as this rule does not supplant the immigration
courts' or the Board's procedures for processing motions, the
Department notes that a motion for administrative closure will not
remain pending indefinitely in the event that DHS does not respond.
Rather, as is consistent with EOIR's motions practice, the EOIR
adjudicator will rule upon the motion once any time limits for
responses to motions have passed. See 8 CFR 1003.23(a) (``The
Immigration Judge may set and extend time limits for the making of
motions and replies thereto.''); see also Immigration Court Practice
Manual ch. 5.12 (Oct. 25, 2023) (governing responses to motions); BIA
Practice Manual ch. 5.11 (May 8, 2023) (providing that an opposing
party has 13 days to respond after being served with the motion and
noting that a failure to oppose ``will not necessarily result in a
grant of [the] motion'').
Comment: Commenters recommended that the Department specify that a
motion to withdraw or substitute representation can be filed and
adjudicated while a case remains administratively closed. According to
commenters, current practice requires an administratively closed case
to be recalendared before a motion to withdraw or substitute can be
filed and adjudicated, and then requires the case to be
administratively closed again. Other commenters indicated that
providing clarity on this issue would improve pro bono representation
rates by reducing uncertainty over a representative's ability to move
for withdrawal or substitution without risking premature recalendaring
of an administratively closed case.
Response: In response to comments regarding motions to withdraw or
substitute counsel while a case is administratively closed, the
Department clarifies that the EOIR adjudicator may adjudicate such
motions without recalendaring the case. Additionally, the Department
notes that recalendaring must be upon the motion of a party, and an
immigration judge would not be authorized under this rule to recalendar
sua sponte to adjudicate a motion to withdraw or substitute counsel. 8
CFR 1003.1(l)(2), 1003.18(c)(2) (authorizing EOIR adjudicators to
``recalendar [a] case pursuant to a party's motion to recalendar'').
The Department further notes that motions to withdraw or substitute
counsel should comply with standards for such motions. See Immigration
Court Practice Manual ch. 2.1(b)(3)(B) (June 20, 2023) (motions to
substitute), (C) (motions to withdraw). Consistent with existing
standards, attorneys requesting withdrawal from representation should
provide evidence with their motion that they notified, or attempted to
notify, the noncitizen of the ongoing nature of their proceedings and
any upcoming deadlines or hearings, which would reasonably include an
explanation that their case is administratively closed but may be
recalendared in the future. See id. ch. 2.1(b)(3)(C) (calling for
notification of pending deadlines; the date, time, and place of the
next scheduled hearing; the necessity of meeting deadlines and
appearing at scheduled hearings; and the consequences of failing to
meet deadlines or appear at scheduled hearings). The Department
believes that this rule, which does not impose any limitations on
adjudication of such motions, provides sufficient guidance for counsel
to make determinations about whether to engage in representation.
Comment: Commenters also recommended clarifying that administrative
closure is available to detained noncitizens, who may be pursuing
alternative relief with USCIS.
Response: As an initial matter, the Department notes that the rule,
in general, does not distinguish between detained and non-detained
cases regarding the exercise of administrative closure authority, as
the Department does not believe such an explicit distinction is
necessary. Rather, the rule provides that EOIR adjudicators may, in
their discretion, administratively close cases after consideration of
the totality of the circumstances. See 8 CFR 1003.1(l), 1003.18(c)
(administrative closure standards).
However, after further consideration, the Department is adding an
additional factor--the U.S. Immigration and Customs Enforcement
(``ICE'') detention status of the noncitizen--to the nonexhaustive list
of factors for EOIR
[[Page 46749]]
adjudicators to consider as part of the totality of the circumstances
when evaluating motions to administratively close or recalendar a case.
See id. Sec. 1003.1(l)(3)(i)(H) (administrative closure before the
Board), 1003.18(c)(3)(i)(H) (administrative closure before immigration
judges), 1003.1(l)(3)(ii)(H) (recalendaring before the Board),
1003.18(c)(3)(ii)(H) (recalendaring before immigration judges).
Accordingly, where relevant and in addition to other factors applicable
to a particular case, EOIR adjudicators must consider a noncitizen's
ICE detention status when making a determination about whether to
administratively close or recalendar a case.
Several considerations warrant adding this factor for EOIR
adjudicators to consider when adjudicating motions to administratively
close or recalendar cases where the ``totality-of-the-circumstances''
standard applies. See infra section IV.A of this preamble (providing
additional explanation of this change). Administrative closure in cases
involving a detained noncitizen may prolong the noncitizen's detention,
imposing a greater burden on the noncitizen and additional costs to the
Government during the pendency of a case. For those reasons, detained
cases present a heightened need for stringent monitoring and continuous
reevaluation regarding whether a case is ready to proceed to minimize,
to the greatest extent possible, the risk of lengthier than necessary
detention and the resulting costs. Accordingly, although the Department
reiterates that no single factor is dispositive or more heavily
weighted than others in adjudicating a motion to administratively close
or recalendar a case, see 8 CFR 1003.1(l)(3), 1003.18(c)(3), the fact
that a noncitizen is detained in ICE custody will generally weigh
against the appropriateness of administrative closure. Conversely, for
detained cases that are already administratively closed, the
noncitizen's detention status will generally weigh in favor of
recalendaring in order to resume proceedings. In most detained cases,
granting continuances as needed while maintaining the case on--or
returning the case to--the active docket will be the most appropriate
course of action.
That said, this rule does not expressly preclude the administrative
closure of a case involving a noncitizen in ICE detention. Again,
because a noncitizen's status in ICE detention is not a dispositive
factor, there may be some cases where administrative closure is
necessary or appropriate despite the noncitizen's detention in ICE
custody. As explained below, see infra section IV.A of this preamble,
such circumstances may include, for example, permitting a detained
noncitizen to pursue available relief with USCIS, such as a Form I-
601A, Provisional Unlawful Presence Waiver, or to permit evaluations or
treatment related to mental competency concerns. Moreover, the
Department is cognizant that there may be unique or compelling
circumstances warranting the administrative closure of a case involving
a noncitizen in ICE detention based on the totality of the
circumstances. Though the Department anticipates that such compelling
circumstances will be rare, the Department believes that EOIR
adjudicators have the expertise and judgment to evaluate the individual
facts and circumstances in each case, including in cases where
noncitizens are in ICE detention, to identify whether administrative
closure is necessary or appropriate in that particular case.
In sum, the Department believes that the ICE detention status of a
noncitizen is a crucial factor for EOIR adjudicators to carefully
evaluate when considering a motion to administratively close or
recalendar a case. Adding ICE detention status as an explicit factor
for EOIR adjudicators to consider when applying the ``totality-of-the-
circumstances'' standard ensures that detained cases will continue to
be monitored in the most appropriate fashion, while maintaining EOIR
adjudicator discretion to administratively close detained cases in the
limited scenarios where it may be appropriate.
Comment: Commenters recommended clarifying that both written and
oral motions for administrative closure are acceptable. In addition,
one commenter raised concerns about a lack of guidance distinguishing
when administrative closure or discretionary termination should be
used.
Response: With regard to written and oral motions, the Department
concludes that the proposed regulatory text is sufficient as written to
make clear that an administrative closure motion need not take a
particular form and can therefore include both written and oral
motions. See 8 CFR 1003.1(l)(1) (``Board members may, in the exercise
of discretion, administratively close a case upon the motion of a party
. . . .''), 1003.18(c)(1) (``An immigration judge may, in the exercise
of discretion, administratively close a case upon the motion of a party
. . . .''). If the Department had intended to permit only written
motions, the proposed regulatory text would have explicitly stated that
limitation.
In response to a commenter's request to provide EOIR adjudicators
with more guidance on the differences between administrative closure
and termination, the Department believes the rule provides clear
standards for the applicability of both administrative closure and
termination. See generally 8 CFR 1003.18(c), 1003.18(d). The Department
notes that there may be limited circumstances where both options are
available in a particular case, namely when a noncitizen is pursuing
outside relief with USCIS. Compare 8 CFR 1003.18(c)(3)(i)(D)
(administrative closure factor requiring demonstrating a likelihood of
success on outside relief, but not requiring a filing with USCIS), with
8 CFR 1003.18(d)(1)(ii)(B) (discretionary termination provision
requiring a prima facie showing on outside relief, and requiring a
filing with USCIS).
For example, if the noncitizen is seeking discretionary
termination, has a pending filing with USCIS, and is prima facie
eligible, the adjudicator may still deny termination as a matter of
discretion, but, depending on the individual facts and circumstances of
the case, may determine that administrative closure is more
appropriate. Because the Department believes that adjudicators are in
the best position to determine which procedural tool is most
appropriate in a particular case, the Department does not wish to
constrain the EOIR adjudicator's discretion, beyond what is already
delineated in this rule, by dictating which procedural tool may be
necessary or appropriate in any individual case. See id. Sec.
1003.1(d)(1)(ii) (requiring adjudicators to use their ``independent
judgment and discretion'' to resolve cases before them), 8 CFR
1003.10(b) (same); see also Matter of Avetisyan, 25 I&N Dec. at 695
(explaining that the decision to administratively close proceedings
``involves an assessment of factors that are particularly relevant to
the efficient management of the resources of the Immigration Courts and
the Board,'' which falls squarely within the duties of EOIR
adjudicators).
However, as explained further in section III.C.4 of this preamble,
the Department has provided additional guidance on this discretionary
termination ground that the Department believes will better assist EOIR
adjudicators in weighing whether administrative closure or termination
is most appropriate if both tools are potentially available in a
particular case. See 8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii). For
example, the rule now includes a requirement that the noncitizen file
any associated petition,
[[Page 46750]]
application, or other action with USCIS, with limited exception, before
discretionary termination may be granted, which is not required for the
similar administrative closure factor. See id. Sec. Sec.
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). Additionally, the final rule
clarifies that EOIR adjudicators do not have sua sponte authority to
grant termination and must consider the basis for any opposition to
termination raised by a party, which will also help EOIR adjudicators
to determine whether termination, as opposed to administrative closure,
is the most appropriate option if both tools are available in the case.
See id. Sec. Sec. 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
4. Totality-of-the-Circumstances Factors for Administrative Closure
Comment: Numerous commenters raised concerns with specific factors
being dispositive to a request for administrative closure.
Response: As a general matter, the Department first emphasizes that
the proposed administrative closure factors are encompassed within a
broader totality-of-the-circumstances analysis, and no single factor is
dispositive. To the extent that commenters raised concerns with
specific factors included in the rule, the Department notes that the
totality analysis allows adjudicators to consider all relevant factors
holistically. For example, the totality analysis allows for the
adjudicator to consider and weigh relevant factors, as appropriate,
given the particular facts of a given case, including parties'
arguments and evidence on how much weight to give a certain factor or
why a certain factor may be outweighed by other factors.
Fundamentally, the factors enumerated in the rule, along with any
other relevant considerations, are intended to elicit evidence relevant
to answering straightforward questions, such as: would administrative
closure efficiently and fairly help a case reach its ultimate
resolution or alternative disposition? See 8 CFR 1003.1(l)(3)(i)(A) and
(B), (G) and (H), 1003.18(c)(3)(i)(A) and (B), (G) and (H). Is there an
outside application, petition, or action that needs to be adjudicated
to determine if further removal proceedings are warranted? See id.
Sec. Sec. 1003.1(l)(3)(i)(C), 1003.18(c)(3)(i)(C). If so, how likely
is the noncitizen to succeed on such a petition, application, or other
action? See id. Sec. Sec. 1003.1(l)(3)(i)(D), 1003.18(c)(3)(i)(D). And
is the noncitizen being diligent in pursuing such petition,
application, or action? See id. Sec. Sec. 1003.1(l)(3)(i)(F),
1003.18(c)(3)(i)(F). The Department believes the factors enumerated in
the rule help provide EOIR adjudicators with guidance to answer such
questions. Commenters' concerns regarding each of the specific factors
will be addressed in greater detail elsewhere in this section of this
preamble.
Comment: Commenters provided a number of suggested revisions to the
proposed administrative closure factors. One commenter recommended
modifying the ``reason administrative closure is sought'' factor to
explicitly state that a noncitizen's employment authorization is a
valid consideration for the adjudicator. The commenter explained that
employment authorization considerations should weigh in favor of
administrative closure when a noncitizen has an application pending
with EOIR that serves as the basis for their employment authorization.
Commenters noted that, in this situation, dismissing or terminating the
noncitizen's proceedings can withdraw the underlying pending
application for relief on which the noncitizen's employment
authorization eligibility is based.
Response: The Department declines to explicitly include employment
authorization eligibility as a factor for administrative closure. The
Department believes that the totality-of-the-circumstances analysis
broadly covers any relevant considerations EOIR adjudicators may
assess, and noncitizens may raise such issues identified by commenters
if they believe they are relevant to an administrative closure
determination. This rule does not preclude EOIR adjudicators from
considering employment authorization eligibility as part of the
totality of the circumstances for administrative closure where relevant
to a particular case. However, the Department notes that employment
authorization does not constitute relief, protection, lawful status,
deferred action, or similar benefits that would typically have any
bearing on removability or relief from removability.
Comment: Commenters also recommended broadening the factor focusing
on ``any requirement that a case be administratively closed in order
for a petitioner, application, or other action to be filed with, or
granted by DHS.'' Commenters recommended broadening this to include any
outside agency. Commenters explained that noncitizens may be pursuing
collateral relief with agencies other than DHS, and that administrative
closure should be available in such instances. Other commenters stated
that this factor should clarify that administrative closure is
available even when it is not required for USCIS to adjudicate a
specific application.
Response: The Department declines to broaden the factor focusing on
any ``requirement that a case be administratively closed in order for a
petition, application, or other action to be filed with, or granted by,
DHS'' to include any outside agency, and not just DHS. This factor is
intended to include situations similar to the I-601A, Application for
Provisional Unlawful Presence Waiver, where the regulations require
administrative closure as a prerequisite to consider that type of
waiver. Commenters did not provide, and the Department is unaware of,
any specific examples of other entities or agencies where
administrative closure is a prerequisite for the petition, application,
or other action to be considered or granted.
Lastly, in response to comments stating that administrative closure
should be available even when not required for USCIS to adjudicate a
specific application, the Department notes that EOIR adjudicators are
permitted to administratively close a case when necessary or
appropriate, considering the totality of the circumstances, including
all relevant factors. 8 CFR 1003.1(d)(1)(ii) (authority of Board),
(l)(3) (general administrative closure standards for Board), 1003.10(b)
(authority of immigration judges), 1003.18(c)(3) (general
administrative closure standards for immigration judges). Thus, the
rule does not limit administrative closure in the way commenters
suggest, and the Department declines to make any further changes to
this specific factor relevant to DHS petitions, applications, or other
actions.
Comment: Regarding the ``likelihood of success'' factor, commenters
stated that immigration judges should not be required to consider the
likelihood of success of any relief outside of EOIR when determining
whether to grant administrative closure, as that ultimate relief
determination is made by another adjudicative body, and any initial
determination by an immigration judge would be speculative. Instead,
one commenter recommended focusing this factor simply on whether the
noncitizen filed their application with USCIS. Other commenters
recommending retaining, but modifying, this ``likelihood of success''
factor to focus on the likelihood of ``eligibility'' or ``prima facie
eligibility'' for relief before USCIS, rather than a likelihood of
``success.'' These commenters believed that such a change would better
focus on a noncitizens' prima facie eligibility
[[Page 46751]]
for relief, and not whether they would ultimately prevail before USCIS.
Additional commenters stated that, while EOIR adjudicators may consider
the likelihood of success on any relief outside of EOIR when
determining whether to grant administrative closure, this factor should
not be relied upon to deny administrative closure. Similarly, another
commenter stated that certain evidence, such as bona fide
determinations made by USCIS, should be dispositive of this factor,
although not required.
Additionally, one commenter recommended explicitly stating that
applications filed on behalf of another, such as under the Central
American Minors (``CAM'') program, should be considered under the
``likelihood of success'' factor.
Response: Regarding concerns about the factor addressing the
likelihood of success on a petition, application, or other action
outside of EOIR, 8 CFR 1003.1(l)(3)(i)(D), 1003.18(c)(3)(i)(D), the
Department first notes that this factor has long existed in
administrative closure jurisprudence. See Matter of Avetisyan, 25 I&N
Dec. at 696. Accordingly, as this factor has long been relevant to the
determination of whether to grant or deny a request for administrative
closure, the Department declines to preclude EOIR adjudicators from
considering the ``likelihood of success'' factor as part of the
totality of the circumstances in a decision denying administrative
closure, as commenters suggested. Moreover, the Department believes
that this factor will help ensure that administrative closure is
reserved for cases with a realistic possibility of relief outside of
EOIR and is not used as a tool to delay removal proceedings. In
practice, this factor can be used to distinguish cases where potential
relief is clearly unavailable or so speculative that administrative
closure is unwarranted. See, e.g., id. (explaining that administrative
closure is not appropriate if, for example, ``the request is based on a
purely speculative event or action (such as a possible change in a law
or regulation); an event or action that is certain to occur, but not
within a period of time that is reasonable under the circumstances (for
example, remote availability of a fourth-preference family-based visa);
or an event or action that may or may not affect the course of [a
noncitizen's] immigration proceedings (such as a collateral attack on a
criminal conviction)''). Accordingly, the Department declines to modify
the ``likelihood of success'' factor to likelihood of ``eligibility''
or ``prima facie eligibility'' as commenters suggested. In retaining
this factor, the Department also generally notes that no factor alone
is dispositive, and the consideration of this factor is not intended to
be a full adjudication of the merits of the outside relief. Rather, the
rule instructs adjudicators to consider the likelihood of success
outside of EOIR along with any other relevant factors in the totality
of the circumstances.
Furthermore, the Department also declines to make any specific
evidence dispositive of this factor, such as bona fide determinations
by USCIS. Although such evidence may often weigh heavily in favor of
this factor, the Department does not believe it should be treated as
dispositive, and notes that the weight given to this factor will be
dependent upon a totality analysis. See generally Matter of Interiano-
Rosa, 25 I&N Dec. 264, 265 (BIA 2010) (``Immigration Judges have broad
discretion . . . to admit and consider relevant and probative
evidence.'').
In response to commenters' concerns regarding the applicability of
the ``likelihood of success'' factor to the CAM program, the Department
clarifies that adjudicators may consider any petition, application, or
other action outside of EOIR proceedings, which can include programs
such as CAM. The totality analysis would allow the adjudicator to
consider all relevant considerations related to such a program,
including whether the noncitizen would likely succeed in qualifying for
such a program and what effects such a program would have on the
noncitizen's removal proceeding, among others.
Comment: With regard to the anticipated duration factor, commenters
recommended explicitly stating that adjudicatory timelines or delays at
USCIS should not be considered, as those are outside the control of the
noncitizen. Other commenters recommended omitting this factor
altogether, claiming that the length of administrative closure is
outside of a noncitizens' control when it involves waiting on another
adjudicative agency. Another commenter recommended making explicit that
administrative closure is appropriate to await visa availability, which
may otherwise be viewed as a negative under this factor.
Response: After further consideration, the Department declines to
add additional language to the regulatory text for the ``anticipated
duration'' factor, or to remove this factor altogether. Despite
commenter suggestions, the Department has decided against adding
language explicitly barring EOIR adjudicators from considering
adjudicatory timelines or delays at USCIS. As written, the
``anticipated duration'' factor is a longstanding consideration
imported from Matter of Avetisyan, 25 I&N Dec. at 696.
The Department acknowledges that the NPRM preamble explained that
DHS adjudication timelines should not be considered as a negative
factor weighing against administrative closure. See 88 FR at 62261
(``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.''); 8 CFR 1003.1(l)(3)(i)(E), 1003.18(c)(3)(i)(E)
(anticipated duration). However, the Department does not believe it is
appropriate to foreclose all consideration of USCIS adjudicatory
timelines under this factor, and therefore declines to remove or
further limit this provision. For example, remote visa availability may
weigh against administrative closure if visa availability is so distant
as to be speculative, while an otherwise ready-to-adjudicate
application merely waiting on USCIS processing may weigh in favor of
administrative closure, despite a potentially lengthy processing time.
See, e.g., Matter of Avetisyan, 25 I&N Dec. at 696 (explaining that
administrative closure was not appropriate when an event or action ``is
certain to occur, but not within a period of time that is reasonable
under the circumstances (for example, remote availability of a fourth-
preference family-based visa)''). More generally, USCIS adjudicatory
timelines will be given appropriate weight depending upon the totality
of the circumstances of each particular case. Accordingly, the
Department also declines to include explicit language stating that
administrative closure is appropriate to await visa availability, or
any other specific adjudication. By not listing specific examples in
the regulatory text, EOIR adjudicators may determine whether
administrative closure is appropriate after consideration of the
individual facts and circumstances of each case.
Comment: Some commenters recommended omitting the factor focusing
on the responsibility of the parties in contributing to any current or
anticipated delays, which commenters believed would be used to fault
noncitizens for delays outside of their control, such as adjudications
with outside agencies or time to obtain counsel.
Response: In response to commenter concerns about the consideration
of parties' contribution to any delays, the
[[Page 46752]]
Department notes that the parties may submit arguments and evidence
explaining any delays or potential delays. For example, a noncitizen
may submit evidence demonstrating that their relief application was not
immediately filed with USCIS because it was particularly complex or
required certain additional supporting evidence. The EOIR adjudicator
may then consider such evidence in the totality of the circumstances.
The Department notes that the NPRM preamble explained that EOIR
adjudicators ``should consider both the noncitizen's and DHS's
responsibility for any delay.'' 88 FR at 62261. Accordingly, the
Department declines to omit this factor altogether from the regulatory
text because whether either party contributed to any delay is relevant
to an EOIR adjudicator's assessment of the totality of the
circumstances.
Comment: Commenters recommended removing the factor focusing on the
ultimate anticipated outcome of the case. Commenters explained that
this factor may fail to consider circumstances, such as prosecutorial
discretion, where administrative closure itself is the ultimate outcome
of the case. Additionally, commenters stated that the term ``case'' is
ambiguous as to whether it refers to removal proceedings before EOIR or
other relief the noncitizen may be pursuing outside of EOIR.
Response: The Department declines to remove the ``ultimate
anticipated outcome of the case'' factor. 8 CFR 1003.1(l)(3)(i)(G),
1003.18(c)(3)(i)(G). This factor is intended to help adjudicators
determine whether administrative closure would ultimately assist in
efficiently concluding removal proceedings. For example, if a case is
administratively closed for the noncitizen to pursue relief that would
result in lawful status if granted, once recalendared, the case would
be able to conclude efficiently by terminating proceedings. See id.
Sec. Sec. 1003.1(m)(1)(i)(D) (requiring termination where the
noncitizen has, since the initiation of proceedings, obtained status),
1003.18(d)(1)(i)(D) (same). In contrast, if the underlying basis for
the administrative closure request would have little to no effect on
the need for continued removal proceedings, then this would weigh
against the administrative closure request, although other potential
options, such as termination or dismissal, may be available. See, e.g.,
8 CFR 239.2(a)(6) (dismissing improvidently issued Notice to Appear).
Additionally, to the extent that DHS requests administrative
closure pursuant to their prosecutorial discretion authority, the
Department notes that such a request would not change the ultimate
anticipated outcome of the case, which ultimately must be resolved
through an order of relief, removal, termination, or dismissal once
recalendared.
Finally, to further clarify, the term ``case'' refers to the
removal proceeding before EOIR. By looking at the ultimate anticipated
outcome of the case before EOIR, this factor is intended to help
adjudicators determine what effect, if any, administrative closure
would have in helping adjudicators ultimately complete removal
proceedings, whether through an order of relief, removal, dismissal, or
termination, as relevant.
5. Specific Calls for Comments
i. Weighing in Favor of Granting Certain Motions for Administrative
Closure
Comment: Commenters were supportive of adding language favoring
granting motions for administrative closure when the noncitizen
demonstrates prima facie eligibility for relief and has demonstrated
reasonable diligence in pursuing such relief. Other commenters went
further, stating that a pending application with USCIS should be a
dispositive factor for granting administrative closure, or that
administrative closure should be generally granted so long as the
noncitizen states which relief they will be pursuing. These commenters
explained that requiring a prima facie eligibility showing was
unnecessary, and particularly burdensome for pro se noncitizens.
Moreover, one commenter suggested that, rather than requiring pro
se noncitizens to demonstrate a reasonable likelihood of success on the
merits--which the commenter stated requires responding to questions of
law--and diligence in pursuing any available relief, EOIR instead
require that pro se noncitizens demonstrate the basis for the petition,
application, or other action and an explanation of the steps that a pro
se noncitizen has pursued or intends to pursue within a reasonable time
of the administrative closure in furtherance of the petition,
application, or other action for adjudication.
Another commenter recommended clarifying that ``reasonable
diligence'' should not consider any adjudicatory delays outside the
noncitizen's control. One commenter requested clarification as to what
would constitute ``reasonably diligent.''
Response: Upon further consideration, including consideration of
the comments received, the Department declines to further amend this
provision to weigh in favor of granting certain motions for
administrative closure, other than joint motions, as set forth in 8 CFR
1003.1(l)(3) and 1003.18(c)(3). The Department does not believe that
any single factor should be dispositive, nor required to be weighed
more heavily than another, in the ``totality-of-the-circumstances''
determination. Rather, the totality determination allows the
adjudicator to consider all relevant factors and weigh them
accordingly. Treating a single factor as dispositive, or requiring it
to be weighed more heavily, would unnecessarily limit adjudicator
discretion to determine the best course of action in each individual
case. See, e.g., Matter of Avetisyan, 25 I&N Dec. at 694 (explaining
that EOIR adjudicators have ``the responsibility to exercise
independent judgment and discretion'' in adjudicating the cases before
them). For example, in many cases, a pending application with USCIS may
ultimately be a determinative factor weighing in favor of
administrative closure while that application is being adjudicated by
USCIS, while in other cases, administrative closure may not be
necessary or appropriate where there is such a pending application with
USCIS.
Because the Department is codifying a totality analysis, wherein
the adjudicator may consider, and weigh accordingly, a noncitizen's
reasonable likelihood of success on the merits and reasonable diligence
in pursuing such relief, rather than ascribing the weight of such
considerations in the rule, the Department declines to further address
concerns related to the ``reasonable likelihood of success'' or
``reasonable diligence'' standards.
ii. Specific Scenarios Allowing Administrative Closure With No Pending
Relief Outside of EOIR
Comment: Some commenters were in favor of adding explicit scenarios
allowing for administrative closure when there is no pending relief
outside of EOIR, which they believed would help provide consistency to
adjudicators. For example, commenters recommended adding the following
non-exclusive scenarios: (1) the noncitizen marries a U.S. citizen and
intends to pursue an I-130 petition followed by adjustment of status or
consular processing; (2) the noncitizen has been a victim of a
qualifying crime for U nonimmigrant status and intends to pursue a law
enforcement certification; (3) the noncitizen is prima facie eligible
for Special Immigrant Juvenile classification (``SIJ'') and intends to
pursue an SIJ predicate order
[[Page 46753]]
in State court; (4) the noncitizen intends to seek mental health
treatment and there is a reasonable possibility that such treatment
could assist with the noncitizen's pursuit of relief from removal; (5)
the noncitizen has suffered abuse in their country of origin but is not
able to discuss the details of the abuse with their attorney, though
the incident could make them eligible for asylum; (6) the noncitizen is
otherwise eligible for cancellation of removal but needs to accrue
additional physical presence; (7) the noncitizen is in withholding-only
proceedings but is not considered a removal priority by DHS; or (8) the
noncitizen believes that they are stateless.
Another commenter stated that limiting administrative closure to
specific scenarios was unnecessary, while another commenter stated that
they did not have concerns with doing so, as long as the scenarios were
not exclusive. Moreover, another commenter recommended clarifying that,
in scenarios where the noncitizen is not pursuing outside relief, any
reasons for requesting administrative closure should be considered.
Response: After further consideration, the Department has decided
against adding explicit scenarios in which administrative closure may
be appropriate outside of a pending relief application. Commenters
provided several examples of scenarios that may warrant administrative
closure, depending on the circumstances of the individual case. EOIR
may, as appropriate, issue further nonregulatory case examples or
training to adjudicators regarding administrative closure and other
docket management tools. However, the Department believes that
retaining the overall totality-of-the-circumstances analysis will best
allow EOIR adjudicators to determine whether a specific request for
administrative closure should be granted. Certain totality factors may
be more relevant than others in a specific case, such as the
speculative nature of the underlying reason for requesting
administrative closure, the diligence in pursuing the underlying
reason, and how success in pursuing the underlying reason would
ultimately affect the pending removal proceeding.
The Department also declines to incorporate the commenter's
suggestion to clarify that any reasons for requesting administrative
closure should be considered in cases where a noncitizen is not pursing
outside relief. The Department believes that the regulatory text is
sufficiently clear that pursuing relief outside of EOIR proceedings is
not a prerequisite for the administrative closure of a case and that
the totality-of-the-circumstances analysis appropriately encompasses
consideration of factors relevant to a determination of whether to
administratively close a case, including the reason administrative
closure is sought. See 8 CFR 1003.1(l)(3) (explaining the totality-of-
the-circumstances analysis and stating that ``[a]lthough administrative
closure may be appropriate where a petition, application, or other
action is pending outside of proceedings[,] . . . such a pending
petition, application, or other action is not required for a case to be
administratively closed''), 1003.18(c)(3) (same); see also id.
Sec. Sec. 1003.1(l)(3)(i)(A) (identifying ``[t]he reason
administrative closure is sought'' as a relevant factor for
consideration as the circumstances of the case warrant),
1003.18(c)(3)(i)(A) (same).
iii. Weighing Opposition to Motions for Administrative Closure
Comment: Many commenters supported making a noncitizen's opposition
to administrative closure at least a primary consideration, stating
that a noncitizen's desire to proceed with their case before EOIR
should be a persuasive reason not to administratively close their case.
Some commenters recommended going further, proposing that adjudicators
should not be able to administratively close proceedings over a
noncitizen's objection, particularly if the noncitizen desires to move
forward with their removal proceedings in order to pursue available
relief before EOIR. Commenters explained that administratively closing
proceedings in such circumstances could foreclose relief that is only
available in removal proceedings, remove the noncitizen's eligibility
for work authorization that is premised on a pending application before
EOIR, as well as discourage legal service providers from providing
representation before EOIR. Relatedly, one commenter recommended
providing noncitizens with 60 days to submit an opposition brief to a
DHS motion for administrative closure.
One commenter stated that they would be opposed to the final rule
implementing a provision that would provide that if one party opposed
administrative closure, the primary consideration for an adjudicator
would be whether that party provided a persuasive reason for the case
to proceed. Specifically, the commenter stated that such a provision
would codify the holding in Matter of W-Y-U-, 27 I&N Dec. 17, 20 (BIA
2017), and disproportionately benefit DHS, as DHS would be more likely
to oppose administrative closure. The commenter was also concerned that
including such a primary consideration requirement would, in cases
involving DHS opposition, outweigh a noncitizen's otherwise approvable
motion for administrative closure in the name of efficiency at the
expense of a noncitizen's due process rights.
One commenter also requested general clarification as to the
meaning of ``a persuasive reason'' that the party opposing
administrative closure must provide.
Response: After further consideration, the Department has decided
not to include a regulatory provision requiring the weighting of any
specific administrative closure factor more than any others. The
Department ultimately believes that EOIR adjudicators are in the best
position to determine when administrative closure is appropriate under
the totality of the circumstances, and weighting certain factors
differently would unnecessarily reduce adjudicators' discretion.
Accordingly, to the extent that the Board's holding in Matter of W-Y-U-
that ``the primary consideration . . . 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,'' id., is
inconsistent with the unweighted, ``totality-of-the-circumstances''
standard implemented by this rule, Matter of W-Y-U-, 27 I&N Dec. 17, is
superseded.\3\
---------------------------------------------------------------------------
\3\ The Attorney General has the authority to overrule Board
decisions, see 8 CFR 1003.1(g)(1) (describing Board decisions as
binding ``[e]xcept as Board decisions may be modified or overruled
by the Board or the Attorney General''), and, in general, agencies
are permitted to change their policies, provided that a reasoned
explanation for the policy is given. See generally Encino Motorcars,
LLC v. Navarro, 579 U.S. 211, 221 (2016) (``Agencies are free to
change their existing policies as long as they provide a reasoned
explanation for the change.'' (citing Nat'l Cable & Telecomms. Ass'n
v. Brand X internet Servs., 545 U.S. 967, 981-82 (2005))). Such
policy changes may be through rulemaking or through adjudication.
See SEC v. Chenery Corp., 332 U.S. 194, 215 (1947) (holding that
agencies may promulgate a general rule of law by either regulation
or adjudication).
---------------------------------------------------------------------------
To be clear: this is not to say that a party's opposition to a
motion for administrative closure is not a relevant factor for EOIR
adjudicators to consider; to the contrary, it is listed in the
regulatory text as such. 8 CFR 1003.1(l)(3)(i)(B), 1003.18(c)(3)(i)(B).
And, practically speaking, in many cases a noncitizen's opposition to
administrative closure based on a desire to pursue relief before EOIR
will likely weigh heavily in favor of denying a
[[Page 46754]]
motion to administratively close proceedings. However, requiring EOIR
adjudicators to weight a party's opposition more heavily when
adjudicating a motion for administrative closure or maintaining the
``primary consideration'' standard from Matter of W-Y-U- unnecessarily
limits adjudicator discretion to evaluate the totality of the
circumstances presented by each case.
In response to commenters' suggestions to not allow administrative
closure over a noncitizen's objection, the Department believes that the
importance of providing EOIR adjudicators with the authority to take
``necessary or appropriate'' action for the disposition or alternative
resolution of cases weighs in favor of providing adjudicators with the
ability to administratively close proceedings over a party's objection.
See 8 CFR 1003.1(d)(1)(ii), 1003.10(b). As explained in the NPRM,
``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.'' 88 FR at 62255. The decision to
administratively close proceedings ``involves an assessment of factors
that are particularly relevant to the efficient management of the
resources of the Immigration Courts and the Board.'' Matter of
Avetisyan, 25 I&N Dec. at 695. As such, immigration judges and
Appellate Immigration Judges are in the best position to determine how
a case should proceed, which includes the use of administrative closure
when necessary or appropriate.
Moreover, the rule provides, and motions practice before EOIR
dictates, that an adjudicator will consider a party's objection in the
totality of the circumstances, which provides the noncitizen the
ability to explain why administrative closure should not be granted.
Practically speaking, the Department expects that it would be rare for
an adjudicator to administratively close proceedings over a
noncitizen's objection if the noncitizen prefers to proceed with a
relief application in removal proceedings. However, there may be cases
where an immigration judge or Appellate Immigration Judge determines it
is necessary or appropriate to do so. In these cases, the Department
notes that the parties also retain the ability to move for
recalendaring as necessary.
Because the Department believes that EOIR adjudicators will provide
parties with a sufficient opportunity to explain any opposition to a
motion to administratively close a case pursuant to both the
requirements of this rule and existing EOIR motions practice, the
Department declines to add a 60-day opposition briefing regulatory
requirement specific to administrative closure motions. See generally
Immigration Court Practice Manual ch. 5 (explaining standards and
procedures for motions before EOIR); BIA Practice Manual ch. 5 (same).
Finally, because the Department is not adding the ``persuasive
reason'' language to the regulatory text, the Department has determined
it is unnecessary to further clarify that phrase as part of this
rulemaking.
iv. Sua Sponte Administrative Closure
Comment: Some commenters stated that EOIR adjudicators should be
able to sua sponte administratively close proceedings, particularly in
cases involving pro se noncitizens. Commenters explained that pro se
noncitizens may not know that administrative closure is available to
them, particularly when they may be eligible for relief with USCIS.
Commenters noted that the EOIR adjudicator should explain the possible
availability of administrative closure to the noncitizen and allow the
noncitizen to raise any concerns with administratively closing
proceedings.
In contrast, other commenters opposed sua sponte administrative
closure, stating that parties should have the opportunity to present
their views on administrative closure before the adjudicator makes
their decision. Alternatively, commenters noted that, if the Department
decides to provide for sua sponte administrative closure authority,
certain safeguards should be implemented, including: (1) preventing sua
sponte administrative closure over a noncitizens' objection; and (2)
requiring 60 days' notice of sua sponte administrative closure, which
would allow the parties time to object. Commenters also recommended
providing pro se noncitizens with simple written resources explaining
administrative closure (as well as termination).
Response: After further consideration, the Department has decided
not to include sua sponte administrative closure authority. The
Department wants to ensure that the parties are able to provide any
evidence relevant to an administrative closure determination, and sua
sponte administrative closure authority would potentially allow
adjudicators to exercise such authority without consideration of such
evidence.
However, the Department notes that, in practice, if an adjudicator
believes that administrative closure may be appropriate in a given
case, the adjudicator can raise the issue with the parties. If a party
is then amenable to administrative closure, the adjudicator may inquire
whether the party wishes to move for administrative closure. For those
cases before the Board, the adjudicator may request supplemental
briefing from the parties to ensure that the positions of the parties
are considered as part of the administrative closure determination. 8
CFR 1003.3(c)(1). The requirement of a motion seeking administrative
closure ensures that the parties can state their positions on
administrative closure before the adjudicator decides whether
administrative closure is appropriate in the totality of the
circumstances.
Additionally, although the Department is not providing for sua
sponte administrative closure authority, the Department appreciates
commenter suggestions related to ensuring information about
administrative closure and termination is available to all noncitizens
before EOIR, including those who may not be represented by counsel.
While the Department declines to implement suggestions like providing
written information about administrative closure and termination to pro
se noncitizens as regulatory requirements via this rulemaking, the
Department remains committed to providing information to assist pro se
respondents in EOIR proceedings and exploring ways outside of the
rulemaking process to adequately do so. See generally EOIR, Immigration
Court Online Resource, <a href="https://icor.eoir.justice.gov">https://icor.eoir.justice.gov</a> (last visited Jan.
25, 2024) (providing information about EOIR proceedings).
6. Recalendaring
Comment: Commenters provided a number of suggestions for modifying
the recalendaring factors. First, commenters requested that the
Department clarify which party bears the burden of persuasion on the
second factor--the basis for any opposition to recalendaring--and
whether the burden of persuasion on that factor will shift during the
EOIR adjudicator's consideration.
Second, commenters stated that the factor at 8 CFR
1003.1(l)(3)(ii)(D) and 1003.18(c)(3)(ii)(D), considering the length of
time between administrative closure and the filing of any application,
should be removed altogether, or at least carefully applied. Commenters
argued that, for example, relief applications for noncitizen children
may take longer to prepare, and that any such preparation should not be
viewed as dilatory under this recalendaring factor. Commenters
recommended removal of this factor and
[[Page 46755]]
stated that it does not adequately take into account the underlying
reasons for any delay in filing.
Third, commenters recommended amending the ``likelihood of
success'' factor at 8 CFR 1003.1(l)(3)(ii)(F) and 1003.18(c)(3)(ii)(F)
to focus on prima facie eligibility for outside relief, rather than
ultimate success of the relief. Commenters stated that this would
prevent immigration judges from making initial determinations on
outside relief, and instead focus on general eligibility.
Fourth, commenters recommended modifying the factor at 8 CFR
1003.1(l)(3)(ii)(G) and 1003.18(c)(3)(ii)(G), focusing on the ultimate
anticipated outcome of the case, to prevent immigration judges from
assessing the merits of any relief applications filed with EOIR before
the noncitizen has had a chance to present evidence. Commenters
suggested focusing this provision on the anticipated outcome if such
outcome is other than seeking a final adjudication before EOIR.
Fifth, one commenter recommended using a ``good cause'' standard
for recalendaring, which the commenter stated would benefit noncitizens
who did not wish for their removal proceeding to be closed.
Response: As an initial matter, the Department notes that a case
will be recalendared only upon the motion of a party. See 8 CFR
1003.1(l)(2) (``[T]he Board may, in the exercise of discretion,
recalendar the case pursuant to a party's motion to recalendar.''),
1003.18(c)(2) (same provision for immigration judges). The rule sets
forth a non-exhaustive list of factors for the EOIR adjudicator to
consider when making a decision with respect to a party's motion to
recalendar a case. Id. Sec. Sec. 1003.1(l)(3)(ii)(A) through (H),
1003.18(c)(3)(ii)(A) through (H) (listing factors). And, as discussed
in section III.B.3 of this preamble and explained in further detail in
section IV.A, the Department is adding an additional factor--the ICE
detention status of the noncitizen--to the non-exhaustive list of
factors for consideration when evaluating a motion to recalendar. Id.
Sec. Sec. 1003.1(l)(3)(ii)(H), 1003.18(c)(3)(ii)(H).
Further, as is consistent with general motions practice before
EOIR, a party moving to recalendar will have the opportunity to present
their argument to the EOIR adjudicator as to why they believe the case
should be recalendared. In doing so, the party may identify the factors
they believe are relevant in the recalendaring determination, either
from the factors provided by regulation, or by indicating any other
factors the party believes to be relevant to their argument. As is
customary in motions practice before EOIR, the adjudicator will then
give the opposing party the opportunity to respond to the motion to
recalendar. However, this is not a burden-shifting framework, as the
adjudicator will ultimately be making the determination based on the
totality of the circumstances--considering the arguments made by the
parties in support of and in opposition to the motion--and in the
exercise of the adjudicator's discretion. See id. Sec. Sec.
1003.1(l)(2), 1003.18(c)(2) (adjudicators may recalendar in their
discretion).
Second, with regard to the factor considering the length of time
between administrative closure and the filing of any application, the
Department notes that EOIR adjudicators will consider any relevant
evidence in the totality of the circumstances. Id. Sec. Sec.
1003.1(l)(3), 1003.18(c)(3). Using the commenter's example of preparing
a relief application for a noncitizen child, the Department notes that
the party may present evidence that any gap in time between
administrative closure and the filing of a relief application was due
to the complicated nature of preparing that specific relief
application, which the adjudicator will consider in assessing the
totality of the circumstances. The Department reiterates that in cases
where a motion to recalendar is not filed jointly or affirmatively
unopposed, the ultimate determination made by EOIR adjudicators will be
based on the totality of the circumstances, guided by the non-
exhaustive factors established by this rule. Id. This standard provides
EOIR adjudicators the flexibility to consider all relevant evidence and
circumstances, including those surrounding the length of time between
the granting of administrative closure and the filing of any petition,
application, or other action.
Third, the Department declines to amend the ``likelihood of
success'' factor at 8 CFR 1003.1(l)(3)(ii)(F) and 1003.18(c)(3)(ii)(F)
to adopt a ``prima facie'' standard as commenters suggested. Including
a consideration of the likelihood that a noncitizen will succeed on a
petition, application, or other action pending outside of EOIR as a
relevant factor for reopening is not meant to establish an onerous
requirement for EOIR adjudicators. Rather, this factor, derived from
Matter of Avetisyan, 25 I&N Dec. at 696, is meant to identify
circumstances where there is little to no likelihood of success on an
outside petition, application, or other action, such that recalendaring
may be appropriate in light of the totality of the circumstances. As
discussed in section III.B.4 of this preamble, this factor is intended
to ensure that administrative closure is reserved for cases with a
realistic probability of relief outside of EOIR.
Fourth, the Department does not intend that EOIR adjudicators
substantively adjudicate a noncitizen's ultimate eligibility for relief
when assessing the recalendaring factor focusing on ``the ultimate
anticipated outcome [of] the case.'' 8 CFR 1003.1(l)(3)(ii)(G),
1003.18(c)(3)(ii)(G). Rather, this factor is included for the
adjudicator to consider whether recalendaring is sought to request
termination of proceedings or to seek relief before EOIR, among other
actions, which would ultimately conclude removal proceedings. Using the
commenter's example, if a noncitizen is moving to recalendar
proceedings to seek relief for which they are newly eligible, and
should the totality of the circumstances support recalendaring, then
the EOIR adjudicator may decide to recalendar proceedings to allow the
noncitizen to pursue that relief, which would bring finality to the
removal proceedings. The EOIR adjudicator will not, as commenters
suggested, determine the noncitizen's ultimate eligibility for relief
outside of the normal course of proceedings before EOIR.
Fifth, the Department is of the opinion that the factors set forth
in this rulemaking provide clear guidance to adjudicators that is more
workable than a generalized ``good cause'' standard. Accordingly, the
Department declines to codify a ``good cause'' standard for
recalendaring proceedings and will retain the recalendaring provisions
as proposed in the NPRM, with the addition of one factor--the ICE
detention status of the noncitizen--as explained previously. See id.
Sec. Sec. 1003.1(l)(3)(ii)(H), 1003.18(c)(3)(ii)(H).
C. Termination and Dismissal
1. Distinguishing Between Termination and Dismissal
Comment: Commenters expressed support for the rule's distinction
between termination and dismissal, stating that it provided needed
clarity to allow EOIR adjudicators and parties to focus on the
substantive bases for disposition of a case rather than diverting
attention to semantic or formal distinctions. However, some commenters
stated that DHS motions to dismiss should not be granted as a matter of
course or treated as dispositive; rather, commenters
[[Page 46756]]
emphasized the importance of allowing noncitizens the opportunity to
provide argument before the motion is adjudicated. Commenters also
explained that granting DHS motions to dismiss could foreclose a
noncitizen's ability to pursue relief before EOIR.
Response: The Department agrees with the need to draw a distinction
between termination and dismissal and has not made any additional
changes to the language proposed by the NPRM. See 88 FR at 62262
(distinguishing between termination and dismissal); 8 CFR 1239.2(b).
Regarding commenter concerns that DHS motions to dismiss may be treated
as dispositive or granted as a matter of course, the Department
reiterates that, while this rule clarifies the distinction between
termination and dismissal, it does not otherwise alter how EOIR
adjudicators evaluate motions, including DHS motions to dismiss. See
Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998) (explaining that the
language of 8 CFR 239.2(a) (1998) and 239.2(c) (1998) ``marks a clear
boundary between the time prior to commencement of proceedings, where
[DHS] has decisive power to cancel proceedings, and the time following
commencement, where [DHS] merely has the privilege to move for
dismissal of proceedings'' and that, based on the distinction, ``the
regulation presumably contemplates not just the automatic grant of a
motion . . . , but an informed adjudication by'' EOIR adjudicators
``based on an evaluation of the factors underlying [DHS's] motion'').
Further, the Department notes that nothing in the rule mandates
that a DHS motion to dismiss should be granted automatically or as a
matter of course. Rather, the rule distinguishes between dismissal and
termination and clarifies that DHS may only seek dismissal of
proceedings for reasons specified in 8 CFR 239.2(a), as cross
referenced by 8 CFR 239.2(c). See 8 CFR 1239.2(b) and (c). Otherwise, a
motion to dismiss that is not in accordance with 8 CFR 239.2(a) ``shall
be deemed a motion to terminate'' and adjudicated pursuant to the
standards outlined in this rule for those motions, which include
consideration of a party's opposition to a motion to terminate. 8 CFR
1239.2(b); id. Sec. Sec. 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
Moreover, the Department emphasizes that in scenarios where a
noncitizen opposes dismissal of their case because they would prefer to
pursue relief before EOIR in removal proceedings, nothing in the rule
prevents the parties from presenting relevant evidence as to whether
proceedings should be dismissed for any of the reasons provided in 8
CFR 239.2(a) or prevents a noncitizen in removal proceedings before
EOIR from indicating that they wish for proceedings to go forward
despite a DHS motion to dismiss. Rather, motions to dismiss follow the
same general motions practice before EOIR as any other type of motion,
which includes responses to motions. See generally Immigration Court
Practice Manual ch. 5; BIA Practice Manual ch. 5. As with any motion,
before making a determination on a DHS motion to dismiss, an EOIR
adjudicator will consider the basis for the motion, any opposition to
the motion, and any relevant arguments and evidence presented by the
parties. See, e.g., Matter of G-N-C-, 22 I&N Dec. at 284-85 (concluding
that ``a [DHS] motion to terminate proceedings must be adjudicated . .
. as would any other motion'' and finding error to the extent that an
immigration judge terminated proceedings ``without considering
arguments from both sides'').
In sum, the rule neither precludes noncitizens from making
arguments regarding a DHS motion to dismiss, nor indicates that a DHS
motion to dismiss should be granted as a matter of course. Therefore,
the Department has retained the provision at 8 CFR 1239.2(b), as
proposed in the NPRM, without further change.
2. Authority To Terminate Cases
Comment: One commenter stated that this rule would inappropriately
give EOIR adjudicators the authority to terminate cases that is not
supported by the INA or other law. The commenter opined that EOIR
adjudicators only have the authority to terminate or dismiss a pending
case if DHS cannot sustain the charges of removability, or if a
noncitizen has obtained an immigration benefit or relief that gives
them lawful status or U.S. citizenship, or renders the noncitizen no
longer subject to removal. Citing section 240(c)(1)(A) of the Act, 8
U.S.C. 1229a(c)(1)(A), and Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462
(A.G. 2018), the commenter asserted that EOIR adjudicators otherwise
lack the authority to end removal proceedings entirely using
termination or dismissal because the INA requires an immigration judge
to decide whether a noncitizen is removable at the conclusion of
removal proceedings. Specifically, the commenter stated that
terminating cases to allow noncitizens to apply for an immigration
benefit or relief from a separate agency is premature, presupposes that
a noncitizen will receive a benefit or relief--despite EOIR not being
the adjudicator of the relief--and conflicts with the statutory
obligation to determine whether a noncitizen is removable. The
commenter also expressed concern about maintaining separation-of-
function principles and stated that an immigration judge may not
override or usurp DHS's exercise of prosecutorial discretion or
authority.
Response: The Department disagrees with the commenter and believes
that the termination and dismissal authorities implemented by this rule
are fully consistent with the INA. As the Department explained in
response to similar concerns related to administrative closure
authority, see section III.B.1 of this preamble, the INA provides the
Attorney General with the authority to promulgate regulations that the
Attorney General deems necessary for implementing the INA, which
includes overseeing EOIR's adjudication system. See INA 103(g)(1)-(2),
8 U.S.C. 1103(g)(1)-(2). Exercising this statutory authority, the
Attorney General has promulgated regulations providing EOIR
adjudicators with the general authority to ``take any action consistent
with their authorities'' as ``appropriate and necessary for the
disposition'' of cases. 8 CFR 1003.1(d)(1)(ii), 1003.10(b). The
Department is now using this rulemaking to explicitly define these
actions to include termination and dismissal. See id. (``Such actions
include administrative closure, termination of proceedings, and
dismissal of proceedings.'').
By adding this language, the Department is making clear that
termination and dismissal authority is ``consistent with . . .
authorities under the Act and the regulations.'' Id. Sec. Sec.
1003.1(d)(1)(ii), 1003.10(b); see also Gonzalez v. Garland, 16 F.4th
131, 141 (4th Cir. 2021) (explaining that the general regulatory
authority encompassing the termination of proceedings is consistent
with the INA). Nothing in the INA explicitly precludes EOIR
adjudicators from terminating or dismissing removal proceedings. See
Gonzalez, 16 F.4th at 141-42 (``[W]e fail to see how the general power
to terminate proceedings is `[in]consistent' with the authorities
bestowed by the INA [and] . . . have found no provisions stating that
[EOIR adjudicators] cannot terminate removal proceedings . . . .'').
Indeed, such authority is necessarily inherent in the statute,
including, as noted by the commenter, when charges of removability
cannot be sustained. See, e.g., Matter of Sanchez-Herbert, 26 I&N Dec.
43, 44 (BIA 2012) (``If the DHS meets its burden, the [i]mmigration
[j]udge should issue an order of removal; if it cannot, the
[i]mmigration [j]udge should terminate proceedings.'').
[[Page 46757]]
The Department also believes these termination and dismissal
provisions are consistent with the specific INA provisions governing
removal proceedings. Much like administrative closure authority,
termination and dismissal authority provides methods for EOIR
adjudicators to manage the cases on their dockets in furtherance of
their statutory responsibility to adjudicate cases. See INA 240(a)(1),
8 U.S.C. 1229a(a)(1) (``An immigration judge shall conduct proceedings
for deciding the inadmissibility or deportability of [a
noncitizen].''). For example, the discretionary termination provision
raised by the commenter, which focuses on a noncitizen pursuing outside
relief with USCIS, is consistent with this statutory scheme governing
removal proceedings. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). In many cases, noncitizens in removal proceedings
may be eligible for relief before USCIS that would, if granted, nullify
the grounds of inadmissibility or removability in removal proceedings.
Thus, authorizing, but not requiring, EOIR adjudicators to
discretionarily terminate such cases, where appropriate, for
noncitizens to pursue the specified relief furthers the statutory
scheme by allowing USCIS to adjudicate relief that would directly
affect whether the noncitizen is removable. See Matter of Coronado
Acevedo, 28 I&N Dec. 648, 651-52 (A.G. 2022) (indicating that
precluding termination of proceedings in certain common situations not
accounted for in the regulations ``would undermine fair and efficient
adjudication'' of cases in some instances, including where
``termination is necessary for the respondent to be eligible to seek
immigration relief before USCIS'') (cleaned up).
Similarly, the Department also agrees with the Fourth Circuit's
reasoning in Gonzalez, concluding that the INA's requirement that an
immigration judge shall decide whether a noncitizen is removable at the
conclusion of proceedings ``certainly does not forbid a termination or
delay of `the proceeding.' '' 16 F.4th at 141; INA 240(c)(1)(A), 8
U.S.C. 1229a(c)(1)(A).
Moreover, the Department, as well as DHS, have long recognized that
termination is consistent with the INA by authorizing or acknowledging
its use in certain circumstances, such as when it would allow
noncitizens to seek specific relief or status that the INA makes
available to them outside of removal proceedings. See, e.g., 8 CFR
1239.2(f) (2023) (allowing a noncitizen to seek termination to proceed
on a naturalization application if certain conditions are met); see
also id. 214.14(c)(1)(i) (recognizing that a noncitizen may seek
termination before EOIR while USCIS adjudicates their petition for U
nonimmigrant status); id. 214.11(d)(1)(i) (recognizing that a
noncitizen may seek termination before EOIR while USCIS adjudicates
their petition for T nonimmigrant status). However, as explained in the
NPRM, the Department believes that it is important for EOIR
adjudicators to have termination authority outside of these existing
circumstances, which do not capture all situations where EOIR
adjudicators' exercise of that authority may be necessary or
appropriate for the disposition of a case. See, e.g., 88 FR at 62263-64
(discussing reasons for requiring or permitting termination in
circumstances specified by the rule).
In opposing these changes, the commenter's reliance on Matter of S-
O-G- & F-D-B- is misplaced. Matter of S-O-G- & F-D-B- held that
immigration judges have no inherent authority to terminate or dismiss
removal proceedings and that immigration judges may dismiss or
terminate proceedings only under the circumstances expressly identified
in the regulations or where DHS fails to sustain charges of
removability. 27 I&N Dec. at 462. Notably, this decision did not call
into question the validity of regulatory provisions expressly
authorizing termination, and so does not support the proposition that
termination and dismissal are not statutorily authorized. Id. at 463
(holding that EOIR adjudicators ``may not terminate or dismiss those
proceedings for reasons other than those expressly set out in the
relevant regulations or where DHS has failed to sustain the charges of
removability.''). Matter of S-O-G- & F-D-B- instead focused on whether
an EOIR adjudicator's general regulatory authority to take any
necessary and appropriate actions includes termination. See id. at 466
(analyzing whether termination or dismissal would ``exceed the
authorized bases for dismissal or termination in the regulations'').
In any event, Matter of S-O-G- & F-D-B- has been overruled by the
Attorney General and its rationale for limiting termination and
dismissal to certain narrow circumstances was previously rejected by
the Fourth Circuit. See Matter of Coronado Acevedo, 28 I&N Dec. at 651
(explaining that ``S-O-G- & F-D-B- has imposed rigid procedural
requirements that would undermine . . . fair and efficient adjudication
in certain immigration cases'') (cleaned up); Gonzalez, 16 F.4th at
142. Furthermore, this rulemaking now clarifies the scope of an EOIR
adjudicator's termination authority by amending the general regulatory
provision discussed in Matter of S-O-G- & F-D-B- to explicitly include
termination as an available action. See 8 CFR 1003.1(d)(1)(ii),
1003.10(b).
For similar reasons, these provisions are also consistent with the
policies underlying the INA by giving EOIR adjudicators the authority
to terminate cases where it would advance the fairness and efficiency
goals of the immigration system. See Stone v. INS, 514 U.S. 386, 398
(1995) (noting that ``[u]nderlying considerations of administrative . .
. efficiency and fairness to the [noncitizen]'' are important
considerations when interpreting the INA). The Department believes that
this provision of the rule will help to promote fairness by allowing
discretionary termination for noncitizens to pursue an application for
relief or status with USCIS that Congress has made available to them.
See Meza-Morales v. Barr, 973 F.3d 656, 665 (7th Cir. 2020) (explaining
that ``cases must 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''). The Department
believes that discretionary termination provisions would also help
promote efficiency by saving adjudicatory resources for other cases
that are ready for resolution in removal proceedings and by limiting
the issues to be resolved by EOIR adjudicators should DHS initiate new
proceedings.
The Department also disagrees with the commenter that the
termination provisions raise separation-of-function concerns or impede
DHS's prosecutorial authority in any way. The Department has fully
considered the separate roles and responsibilities of DHS and EOIR in
removal proceedings and has determined that codifying EOIR
adjudicators' authority to grant termination under the specific
circumstances identified in the rule is consistent with EOIR's
independent adjudicatory authority and would not interfere with DHS's
prosecutorial functions. It is well-established that DHS exercises its
prosecutorial authority by initiating proceedings and that EOIR
adjudicators do not have the authority to review that decision. See,
e.g., Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA 2017)
(explaining that EOIR adjudicators do not have the authority to review
DHS's decision to initiate removal proceedings in a particular case).
This rule in no way precludes, alters, or reduces DHS's authority or
ability to initiate
[[Page 46758]]
proceedings, as such a decision is exclusively within the purview of
DHS.
Further, this rule implements several limitations to ensure that
discretionary termination authority is not used in a manner that would
otherwise conflict with DHS's prosecutorial authority. First, the rule
limits the availability of termination to specific, well-defined
scenarios. See 8 CFR 1003.1(m)(1), 1003.18(d)(1); see also 88 FR 62242,
62264 (explaining the bases for discretionary termination in specific
discrete scenarios, including where the noncitizen is a beneficiary of
TPS, deferred action, and deferred enforced departure, or where an
immigrant visa is immediately available to the noncitizen and USCIS has
granted a Form 601-A waiver).
Second, in cases where discretionary termination may be authorized
because a noncitizen is seeking relief or lawful status that would end
the need for continued removal proceedings, the rule imposes additional
requirements to ensure that termination is not granted prematurely. For
example, as discussed in section IV.G of this preamble, the Department
has modified this provision to apply only to cases where the noncitizen
has first filed their application with USCIS and has demonstrated prima
facie eligibility for such relief, with limited exceptions. See 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). The Department believes that
this modification will mitigate the risk that termination is granted
where a noncitizen has no intention of filing the application or does
not have a substantial likelihood of obtaining such relief.
Additionally, the Department believes that the filing requirement will
ensure a seamless transition of the noncitizen's case to USCIS and
allow DHS to monitor the adjudication of that case and, if appropriate,
refer the noncitizen to removal proceedings after the conclusion of any
USCIS adjudications. See 8 CFR 239.1(a) (providing DHS immigration
officers, including certain USCIS officers, with the authority to issue
notices to appear to initiate removal proceedings.).
Third, the rule only allows termination upon the motion of a party,
thereby precluding an EOIR adjudicator's use of sua sponte termination.
See id. Sec. Sec. 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
Fourth, the rule also explicitly requires EOIR adjudicators to
consider the parties' arguments in support of or in opposition to
discretionary termination when adjudicating the motion to terminate, to
ensure that the adjudicator has the full benefit of the parties'
positions on such termination. The Department believes that this
requirement will ensure that DHS's prosecutorial interests in the case
are considered. If DHS believes that termination is not warranted in a
particular case, the rule provides DHS with an opportunity to present
its reasons for opposing termination and requires EOIR adjudicators to
consider those reasons in deciding whether termination is necessary or
appropriate in the case. See id. Additionally, the Department notes
that DHS can appeal an immigration judge's decision to the Board or
seek reconsideration should DHS disagree with termination. See 8 CFR
1003.38 (appeals); 1003.23 (reconsideration).
Fifth, the rule's catch-all discretionary termination ground
explicitly provides that EOIR adjudicators may only terminate outside
of the enumerated circumstances where, ``[d]ue to circumstances
comparable to'' the enumerated provisions, ``termination is similarly
necessary or appropriate for the disposition or alternative resolution
of the case.'' 8 CFR 1003.1(m)(1)(ii)(F), 8 CFR 1003.18(d)(1)(ii)(F).
However, the rule specifies that the EOIR adjudicator may not terminate
a case for purely humanitarian reasons, unless DHS expressly consents
to such termination, joins in a motion to terminate, or affirmatively
indicates its non-opposition to a noncitizen's motion. See 8 CFR
1003.1(m)(1)(ii)(F), 8 CFR 1003.18(d)(1)(ii)(F).
Sixth, the Department notes that the rule does not require EOIR
adjudicators to terminate proceedings with prejudice. In cases where an
EOIR adjudicator terminates proceedings without prejudice, nothing in
this rule precludes DHS from deciding, in the exercise of their
prosecutorial authority and discretion, to reinitiate removal
proceedings.
Seventh, the longstanding dismissal provision at 8 CFR 1239.2(c),
which the Departments have retained in the final rule, reinforces the
principle that EOIR adjudicators have no authority to grant
discretionary termination for reasons that would encroach on DHS's
exercise of prosecutorial discretion. That provision allows for
dismissal of removal proceedings in certain circumstances related to
DHS's exercise of prosecutorial discretion, such as where the charging
document was ``improvidently issued'' or continuation of the case is no
longer ``in the best interest of the government.'' See 8 CFR
239.2(a)(6), (7). However, an EOIR adjudicator may only grant dismissal
of proceedings for these reasons where DHS has affirmatively moved to
dismiss the case on one of these grounds. The rule provides no similar
basis for discretionary termination on the motion of the noncitizen.
See 8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
Taken together, the Department believes that these limitations and
additional modifications of discretionary termination authority are
sufficient to address any concerns that the rule would allow EOIR
adjudicators to encroach on DHS's prosecutorial authority.
3. Mandatory Termination
Comment: Commenters provided several recommendations regarding the
mandatory termination grounds. Commenters recommended modifying the
factor covering scenarios when no charge of deportability,
inadmissibility, or excludability can be sustained, to include
``alienage.'' Commenters explained that, if DHS fails to establish
alienage, then the case must be terminated.
Response: The Department believes it is unnecessary to explicitly
include DHS's failure to establish alienage under the mandatory
termination ground related to a failure to sustain the charges of
inadmissibility against the noncitizen, as such scenarios are already
encompassed by the mandatory termination ground for a failure to
sustain charges of inadmissibility. 8 CFR 1003.1(m)(1)(i)(A),
1003.18(d)(1)(i)(A) (listing ``[n]o charge of deportability,
inadmissibility, or excludability can be sustained'' as a ground for
mandatory termination). By necessity, charges of inadmissibility are
not sustainable if the noncitizen's alienage is not first established
where relevant. See 8 CFR 1240.8(c) (``In the case of a respondent
charged as being in the United States without being admitted or
paroled, [DHS] must first establish the alienage of the respondent.'').
Additionally, as ``alienage is a jurisdictional fact,'' U.S. ex rel.
Bilokumsky v. Tod, 263 U.S. 149, 153 (1923) (citing United States v.
Sing Tuck, 194 U.S. 161, 167 (1904)), if DHS fails to establish
alienage, there would be no legal basis to continue proceedings, and,
accordingly, proceedings must be terminated as required by law. 8 CFR
1003.1(m)(1)(i)(F); 1003.18(d)(1)(i)(F) (requiring termination where
required by law); see also 8 CFR 1240.8.
Comment: Commenters also recommended that the standard for
mandatorily granting joint or affirmatively unopposed motions to
terminate should be expanded to also cover circumstances where DHS does
not timely respond to the motion.
[[Page 46759]]
Commenters stated that this change would help avoid prolonging removal
proceedings while waiting on DHS's response. Other commenters stated
that joint or affirmatively unopposed motions to terminate should be
granted without exception.
Response: As explained in section III.B.3 of this preamble in
relation to the similar administrative closure provision, the
Department does not believe that expanding the joint or affirmatively
unopposed motion standard to DHS non-responses best serves the
interests underlying this termination provision. See 88 FR at 62263
(explaining that joint and affirmatively unopposed motions should
generally be granted as there is no adversarial interest). Moreover,
any non-responsiveness from DHS will not substantially delay
proceedings, as motions and responses are subject to EOIR adjudicator-
imposed time limits. See 8 CFR 1003.23(a).
Comment: Commenters proposed adding an additional mandatory
termination ground for noncitizens with an approved SIJ petition.
Commenters stated that this would allow the noncitizen to remain in the
United States pending the outcome of their SIJ adjustment of status
application, which are currently subject to a backlog while awaiting a
priority date.
Response: The Department declines to add a provision requiring
termination for all individuals with an approved SIJ petition, as the
Department does not believe that termination in every such case would
be necessary or appropriate. Because an approved SIJ petition itself
does not result in lawful status, the Department does not believe it
should be included under the mandatory termination provision with other
forms of relief that do provide lawful status. See 87 FR 13075 (noting
that ``SIJ is a `classification'; an individual does not receive an
actual `status' until they become an LPR based on the underlying SIJ
classification''). Depending on visa availability, the noncitizen may
be able to apply to adjust status in concurrence with their SIJ
petition or, if relevant, they may be considered for deferred action
while awaiting a visa to become available. See USCIS, Policy Alert PA-
2022-10, Special Immigrant Juvenile Classification and Deferred Action
(Mar. 7, 2022) (``USCIS SIJ Policy Alert'') (``Due to ongoing visa
number unavailability, the protection that Congress intended to afford
SIJs through adjustment of status is often delayed for years, leaving
this especially vulnerable population in limbo.''). Alternatively, a
noncitizen with an approved SIJ petition may never apply to adjust
status.
By contrast, the mandatory termination provisions at 8 CFR
1003.1(m)(1)(i)(D) and 1003.18(d)(1)(i)(D) apply to situations in which
``the noncitizen would not have been deportable, inadmissible, or
excludable as charged if the noncitizen had obtained such status before
the initiation of proceedings.'' Approved SIJ petitions do not meet
this definition. See USCIS SIJ Policy Alert (``Noncitizens without
lawful status who have an approved SIJ petition remain subject to
removal . . . .'').
This rule does not foreclose termination for noncitizens with
approved SIJ petitions, but rather permits discretionary termination
after the adjudicator has had the opportunity to consider whether
termination may be appropriate for a given case--for example, where the
noncitizen is prima facie eligible to adjust status or has received
deferred action in connection with their SIJ classification. 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B) (discretionary termination
where the noncitizen has demonstrated prima facie eligibility for an
application, such as adjustment of status, that USCIS has jurisdiction
to adjudicate); 8 CFR 1003.1(m)(1)(ii)(C), 1003.18(d)(1)(ii)(C)
(discretionary termination where a noncitizen is the beneficiary of
deferred action). The Department believes it is appropriate to limit
mandatory termination under 8 CFR 1003.1(m)(1)(i)(D) and
1003.18(d)(1)(i)(D) to situations in which lawful status has been
obtained and allow for broader discretion to terminate only as
appropriate, particularly when a vulnerable category of noncitizens is
still pursuing relief. This provision would allow adjudicators to
consider a noncitizen's SIJ classification and availability of
adjustment status or deferred action in determining whether termination
is appropriate but would not require termination in any such case.
Comment: With regard to the mental competency termination ground,
one commenter recommended providing standards detailing what qualifies
as ``mentally incompetent'' and what constitutes ``adequate
safeguards.'' To do so, the commenter largely recommended codifying the
Matter of M-A-M- standards, along with related best practices. See 25
I&N Dec. 474 (BIA 2011). Relatedly, another commenter believed this
termination ground was improper, as it would leave the noncitizen in
limbo without legal status and would likely result in a drain on public
resources.
Response: The Department continues to believe that it is
appropriate to include a termination ground covering scenarios when a
noncitizen is not mentally competent and adequate safeguards are not
available. 8 CFR 1003.1(m)(1)(i)(B), 1003.18(d)(1)(i)(B). Noncitizens
must be afforded a procedurally fair hearing, and if a noncitizen lacks
sufficient competency to proceed with a hearing, then safeguards must
be implemented ```to protect the rights and privileges of the'''
noncitizen. Matter of M-A-M-, 25 I&N Dec. at 478 (quoting section
240(b)(3) of the INA, 8 U.S.C. 1229a(b)(3)); see also id. at 483
(providing examples of safeguards). As the Board has recognized, ``even
where the court and the parties undertake their best efforts to ensure
appropriate safeguards,'' concerns over the procedural fairness of
proceedings may remain, and thus, the ``[i]mmigration [j]udge may
pursue alternatives with the parties.'' Id. at 483. The Department is
of the opinion that termination of proceedings can be an appropriate
alternative to carrying out proceedings that would not be fundamentally
fair due to the noncitizen's lack of competency and the lack of
appropriate safeguards.\4\
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\4\ The Department notes, however, that in many cases, legal
representation is a proper and adequate safeguard. See Matter of M-
J-K-, 26 I&N Dec. 773, 777 (BIA 2016) (noting that prior to
determining that no adequate safeguards are available, the ``proper
course'' of action is ``to apply the safeguard of legal
representation,'' as ``[t]he participation of counsel increases the
likelihood of finding a means to proceed fairly''). Moreover, the
Board has permitted the use of administrative closure as an
appropriate option to allow a noncitizen who is experiencing mental
health issues impacting competency to seek treatment to mitigate
competency issues so that fundamentally fair proceedings can go
forward. Matter of M-A-M-, 25 I&N Dec. at 483. Given the wide array
of safeguards available in immigration proceedings, the Department
anticipates that only in rare cases will there be a lack of
appropriate safeguards such that fundamentally fair proceedings are
not possible. See id. at 481-83 (listing immigration regulations
that provide guidance as to appropriate safeguards and drawing from
case law to provide a non-exhaustive list of examples of safeguards
that immigration judges may apply in cases where a noncitizen lacks
mental competency). Ultimately, however, in cases involving issues
of mental competency, an immigration judge is best positioned to
determine which safeguards are appropriate under the circumstances
of a particular case. Matter of M-J-K-, 26 I&N Dec. at 775.
---------------------------------------------------------------------------
That said, the Department notes that ``competency is not a static
condition. It varies in degree. It can vary over time. It interferes
with an individual's functioning at different times in different
ways.'' Id. at 480 (quoting Indiana v. Edwards, 554 U.S. 164, 175
(2008) (internal quotations omitted)). Thus, should a noncitizen's
mental competency be restored, or should adequate safeguards become
available,
[[Page 46760]]
nothing in this rulemaking prevents future, procedurally fair
proceedings from going forward.
Additionally, the Department declines to codify broad regulatory
standards related to mental competency in this rulemaking as requested
by a commenter. The Department does not believe this rulemaking is the
appropriate vehicle for such broad standards, as it only contains a
single termination ground related to mental competency. Moreover, the
Department similarly declines to define these terms solely for the
purposes of this narrow termination provision, which would risk
confusion with broader mental competency guidelines. Notably, however,
the Board's decision in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011),
continues to provide applicable guidelines for assessment of competency
issues in proceedings before EOIR. Accordingly, the Department does not
believe that further codification of competency standards in this
rulemaking is necessary at this time.
4. Discretionary Termination
Comment: Commenters recommended broadening the discretionary
termination ground for an unaccompanied child (``UC'') to pursue asylum
before USCIS to cover noncitizens previously determined to be UCs.
Specifically, commenters stated that longstanding USCIS policy and a
nationwide preliminary injunction extends USCIS's initial asylum
jurisdiction not only to an individual determined to meet the UC
definition at 8 CFR 1001.1(hh) during the course of EOIR proceedings,
but also to individuals previously determined to be UCs, absent an
affirmative act by DHS or HHS to terminate such a determination prior
to the filing of the individual's asylum application. Commenters also
stated that this section should explicitly defer to USCIS's
determinations as to when a noncitizen is considered a UC.
Commenters also recommended treating the UC termination ground as
mandatory rather than discretionary, which commenters stated would help
safeguard due process for child applicants and help reduce the
immigration court backlog.
In contrast, other commenters opposed this discretionary
termination ground, stating that EOIR should keep UCs on their dockets
until they have had their asylum application adjudicated by USCIS.
Commenters raised concerns that terminating proceedings before the UC
has their asylum application adjudicated by USCIS would result in the
Government losing track of the UC.
Response: After further consideration, and as detailed in section
IV of this preamble, the Department is modifying the discretionary
termination ground relating to UCs pursuing asylum before USCIS. See 8
CFR 1003.1(m)(1)(ii)(A), 1003.18(d)(1)(ii)(A). First, the Department is
modifying this discretionary termination ground to apply to all
noncitizens whose asylum applications are considered to have been filed
by a UC such that USCIS may exercise initial jurisdiction pursuant to
INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). The Department recognizes
that there may be circumstances, such as by court order, internal USCIS
policy, or by a determination of a noncitizen's unaccompanied status,
where applications are considered to have been filed by UCs
specifically for purposes of this statutory provision. This change
ensures that discretionary termination is available when necessary to
allow qualifying noncitizens to pursue asylum relief before USCIS under
INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). This change is discussed in
further detail in section IV.B of this preamble.
Second, the Department is modifying this UC provision to require
the filing of an asylum application with USCIS before an EOIR
adjudicator may grant discretionary termination. After further
deliberation, the Department believes that this change will best ensure
that the noncitizen does not enter a position where they do not have a
relief application or removal proceeding pending. This change will
therefore allow the Department and DHS to most efficiently track the
noncitizen's status and take appropriate action subsequent to USCIS's
adjudication of their asylum application.
However, the Department declines to make this provision mandatory
rather than discretionary. The Department limited the mandatory
termination provisions relating to outside relief to scenarios where
such relief has already been obtained. See 8 CFR 1003.1(m)(1)(i)(C) and
(D), 1003.18(d)(1)(i)(C) and (D). The Department believes it is more
appropriate to make discretionary termination available when a
noncitizen is still pursuing relief but does not currently have valid
legal status. See, e.g., 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B) (discretionary termination available when pursuing
relief with USCIS).
As the Department notes further, in section IV.C of this preamble,
the final rule will require those considered to be filing as UCs to
have filed the asylum application with USCIS, rather than state an
intent to file, as proposed in the NPRM, see 88 FR at 62264, because
the Department believes that this change is necessary to ensure that
EOIR adjudicators do not terminate cases involving such vulnerable
groups without first mitigating the risk that their cases end up
outside of the immigration process with no operationally feasible
mechanism to ensure that such noncitizens will submit an affirmative
application promptly to USCIS. The Department believes that ensuring
that there will be a transition between proceedings before EOIR to
proceedings before USCIS is particularly important for cases involving
UCs and other similarly situated noncitizens so as to mitigate
vulnerabilities of such individuals to trafficking, fraud, or abuse
without actively pursuing a path for relief or protection or status.
Such concerns would be exacerbated by a policy requiring mandatory
termination for such individuals, and the EOIR adjudicator should have
the discretion to consider whether termination might be appropriate in
each case.
Additionally, the Department notes that this provision does not
alter any substantive determinations regarding when, how, or by whom
any UC determinations are made.
Comment: With regard to the discretionary termination ground based
on prima facie eligibility for outside relief, some commenters
recommended clarifying that immigration judges may determine prima
facie eligibility for naturalization, rather than relying on an
``affirmative communication'' from USCIS. Commenters cited two Board
decisions that they believed were erroneously decided and have resulted
in USCIS holding an effective veto of an immigration judge's
termination decision when the noncitizen is pursuing naturalization.
See Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007); Matter of
Cruz, 15 I&N Dec. 236 (BIA 1975).
Response: The Department notes that the Board, in Matter of Acosta
Hidalgo, was interpreting the specific regulatory text of 8 CFR
1239.2(f) (2023), which is being removed and reserved in this
rulemaking. See 24 I&N Dec. at 105-06. Similarly, in Matter of Cruz, 15
I&N Dec. at 237, the Board was interpreting the regulatory
``predecessor'' to 8 CFR 1239.2(f) (2023), which was ``essentially
identical to'' 8 CFR 1239.2(f) (2023). 24 I&N Dec. at 104. Under the
previous regulation, EOIR adjudicators were permitted to terminate
removal proceedings only to allow a noncitizen
[[Page 46761]]
to proceed to a final hearing on a pending application or petition for
naturalization when the noncitizen demonstrated prima facie eligibility
and the matter involved exceptionally appealing or humanitarian
factors. See 8 CFR 1239.2(f) (2023). The Board's holdings in the cases
cited by the commenters do not apply to the provisions of this rule,
which, while designed to include the circumstances described under
former 8 CFR 1239.2(f), are broader in nature. Compare 8 CFR 1239.2(f)
(2023) (``An 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; 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.''), with 8 CFR
1003.1(m)(1)(ii)(B) and 8 CFR 1003.18(d)(1)(ii)(B) (authorizing
termination where ``[t]he noncitizen is prima facie eligible for
naturalization'').
Additionally, circuit courts have criticized the framework
established by Acosta Hidalgo and former 8 CFR 1239.2(f) (2023)
together, noting that it has created operational frustrations, as well
as inefficiencies, inconsistencies, and confusion. In particular,
Perriello v. Napolitano, 579 F.3d 135, 140 (2d Cir. 2009), asserted
that former 8 CFR 1239.2(f) (2023) was ``antiquated'' in light of
amendments made by the Immigration Act of 1990 (``IMMACT'') to the
naturalization process. Public Law 101-649, 511(a), 104 Stat. 4978,
5044. As relevant, the changes made by IMMACT, and as codified with
minor changes, provide that ``. . . no application for naturalization
shall be considered by the Attorney General if there is pending against
the applicant a removal proceeding . . . .'' IMMACT Sec. 407(d)(3),
104 Stat. at 5041; INA 318, 8 U.S.C. 1429. After this amendment, some
courts called into question the continued viability of former 8 CFR
1239.2(f) (2023). See Perriello, 579 F.3d at 140 (collecting cases). In
Acosta Hidalgo, the BIA reaffirmed that EOIR adjudicators must
``require some form of affirmative communication'' from DHS before
terminating under former 8 CFR 1239.2(c) (2023).
This framework was confusing, Perriello stated, whereby former 8
CFR 1239.2(f) (2023) required an ``affirmative communication'' by DHS
regarding prima facie eligibility for naturalization before terminating
removal proceedings, but where the statute prohibited consideration of
an application while the removal proceedings were pending, which could
be read to include a prohibition on assessments of prima facie
eligibility. Perriello, 579 F.3d at 142. The court stated that ``[t]he
law, in effect, seems to be chasing its tail.'' Id. at 138. Recognizing
these concerns, and as discussed in section IV.F of this preamble, this
rule eliminates the certification requirement while continuing to
recognize DHS's role in the naturalization context. This rule, which
authorizes EOIR adjudicators to make a prima facie inquiry into
naturalization eligibility, will provide significant efficiencies, and
address operational frustrations, inconsistencies, and confusion over
adopting a similar requirement to the holding in Acosta Hidalgo in
relevant cases involving naturalization applications, as EOIR
adjudicators will no longer be reliant on USCIS prima facie
naturalization determinations before they may adjudicate a motion to
terminate, and parties will no longer be required to obtain and produce
such certifications.\5\ The Department notes that evidence of any such
certification from USCIS may be considered by the EOIR adjudicator in
determining whether to terminate under this provision. Additionally,
this provision does not require EOIR adjudicators to terminate in any
case where a noncitizen asserts they are eligible to naturalize, and to
the extent that the adjudicator determines that such certification is
necessary to render a decision on termination, the adjudicator may
request that the parties produce such a certification.
---------------------------------------------------------------------------
\5\ As acknowledged in Acosta Hidalgo, the Department cannot
compel DHS to produce such a certification, 24 I&N Dec at 107, and
where DHS has not done so, cases have unnecessarily stalled without
progress towards resolution, leaving the parties in a state of
uncertainty and confusion. For example, in Periello, the court
stated that ``nothing seems to compel DHS to make such a
determination [on the noncitizen's prima facie eligibility for
naturalization], let alone to issue such a communication.'' 579 F.3d
at 138. Periello also stated that ``[i]n some cases . . . DHS has
adjudicated naturalization applications while [noncitizens] have
awaited termination of their removal proceedings, notwithstanding
the bar in [INA 318, 8 U.S.C. 1429] . . . . And in yet other cases,
no determination of prima facie eligibility has been made by
anybody, leaving [noncitizens] to pursue writs of mandamus in an
effort to compel DHS to produce `affirmative statement[s]' as to
prima facie eligibility.'' Id. at 140-41. To illustrate the
potentially confusing results, Periello cited an unpublished
district court case where a noncitizen had petitioned for relief
after DHS concluded that it lacked jurisdiction over the
noncitizen's naturalization application, but nonetheless advised
that the noncitizen was not prima facie eligible for naturalization.
Id. In the same case, an immigration judge had previously ruled that
the noncitizen was prima facie eligible for naturalization, but the
BIA reversed, holding that Board precedent prohibited the
immigration judge from making that determination. Id.
---------------------------------------------------------------------------
Moreover, permitting EOIR adjudicators to make an inquiry into a
noncitizen's prima facie eligibility for naturalization, despite not
having jurisdiction to adjudicate naturalization applications, is
consistent with agency practice in analogous contexts. For example,
although USCIS has exclusive jurisdiction over U visa applications, an
EOIR adjudicator is permitted to assess a noncitizen's prima facie
eligibility for U nonimmigrant status. See Matter of Sanchez-Sosa, 25
I&N Dec. 807, 813-14 (BIA 2012) (setting forth the inquiry into prima
facie eligibility for U nonimmigrant status). Given that EOIR
adjudicators lack jurisdiction over naturalization applications, EOIR
adjudicators' determinations as to noncitizens' prima facie eligibility
for naturalization will not be binding on USCIS.
In sum, nothing in the INA or the regulatory text requires an
``affirmative communication'' from USCIS as to a noncitizen's prima
facie eligibility for naturalization, as this rule authorizes EOIR
adjudicators to assess whether a noncitizen is prima facie eligible for
naturalization when termination is sought on that basis. 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). Under this rule, immigration
judges would not assess prima facie eligibility for naturalization as a
part of a noncitizen's naturalization application, INA 318, 8 U.S.C.
1429 (``the findings of the Attorney General in terminating removal
proceedings . . . shall not be deemed binding in any way . . . with
respect to the question of whether such person has established []
eligibility for naturalization as required by this subchapter''), but
rather solely for the purpose of assessing whether termination would be
necessary or appropriate to allow the noncitizen to have their
application considered by DHS. Nevertheless, as discussed in more
detail in section IV.F of this preamble, this rule continues to
acknowledge both DHS's unique role as sole administrators over the
process to obtain permanent (with limited exceptions) citizenship in
the United States and Congress's directive that pending removal
proceedings--which are initiated and prosecuted by DHS--should bar
consideration of naturalization applications, by limiting termination
to pursue a naturalization application to those instances where DHS
does not oppose a noncitizen's motion to terminate. 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
Comment: Commenters recommended adding standalone discretionary
[[Page 46762]]
termination grounds for noncitizens with certain pending USCIS
applications, including T visas, U visas, Violence Against Women Act
(``VAWA'') self-petitions, and SIJ petitions. For example, commenters
noted that a standalone discretionary termination ground would be
important for many noncitizens with approved SIJ petitions, but who are
awaiting a visa priority date. Commenters stated that the rulemaking's
existing discretionary termination ground for noncitizens with deferred
action--which would cover SIJ applicants in many circumstances--is not
sufficient. Commenters explained deferred action for SIJ applicants is
purely discretionary and may be removed by a future administration,
thereby foreclosing future discretionary termination for SIJ
applicants.
One commenter also recommended adding a discretionary termination
ground for noncitizens with bona fide determinations from USCIS, but
who are awaiting visa availability. The commenter explained that, in
these circumstances, the noncitizen already has an otherwise approvable
form of relief, and termination would be more efficient than
administrative closure while simply waiting on visa availability.
Response: The Department declines to add specific discretionary
termination grounds for various forms of relief proposed by commenters
because the rule's existing termination grounds already broadly cover
those forms of relief. The rule includes a discretionary termination
ground for a noncitizen who is prima facie eligible for naturalization,
lawful status, or relief from removal that USCIS has jurisdiction to
adjudicate, and the noncitizen has filed the petition, application, or
other action with USCIS, though no filing is required where the
noncitizen is prima facie eligible for adjustment of status or
naturalization. This would broadly include the types of relief noted by
commenters, including T visas, U visas, VAWA self-petitions, and SIJ
petitions. 8 CFR 1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). More
specifically, the Department declines to add standalone discretionary
termination grounds for SIJ applicants as proposed by commenters, as
speculation of which status categories may receive deferred action
under future administrations is outside the scope of this rule.
Further, as explained in more detail in section IV.H of this
preamble, the Department is modifying this discretionary termination
ground to clarify that EOIR adjudicators may not terminate cases for
the express purpose of allowing a noncitizen--other than a noncitizen
who has filed an asylum application with USCIS pursuant to section
208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C), pertaining to
unaccompanied children, as defined in 8 CFR 1001.1(hh)--to pursue an
asylum application before USCIS. This limitation on termination
requires the noncitizen to establish that they warrant termination
based on a form of relief that USCIS may adjudicate, but the noncitizen
may not seek termination for the purpose of pursuing an affirmative
asylum application before USCIS. Id. This limitation would also not
apply to joint or affirmatively unopposed motions to terminate for the
express purpose of permitting a noncitizen to pursue asylum before
USCIS where no other relief is being sought, as such motions would be
covered under termination provisions designed to address joint or
affirmatively unopposed motions. 8 CFR 1003.1(m)(1)(i)(G); 8 CFR
1003.18(d)(1)(i)(G).
Similarly, the Department declines to add a specific discretionary
termination ground for noncitizens with bona fide determinations from
USCIS. However, the Department notes that such evidence would be
relevant to an EOIR adjudicator's determination on any motion to
terminate. For example, such evidence may weigh heavily in favor of the
noncitizen under the factor concerning prima facie eligibility for
relief with USCIS.
Comment: One commenter recommended treating the discretionary
termination ground for T and U visa applicants in which the parties
have filed a motion to terminate under 8 CFR 214.11(d)(1)(i) or
214.14(c)(1)(i) as a mandatory termination ground. The commenter stated
that, because these grounds require a joint motion, it should be
subject to the mandatory ``joint or unopposed'' termination ground.
Response: In response to commenter concerns, the Department has
decided not to finalize the discretionary termination ground related to
T and U visas as proposed in the NPRM. As relevant here, a commenter
noted that in the proposed discretionary termination ground for U and T
visas, the cross-referenced DHS regulatory provisions--8 CFR
214.11(d)(1)(i) and 214.14(c)(1)(i)--discuss joint motions to
terminate. See, e.g., 8 CFR 214.11(d)(1)(i) (``In its discretion, DHS
may agree to the [noncitizen]'s request to file with the immigration
judge or the Board a joint motion to . . . terminate proceedings
without prejudice, . . . while an application for T nonimmigrant status
is adjudicated by USCIS.''). In turn, the proposed rule referenced
these T and U visa regulatory provisions under the discretionary
termination grounds. However, the Department now clarifies that any
jointly filed motions to terminate, including those referenced by these
provisions, should be considered under the mandatory ``joint or
unopposed'' motion termination ground. See 8 CFR 1003.1(m)(1)(i)(G),
1003.18(d)(1)(i)(G). Should any motions described in the DHS regulatory
provisions related to U and T visas be presented before EOIR, those
motions would constitute joint motions and would be governed by 8 CFR
1003.1(m)(1)(i)(G) or 1003.18(d)(1)(i)(G). Thus, the Department has
decided not to finalize the discretionary termination provision cross
referencing DHS's regulations addressing T and U visa applicants
because, as proposed, it was superfluous. Instead, such motions will be
controlled by the joint motions provisions finalized in this rule.
5. Specific Calls for Comments
i. Additional Constraints on Termination
Comment: Commenters recommended modifying the termination
provisions to state that immigration judges and the Board may not
terminate a case if the noncitizen objects to termination, unless
termination is required by law. Commenters stated that this would
ensure that noncitizens are not foreclosed from pursuing relief before
EOIR due to their removal proceeding being terminated.
Another commenter proposed allowing adjudicators to have the
discretion to terminate proceedings based on compelling humanitarian
grounds in rare and exceptional circumstances. In contrast, other
commenters stated that immigration judges should not be allowed to
terminate cases before a noncitizen has applied for relief outside of
EOIR, as such termination would be premature.
One commenter recommended creating an exhaustive list of
circumstances that would authorize an EOIR adjudicator to terminate or
dismiss cases, and further limiting such grounds to those where DHS
cannot sustain the charges of removability or where the noncitizen has
obtained lawful status or U.S. citizenship, or otherwise renders the
noncitizen no longer subject to removal.
Separately, a commenter recommended that, when DHS moves for
termination, the immigration judge should be required to explain the
effect of termination to pro se noncitizens and to solicit their views
before adjudicating the motion.
[[Page 46763]]
Response: First, the Department declines to remove an EOIR
adjudicator's ability to terminate proceedings over a party's
objection, whether that party be the noncitizen or DHS, with the
exception of discretionary motions to terminate for a noncitizen to
seek naturalization. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B) (``Where the basis of a noncitizen's motion for
termination is that the noncitizen is prima facie eligible for
naturalization, the [EOIR adjudicator] shall not grant the motion if it
is opposed by DHS.''). This limitation on the EOIR adjudicator's
ability to terminate for a noncitizen to seek naturalization when DHS
opposes is discussed in greater detail in section IV.F of this
preamble.
Notwithstanding the foregoing, as explained in response to a
similar request regarding administrative closure, see supra section
III.B.5.iii of this preamble, the Department believes that the
importance of providing EOIR adjudicators with the authority to take
``necessary or appropriate'' action for the disposition or alternative
resolution of cases weighs in favor of providing adjudicators with the
ability to terminate proceedings over a party's objection. See 8 CFR
1003.1(d)(1)(ii); 8 CFR 1003.10(b). Moreover, precluding an EOIR
adjudicator from terminating proceedings over a noncitizen's
objection--absent a conforming provision for a DHS objection to
termination--would result in a procedural imbalance between the
parties. Thus, for procedural fairness, the Department declines to add
a regulatory provision precluding the EOIR adjudicator from terminating
proceedings over the objection of one party.
Notably, the mandatory termination grounds cover situations in
which: the individual in proceedings is not removable, is a citizen, or
has obtained certain legal status; both parties have jointly requested,
or one party has affirmatively non-opposed, termination; fundamentally
fair proceedings are not possible due to mental incompetency; or
termination is otherwise required by law. See 8 CFR 1003.1(m)(1)(i),
1003.18(d)(1)(i). Thus, mandatory termination is intended for scenarios
where removal proceedings are no longer needed, even despite possible
party objections. Thus, the Department does not anticipate that
noncitizens generally would object to termination of proceedings when
the foregoing termination grounds are implicated; rather, the
Department believes that noncitizens more likely will be requesting
termination or will be joining or affirmatively indicating non-
opposition to a DHS motion in these scenarios.
Similarly, for discretionary termination, the Department notes that
the enumerated discretionary termination grounds are mainly focused on
allowing parties to request termination when a noncitizen may be
eligible for a lawful status outside of removal proceedings. See, e.g.,
8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii) (discretionary termination
grounds include, for example, noncitizens pursuing relief with DHS or
who are the beneficiaries of certain programs). Therefore, the
Department believes that, in most cases, noncitizens will be requesting
or unopposed to discretionary termination under these provisions.
Moreover, even if a noncitizen were to object to a DHS motion to
terminate, the Department anticipates that termination over a
noncitizen's objection would be rare, particularly where the noncitizen
wishes to continue pursuing a relief application in removal
proceedings.
However, for clarity, and as explained further in section IV of
this preamble, the Department is modifying the rule's discretionary
termination language to explicitly state that an EOIR adjudicator
``shall consider the reason termination is sought and the basis for any
opposition to termination when adjudicating the motion to terminate.''
8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii). The Department believes that
this addition will help further clarify that arguments related to a
motion for discretionary termination, and particularly any opposition
to such a motion, will be considered by the EOIR adjudicator in the
course of adjudicating the motion, consistent with longstanding motions
practice. See generally Immigration Court Practice Manual, ch. 5; BIA
Practice Manual, ch. 5, <a href="https://www.justice.gov/eoir/manuals-and-memoranda">https://www.justice.gov/eoir/manuals-and-memoranda</a>.
Further, should either party disagree with the EOIR adjudicator's
decision regarding termination, then filing a motion to reconsider the
decision or an appeal of the decision may be options for redress. See
generally 8 CFR 1003.23 (motions to reconsider), 1003.38 (appeals); see
also Matter of Sanchez-Herbert, 26 I&N Dec. 43 (considering appeal of
immigration judge's decision to terminate proceedings).
Next, the Department declines to expand the termination grounds to
allow EOIR adjudicators to terminate proceedings based on certain
humanitarian grounds, absent DHS consent. As explained in the NPRM, the
Department limited such authority to avoid encroaching on DHS's sole
authority to commence removal proceedings, or to exercise prosecutorial
discretion where relevant. 88 FR at 62264-65; see also 8 CFR 239.1(a)
(providing DHS with sole discretion to commence removal proceedings).
For example, as the Board observed in Matter of M-F-O-, an immigration
judge should not terminate proceedings based on the view that the
respondent is a low enforcement priority. 28 I&N Dec. 408, 415 n.11
(BIA 2021) (``Although the respondent argues on appeal that he is a low
enforcement priority and that his removal proceedings should be
terminated or dismissed without prejudice on this basis, it is within
[DHS]'s prerogative to exercise prosecutorial discretion in that
manner.'' (citing Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. at 170 &
n.3)).
Further, the Department declines to limit discretionary termination
authority to only the specified circumstances listed in the rule, 8 CFR
1003.1(m)(1)(ii)(A) through (E); 8 CFR 1003.18(d)(1)(ii)(A) through
(E), as commenters suggested. The Department included a limited catch-
all ground for circumstances comparable to the enumerated discretionary
termination grounds where such termination is ``necessary or
appropriate for the disposition or alternative resolution of the
case.'' 8 CFR 1003.1(m)(1)(ii)(F), (m)(2)(ii), 1003.18(d)(1)(ii)(F),
(d)(2)(ii). The Department believes that this provision will help
ensure EOIR adjudicators have sufficient authority to terminate
proceedings when necessary or appropriate, particularly in new or
unique circumstances not contemplated by this rule. The Department also
notes that this catch-all ground includes specific limitations to
prevent unfettered termination, such as prohibiting EOIR adjudicators
from terminating a case ``for purely humanitarian reasons, unless DHS
expressly consents to such termination, joins in a motion to terminate,
or affirmatively indicates its non-opposition to a noncitizen's
motion.'' Id.
In the course of this rulemaking, the Department has reevaluated
the discretionary termination ground for cases in which a noncitizen is
pursuing outside relief with USCIS. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). After additional consideration, the Department is
concerned that the language in the proposed rule, absent any additional
limitations, could be read to authorize the termination of a case for
the express purpose of allowing a noncitizen to apply for asylum before
USCIS, other than a noncitizen who has filed an asylum application with
USCIS
[[Page 46764]]
pursuant to section 208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C),
pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
The final rule precludes such a result, as consistent with the NPRM.
See 88 FR at 62264 (explaining that ``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'' and stating that ``the default rule that EOIR
adjudicators continue to exercise authority over asylum applications
filed by noncitizens in removal proceedings would continue to apply'').
These revisions are more consistent with the overall regulatory
structure, as 8 CFR 1208.2(b) provides that immigration judges ``have
exclusive jurisdiction over asylum applications filed by [a noncitizen]
. . . after the charging document has been filed with the Immigration
Court.''
Accordingly, the Department has modified these provisions to
clarify that an EOIR adjudicator shall not terminate a case for a
noncitizen to pursue an asylum application before USCIS, except as
provided for in 8 CFR 1003.1(m)(1)(ii)(A) and 1003.18(d)(1)(ii)(A). 8
CFR 1003.1(m)(1)(ii)(B) (Board), 1003.18(d)(1)(ii)(B) (immigration
judges).
Relatedly, the Department has modified the discretionary
termination ground focusing on petitions, applications, or other
actions that a noncitizen pursues with USCIS to include language
requiring that the noncitizen has filed such application, petition, or
other action before termination may be granted, though no filing is
required where the noncitizen is prima facie eligible for adjustment of
status or naturalization. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). Thus, the Department believes that this change is
responsive to commenter concerns that EOIR adjudicators ``should not be
allowed to terminate cases before a noncitizen has applied for relief
outside of EOIR.'' This change is discussed further at section IV.G of
this preamble.
The Department declines to amend the rule's termination provisions
to include special rules applicable to unrepresented noncitizens, as
commenters suggested. The Department is cognizant of the
``disadvantages faced by uncounseled noncitizens,'' Quintero v.
Garland, 998 F.3d 612, 627 (4th Cir. 2021), and acknowledges that the
immigration judge's ``duty to fully develop the record'' is
``especially crucial in cases involving unrepresented noncitizens,''
id. However, the Department declines to adopt different procedural
rules based on representation status, which present administrability
concerns as representation status can change throughout proceedings.
Rather, the Department believes that immigration judges will adequately
explain the implications of a motion to terminate to an unrepresented
noncitizen, as well as solicit the noncitizen's position on termination
prior to ruling on a motion, as these actions are already part of an
immigration judge's duty to develop the record.
ii. Termination Without Prejudice to DHS
Comment: Commenters stated that terminations should not be
automatically considered ``without prejudice,'' explaining that this
would limit finality for noncitizens in removal proceedings and may
violate the claim preclusion doctrine and the structure of the INA,
which commenters stated should prevent DHS from reinitiating
proceedings based on the same facts. Another commenter suggested that
the Department codify a list of non-exhaustive scenarios in which
termination with prejudice may be warranted, including circumstances
involving: (1) dilatory conduct by DHS, including filing multiple
Notices to Appear and failure to prosecute; (2) DHS counsel repeatedly
appearing for hearings unprepared or failing to disclose evidence; (3)
DHS counsel's failure to attend any hearings; (4) subsequent judicial
decisions; (5) the granting of benefits to respondent by USCIS; and (6)
the violation of settlement agreements or injunctions.
Response: The Department declines to delineate via regulation
whether termination of proceedings should be with or without prejudice.
EOIR adjudicators have the authority to take ``any action consistent
with their authorities . . . as necessary or appropriate for the
disposition or alternate resolution of the case,'' and this authority
includes termination of proceedings, as guided by the individual facts
and circumstances of the case. 8 CFR 1003.1(d)(1)(ii), 1003.10(b); see
id. Sec. Sec. 1003.1(m)(2)(ii), 1003.18(d)(2)(ii). The Department is
of the belief that further delineating the specific scenarios suggested
by commenters where termination of proceedings would be ``with
prejudice'' does not provide EOIR adjudicators the needed flexibility
to consider the individual facts and circumstances of each case.
Relatedly, should a noncitizen's proceedings before EOIR be
terminated, and should DHS place that same noncitizen into new
proceedings before EOIR, then EOIR adjudicators have the ability and
expertise to determine whether DHS's initiation of new proceedings is
impacted in any way by the prior termination order.
In declining to introduce termination prejudice standards by
regulation, the Department notes that, in many circumstances,
termination of removal proceedings is without prejudice. See, e.g.,
B.R. v. Garland, 26 F.4th 827, 840 (9th Cir. 2022) (explaining that the
remedy for certain regulatory violations is termination without
prejudice). The Department further notes that for a ``decision by an
immigration judge [to have] a preclusive effect'' an ``issue must have
been actually litigated,'' and ``the determination of the issue'' must
have been necessary to the judgement. Islam v. Sec., Dep't of Homeland
Security, 997 F.3d 1333, 1341 (11th Cir. 2021) (internal quotation
marks omitted); see Ali v. Barr, 951 F.3d 275, 283 (5th Cir. 2020);
Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008). Moreover,
``a dismissal without prejudice is not a decision on the merits for
purposes of res judicata.'' Abpikar v. Holder, 544 F.App'x 719, 721
(9th Cir. 2013) (quoting Oscar v. Alaska Dep't of Educ. & Early Dev.,
541 F.3d 978, 981 (9th Cir. 2008)).
In sum, the Department is confident that EOIR adjudicators are
equipped to make a determination as to the appropriateness of
termination of proceedings in each individual case, and therefore, the
Department declines to adopt standards governing the issue of
termination ``with prejudice'' in this rulemaking.
iii. Sua Sponte Termination
Comment: Commenters generally opposed inclusion of sua sponte
termination authority. Commenters stated that, if an adjudicator
believes termination is appropriate, the adjudicator should invite both
parties to share their views on termination and treat such views as
oral or written motions. Commenters explained that this would allow the
parties to provide valuable input, particularly noncitizens who may
wish to proceed with their removal proceedings to pursue relief. Other
commenters stated that, if the Department includes sua sponte
termination authority, parties should be provided proper notice,
including a proposed 60-day notice of intent to terminate.
Additionally, commenters stated that any sua sponte termination
authority should not be allowed over a noncitizen's objection.
[[Page 46765]]
Response: After consideration, the Department has decided not to
provide for sua sponte termination authority when termination is not
mandatory. Accordingly, the Department has modified the regulatory text
to make clear that a motion from a party is required before an EOIR
adjudicator may terminate a case in the exercise of discretion. See 8
CFR 1003.1(m)(1)(ii), (m)(2)(ii), 1003.18(d)(1)(ii), (d)(2)(ii). The
Department wishes to ensure that the parties are able to provide
evidence and arguments in support or opposition to discretionary
termination before the EOIR adjudicator makes such a determination. As
explained by commenters, there may be instances, for example, when a
noncitizen may oppose discretionary termination because they wish to
pursue relief before EOIR. However, the Department notes that, in
practice, if the adjudicator believes that termination of proceedings
may be an appropriate disposition of the case, the adjudicator can
raise that issue with the parties. If a party is then interested in
seeking termination, the adjudicator may inquire whether the party
wishes to move for termination. For those cases before the Board, the
adjudicator may request supplemental briefing from the parties to
ensure that the positions of the parties are considered as part of the
decision whether to terminate proceedings. 8 CFR 1003.3(c). This
ensures that the parties can indicate their positions on termination
for the record prior to the adjudicator ruling upon the motion to
terminate.
iv. Evidence Required
Comment: Some commenters stated that noncitizens should not be
required to produce evidence of a filing with USCIS as a prerequisite
for termination, as such filings may take a significant amount of time
to prepare. Commenters noted that such a requirement would, therefore,
keep cases on the immigration judge's docket unnecessarily while such
filings were being completed. Rather, commenters believed that a
finding of prima facie eligibility for relief before USCIS should be
sufficient to terminate proceedings. In contrast, other commenters
stated that proof of filing with USCIS should be required, but that
United States Postal Service (``USPS'') tracking or signature
confirmation, along with a copy of the application, should be
sufficient.
Other commenters recommended that, for purposes of terminating
based on underlying legal status, the rulemaking should explicitly
state that immigration judges may accept any credible evidence of legal
status. Commenters noted that they previously encountered issues with
the availability of specific evidence requested by immigration judges,
which resulted in the denial of their motions to terminate.
Response: After further consideration, the Department is modifying
the relevant discretionary termination ground to require proof of
filing with USCIS as a prerequisite to termination. Specifically, the
Department has modified the discretionary termination ground focusing
on petitions, applications, or other actions that a noncitizen pursues
with USCIS seeking relief from removal or lawful status, to include
language requiring that the noncitizen has filed such application,
petition, or other action. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). In making this change, the Department also
included an exception to this USCIS filing requirement for prima facie-
eligible adjustment of status applications, so as not to preclude USCIS
from accepting adjustment applications because a noncitizen is in
removal proceedings. See id.
The Department believes this change will help ensure that EOIR is
not prematurely terminating proceedings when a relevant application has
not yet been filed with USCIS. This filing requirement will also help
DHS and EOIR efficiently monitor the status of noncitizens by ensuring
that a noncitizen placed into removal proceedings either files an
application with USCIS or remains in removal proceedings until final
adjudication. Moreover, in cases in which the noncitizen is in the
process of preparing their application for filing with USCIS, they may
request continuances or administrative closure before EOIR, as
relevant, in the interim. If their requests are granted, continuances
or administrative closure could significantly reduce the active
resources being devoted to the noncitizen's case while they prepare
their application for filing. Thus, the Department disagrees with
commenter concerns that leaving such cases on the EOIR adjudicator's
calendar or docket while noncitizens prepare their applications for
filing would necessarily be less efficient than terminating
proceedings, even where such filings may take a significant amount of
time to complete. Additionally, there is a possibility that--despite
the party's stated intent--the relevant petition, application, or
action will never successfully be filed with USCIS. To avoid this
scenario after proceedings have already been terminated, the Department
has added a requirement that the party seeking discretionary
termination under this provision must provide proof of filing with
USCIS before the EOIR adjudicator may terminate proceedings, unless the
specific petition, application, or action is excepted from the filing
requirement. 8 CFR 1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
Separately, the Department declines to include explicit language
regarding substantive evidentiary standards for motions to terminate.
The rule does not limit the types of evidence that an EOIR adjudicator
may consider in making a termination decision. Rather, the rule
provides EOIR adjudicators with the flexibility to determine whether
any submitted evidence is sufficient to grant termination. See
generally Matter of Interiano-Rosa, 25 I&N Dec. at 265 (``Immigration
[j]udges have broad discretion . . . to admit and consider relevant and
probative evidence.''). Imposing an ``any credible evidence'' standard,
as proposed by commenters, may be too lenient in some circumstances, as
an EOIR adjudicator may determine that certain relevant evidence is
necessary before granting termination in a specific case.
D. Sua Sponte Reopening or Reconsideration and Self-Certification
Comment: Commenters expressed support for restoring the Board's
traditional authority to sua sponte reopen or reconsider a case, as
well as support for restoration of the Board's self-certification
authority, noting that these changes provide important procedural
protections and provide noncitizens with an avenue to pursue newly
available relief.
One commenter recommended providing a non-exhaustive list of
circumstances that would qualify as ``exceptional circumstances'' for
sua sponte reopening or reconsideration. Another commenter recommended
renaming sua sponte reopening to ``reopening in the interests of
justice,'' in order to avoid confusion as parties are often requesting
the immigration judge or the Board to exercise their sua sponte
reopening authority.
In contrast, another commenter raised concerns with this sua sponte
authority, stating that it raised finality concerns for noncitizens
whose cases have been positively resolved. As a result, the commenter
recommended providing for automatic stays if the Board sua sponte
reopened proceedings or, alternatively, guidance on granting
discretionary stays in such circumstances.
Separately, commenters also recommended instituting a ``mailbox
rule'' at the Board as an additional alternative to self-certification
or sua sponte authority. Commenters
[[Page 46766]]
explained that such a rule, which would treat a document as timely once
mailed, would provide another avenue for remedying filings that arrive
late.
Additionally, one commenter proposed an amendment to the
regulations governing motion to reopen time and numerical limitations,
which the AA96 Final Rule had modified to include additional exceptions
as a safety valve when curtailing adjudicators' sua sponte reopening
authority. Specifically, the commenter requested the Department add an
additional exception to the motion to reopen time and numerical
limitations for when DHS affirmatively non-opposes a motion to reopen.
The commenter noted that there is an existing exception to the time and
numerical limitations for joint motions to reopen, and requested the
language be modified to use the ``joint and affirmatively unopposed''
standard from motions to terminate in this rulemaking.
Response: After further consideration, the Department declines to
delineate specific scenarios that would qualify as ``exceptional
circumstances'' for sua sponte purposes. As explained in the NPRM, the
Department believes that the current standard is a workable standard,
see 88 FR at 62266, and if further clarity is needed, specific
scenarios can be addressed through the publication of Board decisions,
as necessary, see id. Further, the Department believes that changing
the terminology of sua sponte authority, which has been consistent in
use for decades, would give rise to greater confusion than its use
engenders and therefore declines to rename sua sponte authority. See,
e.g., Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998).
The Department also declines to add explicit stay-related language
to cover scenarios when the Board sua sponte reopens or reconsiders
proceedings. Under current regulations, orders of removal are stayed
while an appeal is pending, and any case that is reopened or
reconsidered would return to a pending posture. See 8 CFR 1003.6(a)
(stating that a removal order ``shall not be executed . . . while an
appeal is pending . . . .''). Additionally, in cases where a party
files a motion for sua sponte reopening or reconsideration, the party
may make a request for a discretionary stay while the motion is
pending, and EOIR has published guidance on discretionary stays in its
Practice Manuals. See Immigration Court Practice Manual, ch. 8.3; BIA
Practice Manual, ch. 6.3, <a href="https://www.justice.gov/eoir/manuals-and-memoranda">https://www.justice.gov/eoir/manuals-and-memoranda</a>.
The Department further declines to retain an AA96 Final Rule
provision that added limited exceptions to the motion to reopen time
and number bars, which the AA96 Final Rule had added only to address
some of the effects of limiting sua sponte authority. See 85 FR at
81654 (excusing time or number bars where ``a three-member panel of the
Board agrees that reopening is warranted'' based upon ``a material
change in fact or law underlying a removability ground or grounds
specified in section 212 or 237 of the Act that occurred after the
entry of an administratively final order that vitiates all grounds of
removability''). The Department believes that, by recodifying
longstanding sua sponte reopening and reconsideration authority,
Appellate Immigration Judges are able to exercise their discretion to
consider untimely or number-barred motions to reopen or reconsider
cases as appropriate, including scenarios covered by those limited
exceptions. As noted in the NPRM, sua sponte reopening and
reconsideration is a well- established and recognized practice that has
``operated under a workable scheme.'' 88 FR at 62266.
The Department also declines to modify the existing motion to
reopen time and numerical limitation standards to include an exception
for affirmatively unopposed motions. This rulemaking focused, as
relevant, on whether to retain, modify, or rescind the AA96 Final Rule,
which did not make any changes to the joint motion exception for motion
to reopen time and number limitations. The Department notes that
potential modifications to motion to reopen standards are the subject
of a separate future rulemaking under consideration. See Motions to
Reopen and Reconsider; Effect of Departure; Stay of Removal, RIN 1125-
AB01, <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202304&RIN=1125-AB01">https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202304&RIN=1125-AB01</a>.
Further, and as explained earlier, in section III.A of this
preamble, the Department declines to add a broad ``mailbox rule'' to
this rulemaking, which is focused on the particular provisions of the
AA96 Final Rule, as well as administrative closure and termination
authority.
E. Board Findings of Fact--Voluntary Departure
Comment: Commenters raised concerns about the Board providing
proper notice to noncitizens if allowed to grant voluntary departure in
the first instance. Commenters explained that noncitizens or their
attorneys of record often do not receive timely notice from the Board
and noted that, if the Board granted voluntary departure in the first
instance, the potential delay in receiving the Board's voluntary
departure order would create difficulties for noncitizens who need to
post voluntary departure bond, which, as proposed in the NPRM, would
have been required to be posted within 10 days of issuance of the
Board's voluntary departure order. As a result, commenters suggested
increasing the bond posting timeline to 30 days.
Response: In light of commenter concerns and in recognition of the
fact that Board orders are generally served by mail and received
without advance warning--unlike orders of immigration judges, which are
frequently served in person on the date of the final hearing on the
merits of the voluntary departure request--the Department is further
amending the time period for posting the voluntary departure bond. The
final rule now states that the Board shall advise the noncitizen of the
duty to post the bond with the ICE Field Office Director within 30
business days of the Board's order granting voluntary departure. 8 CFR
1240.26(k)(4). The Department believes this 30-day period will allow
noncitizens adequate time to post a voluntary departure bond when the
Board, rather than the immigration judge, grants voluntary departure in
the first instance.
F. Background Check
Comment: Commenters raised concerns that there is insufficient
recourse for noncitizens whose identity checks are not completed in a
timely manner by DHS. Therefore, commenters suggested adding a process
in which a noncitizen may request the Board to require DHS to meet its
obligations under 8 CFR 1003.47(d) or, alternatively, provide a limit
as to the amount of time a case may remain pending with the Board
solely to complete a background check before it is required to be
remanded to the immigration court.
Another commenter recommended that the background check provision
should permit the Board to remand a case to an immigration judge
without a motion from DHS if the noncitizen fails to complete their
background check, which the commenter believed would best allow the
noncitizen an opportunity to present evidence regarding their failure
to complete their background check to an immigration judge,
safeguarding due process, especially for pro se noncitizens. The
commenter also recommended adding language to 8 CFR 1003.1(d)(6)(iii)
requiring an immigration judge to consider whether the noncitizen had
good cause for failing to comply with
[[Page 46767]]
background check requirements in instances where the case was remanded
to the immigration court.
Alternatively, one commenter stated that the rule should retain the
AA96 Final Rule's background check provision, which deemed a
noncitizen's failure to comply with background check requirements as an
automatic abandonment of their underlying applications, absent a
showing of good cause. The commenter believed this provision would best
promote efficiency, while safeguarding the noncitizen's ability to
explain their failure to comply with background check requirements in
the event of unusual or unpredictable hardships.
Response: The Department declines to incorporate the commenters'
suggested changes to the background check provisions. As explained in
the NPRM, the Department is retaining some changes made by the AA96
Final Rule that were intended to reduce remands to the immigration
court solely for completion of the required background checks. See 88
FR at 62270. The Department continues to believe that remanding cases
solely for the completion of background checks is an unnecessary
procedural step that creates inefficiencies in EOIR's case processing.
Id.
The Department disagrees with commenter concerns that the rule
contains insufficient protections for noncitizens whose identity checks
are not completed in a timely manner. When the Board places a case on
hold for completion of any necessary background checks, the rule
requires DHS to ``report to the Board promptly when'' the required
checks or investigations ``have been completed or updated.'' 8 CFR
1003.1(d)(6)(iii). If DHS fails to report the results of those checks
or investigations to the Board within 180 days of the Board's notice
that the case is being placed on hold, the Board may either continue to
hold the case or remand to the immigration judge for further
proceedings under 8 CFR 1003.47(h). Id. Thus, the Board has discretion
to continue to hold a case pending DHS's completion of background
checks or to remand to the immigration court, depending on the
circumstances of each case. Further, in exercising that discretion, the
Board can request a status update from DHS as needed and determine
whether a remand is necessary based on that update. For example, DHS
may notify the Board that a pending background check will be imminently
completed, which would weigh in favor of holding the case at the Board.
As such, this provision accounts for the Department's efficiency
interests in avoiding unnecessary remands, see 88 FR at 62270, while
still permitting remands based on individual circumstances. Further,
this rule does not affect a party's ability to file a motion to remand
in the event of newly available evidence or eligibility for relief. See
BIA Practice Manual, ch. 5.8 (explaining purpose, standards of, and
limitations on motions to remand and stating that ``[p]arties may, in
appropriate circumstances, move to remand proceedings to the
immigration judge to consider newly available evidence or newly
acquired eligibility for relief'').
The Department also declines to adopt suggested revisions that
would permit the Board to remand a case to the immigration court based
on a noncitizen's failure to comply with background check requirements
absent a motion from DHS. Because DHS is charged with conducting the
relevant background checks, the Department continues to believe that
DHS is in the best position to move for a remand where necessary as a
result of noncompliance with background check requirements. Further,
the Department does not believe it is necessary to impose an explicit
regulatory requirement that, upon remand, immigration judges must
consider whether a noncitizen demonstrated good cause for failing to
comply with background check requirements. Under existing regulatory
authority, when a case is remanded pursuant to 8 CFR 1003.1(d)(6),
immigration judges must consider new information obtained as a result
of background checks and may hold an additional hearing to consider
``any legal or factual issues'' if presented with new information. 8
CFR 1003.47(h). The Department believes that this provision
sufficiently authorizes immigration judges to evaluate relevant
information when the Board remands a case due to noncompliance with
background check requirements.
Finally, as explained in the NPRM, the Department declines to
retain the AA96 Final Rule's provision deeming a noncitizen's failure
to comply with background check requirements at the Board as an
automatic abandonment of the underlying applications for relief absent
a showing of good cause. 88 FR at 62270. Rather, the Department
believes that this rule, by returning to pre-AA96 Final Rule regulatory
language permitting the Board to, upon a motion from DHS, remand a case
to the immigration court to consider a noncitizen's noncompliance in
evaluating whether the underlying relief should be denied, furthers the
Department's efficiency interests while accounting for scenarios where
a remand to the immigration judge may be most appropriate. Id. The
Department is confident that in cases where DHS moves the Board to
remand and the Board does so, immigration judges will appropriately
consider both the fact that a noncitizen failed to comply with
background check requirements and their reasons for doing so when
determining whether underlying applications for relief should be denied
as a matter of law or a matter of discretion. See 8 CFR 1003.47(h)
(stating that in cases remanded from the Board pursuant to 8 CFR
1003.1(d)(6), ``the immigration judge shall consider the results of the
identity, law enforcement, or security investigations or examinations
subject to the provisions of this section'' and, if presented with new
information, ``may hold a further hearing if necessary to consider any
legal or factual issues, including issues relating to credibility, if
relevant'').
G. Adjudication Timelines
Comment: One commenter supported removing the AA96 Final Rule's
adjudication timelines, including the time frames on summary dismissals
at the Board, but recommended that the Department should further limit
the Board's summary dismissal authority. The commenter recommended
limiting summary dismissals of appeals to those that are (1) filed on a
form of relief already granted to th
[…truncated; see source link]Indexed from Federal Register on May 29, 2024.
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